MOTOR BRAND DESIGN – TERMS AND CONDITIONS
1 AGREEMENT
(a) Where the Client:
(i) executes the Project Quote and Authorisation, which these terms and conditions are incorporated into by reference; and/or
(ii) continues to provide Motor Brand Design with instructions in relation to the Services, the Client shall be deemed to have accepted the terms and conditions set out in this Agreement in relation to the supply of the Services with effect from the Commencement Date.
(b) This Agreement commences on the Commencement Date and continues in force until the Completion Date unless terminated earlier under this Agreement.
(c) To the extent of any inconsistency between these terms and conditions and any Project Quote and Authorisation or such other agreed document, the provisions of these terms and conditions shall prevail to the extent of the inconsistency.
2 SUPPLY OF SERVICES
(a) Motor Brand Design agrees to perform, and the Client agrees to accept the performance of, the Services in accordance with this Agreement.
(b) Motor Brand Design must deliver the Deliverables to the Client with due care and skill and in accordance with this Agreement and the Services are deemed to be completed upon delivery of all Deliverables by Motor Brand Design to the Client.
(c) Motor Brand Design may subcontract any part of the Services without the Client’s prior written consent.
3 PRICE AND PAYMENT
(a) The Client must:
(i) pay the Fees;
(ii) pay any other charges for additional Services as may be agreed between the parties from time to time; and
(iii) reimburse the full amount of all reasonable costs incurred by Motor Brand Design in supplying the Services provided that such reasonable costs were approved in writing by the Client before such costs were incurred by Motor Brand Design, to Motor Brand Design in accordance with this Agreement.
(b) Unless otherwise stated in the Project Quote and Authorisation or such other agreed document, Motor Brand Design may issue:
(i) an initial invoice to the Client for 50% of the Fees at the Commencement Date;
(ii) invoices to the Client for payment in respect of any part of the outstanding Fees in the frequency to be determined by Motor Brand Design in its sole discretion; and
(iii) a final invoice to the Client for the remainder of the outstanding Fees at the Completion Date.
(c) The Client must pay each invoice within 30 days from the date of the relevant invoice.
(d) Motor Brand Design may, without prejudice to any other remedy available to it, charge interest on any sum due and unpaid by the Client at the rate of interest for the time being fixed under the Penalty Interest Rates Act 1983 (Vic) plus 2%, and such interest accrues from day to day from and including the due date for payment up to the actual date of payment.
(e) If the Client fails to make any payment in accordance with this Agreement or fails to comply with any provisions of this Agreement, Motor Brand Design may, without prejudice to any other remedy available to it, cancel or suspend any unperformed Services until such payment is made.
4 GST
(a) Terms defined in the GST Act have the same meanings when used in this clause 4.
(b) Unless otherwise stated, all Fees and other amounts payable under or in accordance with this Agreement are expressed as being exclusive of GST.
(c) If any GST is payable on any taxable supply made under this Agreement to the recipient by Motor Brand Design, then:
(i) the recipient must pay the GST to the Motor Brand Design on the earlier of the time of making payment of any monetary consideration on which the GST is calculated and the issue of an invoice relating to the taxable supply;
(ii) the recipient must pay the GST in the same manner as the manner of making payment of any monetary consideration on which the GST is calculated; and
(iii) Motor Brand Design must provide as a precondition for payment by the recipient of the GST a tax invoice.
(d) If the GST payable in relation to a supply made under or in connection with this Agreement varies from the additional amount paid by the recipient under clause 4(c), then Motor Brand Design will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the recipient.
5 INTELLECTUAL PROPERTY RIGHTS
Background IP
(a) The parties acknowledge and agree that:
(i) all right, title and interest in the Background IP remains vested in its owner; and
(ii) each party acquires no right, title or interest in or to the Background IP of the other party by virtue of this Agreement or the disclosure or use of the Background IP in the course of the performance of the Services, other than as expressly set out in this Agreement.
(b) Each party grants to the other party a non-exclusive, royalty-free, non-transferable licence to use the Background IP owned by it to the extent necessary and for the sole purpose of the performance of the Services, and in the case of Motor Brand Design as the owner of the Background IP, to enable the Client to use the Project IP or the Deliverables.
Project IP
(c) Unless otherwise expressly agreed, the Client acknowledges that all right, title and interest in the Project IP vests in Motor Brand Design with effect from its creation.
(d) Upon payment by the Client of all Fees and other charges and costs payable in respect of the Services, Motor Brand Design grants to the Client a non-exclusive, perpetual, non-assignable licence to reproduce the Deliverables and use all Project IP comprised in the Deliverables or Services.
(e) Where the parties otherwise agree in writing that the Intellectual Property Rights in the Deliverables are to be assigned to the Client:
(i) all Intellectual Property Rights created in the course of Motor Brand Design’s development of the Deliverables that do not form part of the Deliverables; and
(ii) any Background IP belonging to Motor Brand Design, are expressly excluded from any such an assignment.
(f) Intellectual Property Rights which are assignable to the Client shall not pass in title until all amounts payable to Motor Brand Design by the Client are paid in full.
6 CONFIDENTIAL INFORMATION
(a) For the purposes of this Agreement, Confidential Information means all information (whether written, oral or in electronic form or any other form) of or relating to a party (Disclosing Party) which is disclosed to another party (Receiving Party) including all business operation information, client names and lists, terms and conditions of supply, marketing analysis, research and reports and all information relating to technology, processes, products, specifications, prototypes or designs, trade secrets and knowhow and any information which is either:
(i) identified as confidential by the Disclosing Party at the time of disclosure; or
(ii) of a nature which should reasonably be regarded by the Receiving Party as confidential.
(b) Nothing in this clause 6 is to be treated as prohibiting or restraining any information which:
(i) was in the public domain when it was disclosed to the Receiving Party;
(ii) becomes, after being given to the Receiving Party, part of the public domain, except through disclosure contrary to this Agreement or another obligation of confidence;
(iii) was lawfully in the Receiving Party’s possession at the time of disclosure on a non-confidential basis;
(iv) the Receiving Party lawfully receives from a third party that has the right to disclose it to the Receiving Party; or
(v) the Receiving Party is required by law, an order of a court or tribunal or the requirements of a recognised stock exchange to disclose.
(c) The Receiving Party must:
(i) use the Confidential Information of the Disclosing Party solely as contemplated by this Agreement, unless further use or disclosure of the Confidential Information is specifically authorised in writing by the Disclosing Party;
(ii) keep all Confidential Information of the Disclosing Party secret and confidential;
(iii) use reasonable care to protect the Confidential Information of the Disclosing Party, whether in storage or in use, against public disclosure; and
(iv) not disclose the Confidential Information of the Disclosing Party to, or in the presence of, any director, officer, employee, adviser, financier, potential financier or agent of the Receiving Party, unless that person:
(A) requires the information for the purposes of this Agreement; and
(B) has first made an undertaking in writing to keep that Confidential Information strictly confidential on terms at least as onerous as this clause 6.
(d) The Receiving Party must:
(i) promptly notify the Disclosing Party if it becomes aware of any breach of confidentiality by any person to whom it has divulged Confidential Information of the Disclosing Party or who has become aware of Confidential Information of the Disclosing Party; and
(ii) provide the Disclosing Party and each other party all reasonable assistance in connection with any proceedings against such person for breach of confidentiality or otherwise.
(e) The Receiving Party must, as soon as practicable (but in any event within ten Business Days) after receipt of a request from the Disclosing Party, return to the Disclosing Party:
(i) all Confidential Information of the Disclosing Party; and
(ii) all copies of that Confidential Information made by the Receiving Party’s directors, officers or employees or any other person to whom the Receiving Party disclosed the Confidential Information in accordance with this Agreement, except to the extent that the Receiving Party is required by law to keep that information as part of its business records.
(f) If the Receiving Party has generated its own internal documents containing any Confidential Information of the Disclosing Party, then:
(i) those documents may be destroyed rather than returned to the Disclosing Party; and
(ii) the Receiving Party must provide to the Disclosing Party written confirmation that such destruction has taken place.
7 MARKETING
(a) Motor Brand Design shall be permitted to use the Client’s name in any press release, advertising or other promotional material.
8 WARRANTIES AND INDEMNITY
(a) Each party represents and warrants to the other party that, as at the Commencement Date:
(i) the execution and delivery of this Agreement has been properly authorised by all necessary corporate or other action;
(ii) it has full corporate or statutory power and authority to execute and deliver this Agreement and perform or cause to be performed its obligations under this Agreement;
(iii) this Agreement constitutes a legal, valid and binding obligation on it; and
(iv) this Agreement does not conflict with, or result in the breach of, or default under, the provision of any constituent documents or any material term or provision of any agreement or deed or any writ, order or injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound.
(b) Except where the Deliverables or Services are based on Client Resources supplied by the Client, Motor Brand Design warrants that all Deliverables or Services provided by Motor Brand Design pursuant to this Agreement do not infringe any existing Intellectual Property Rights or other rights of any third party.
(c) The Client warrants that:
(i) all Client Resources provided to Motor Brand Design for the performance of the Services by Motor Brand Design are correct, complete and not misleading in any material respect;
(ii) it has obtained all necessary permissions for the agreed use of any Client Resources supplied by the Client to Motor Brand Design which are necessary in order for Motor Brand Design to use such material in conjunction with the Deliverables or Services; and
(iii) it has relied on its own skill and judgment or, alternatively, on the skill and judgment of the professional advisers retained by it to provide advice and assistance on the suitability of the Services for the Client’s specific purposes and procedures, and Motor Brand Design expressly disclaims any warranties as to the fitness for purpose of the Deliverables or Services.
(d) Motor Brand Design indemnifies, keeps indemnified and holds harmless the Client in respect of all claims, actions, suits, proceedings, demands, damages, losses, costs, charges and other expenses whatsoever arising out of or in connection with:
(i) any material breach of this Agreement;
(ii) any actual infringement of third party Intellectual Property Rights in relation to the Client’s use of the Deliverables in accordance with this Agreement; and
(iii) any gross negligence or wilful misconduct by Motor Brand Design or its officers, employees, agents or subcontractors (and any of their respective officers, employees, agents or subcontractors),
except to the extent that any such claims, actions, suits, proceedings, demands, damages, losses, costs, charges or other expenses are due to the negligence or wilful misconduct of the Client or any of its officers, employees, agents or subcontractors.
(e) The Client indemnifies, keeps indemnified and holds harmless Motor Brand Design in respect of all claims, actions, suits, proceedings, demands, damages, losses, costs, charges and other expenses whatsoever arising out of or in connection with:
(i) any material breach of this Agreement;
(ii) the inaccuracy of any representation or warranty made by the Client under this Agreement; and
(iii) any claim relating to the inappropriate use, or use without permission of any Client Resources provided by the Client to Motor Brand Design or any infringement of third party Intellectual Property Rights relating to such use,
except to the extent that any such claims, actions, suits, proceedings, demands, damages, losses, costs, charges or other expenses are due to the negligence or wilful misconduct of Motor Brand Design or any of its officers, employees, agents or subcontractors.
(f) Motor Brand Design’s maximum aggregate liability to the Client arising out of or in connection with this Agreement is limited to 100% of the Fees paid by the Client to Motor Brand Design in the 12 months before the date on which the cause of action arose.
(g) Motor Brand Design must during the term of this Agreement, at its cost, take out and maintain all necessary or prudent insurances in relation to this Agreement.
9 TERMINATION
(a) Either party may terminate this Agreement immediately by giving written notice to the other party if at any time:
(i) the other party commits a material breach of any provision of this Agreement and, where the breach is capable of remedy, fails to remedy the breach within 10 Business Days of receiving written notice to do so; or
(ii) the other party becomes subject to liquidation or insolvency.
(b) Upon termination of this Agreement for any reason:
(i) the Client must pay Motor Brand Design all amounts due for any part of the Services performed by Motor Brand Design up to the date on which the termination takes effect; and
(ii) Motor Brand Design must immediately deliver to the Client any Deliverables created or in progress as at the date of termination.
(c) Clauses 5, 6, 7, 8, 9(b) and 11 survive the expiry or termination of this Agreement for any reason.
10 NOTICES
(a) Any notice or other communication including any request, demand, consent or approval to or by a party to this Agreement must be:
(i) in legible writing and in English;
(ii) addressed to the recipient at the address or email address set out in the Project Quote or Authorisation or such other agreed document or to any other address or email address as that party may notify to the other party;
(iii) sent to the recipient by hand, prepaid post (airmail if to or from a place outside Australia) or email; and
(iv) if sent by email, in a form which:
(A) identifies the sender;
(B) is electronically signed by the sender or an authorised officer of the sender; and
(C) clearly indicates the subject matter of the notice in the subject matter of the heading of the email,
provided that the recipient has not provided written notice to the other parties confirming that it does not wish to receive notices by email. The parties consent to the method of signature contained in clause 11(j).
(b) Without limiting any other means by which a party may be able to prove that a notice has been received by another party, a notice will be deemed as being given by the sender and duly received by the addressee:
(i) if sent by hand, when left at the address of the recipient;
(ii) if sent by prepaid express post, two Business Days (if posted within Australia to an address in Australia) or five Business Days (if posted from one country to another) after the date of posting; or
(iii) if sent by email, the earlier of:
(A) the time sent (as recorded on the device from which the sender sent the email) unless, within four hours of sending the email, the sender receives an automated message that the email has not been delivered;
(B) receipt by the sender of an automated message confirming delivery; and
(C) the time of receipt as acknowledged by the recipient (either orally or in writing).
(c) If a notice is served by hand, or received by email, on a day which is not a Business Day, or after 5:00 pm on a Business Day, the notice is deemed to be duly received by the recipient at 9.00 am on the first Business Day after that day.
11 GENERAL
Entire agreement
(a) This Agreement together with any agreements or documents referred to in this Agreement or executed in connection with this Agreement constitute the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes all previous agreements, representations, negotiations, arrangements or understandings and all other communications.
Amendment
(b) This Agreement and any other agreement or document referred to in this Agreement or executed in connection with this Agreement may only be amended by a document signed by each party.
Assignment
(c) A party must not transfer, assign, create an interest in or deal in any other way with any of its rights under this Agreement without the prior written consent of the other party.
Waiver and exercise of rights
(d) Without limiting any other provision of this Agreement, the parties agree that:
(i) failure by a party to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under this Agreement does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this Agreement;
(ii) a waiver given by a party under this Agreement is only effective and binding on that party if it is given or confirmed in writing by that party; and
(iii) no waiver of a breach of a term of this Agreement operates as a waiver of another breach of that term or a breach of any other term of this Agreement.
Relationship of parties
(e) Nothing in this Agreement is to be treated as creating a partnership between the parties under the laws of any applicable jurisdiction.
(f) Except as specifically provided in this Agreement, no party may act, or has any authority to act:
(i) as agent of, or trustee for, the other party; or
(ii) in any way to bind or commit the other party to any obligation.
Further assurances
(g) Each party must promptly do, and procure that its employees and agents promptly do, all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to this Agreement.
Severance
(h) If a provision of this Agreement is held or found to be void, invalid or otherwise unenforceable in any jurisdiction:
(i) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
(ii) it does not affect the validity or enforceability of:
(A) that provision in another jurisdiction; or
(B) the remaining provisions.
Counterparts
(i) This Agreement may be signed in counterparts and all counterparts taken together constitute one document.
Electronic signature
(j) Each party warrants that it has consented to:
(i) the requirement for a signature under any law being met; and
(ii) the other party to this Agreement executing it,
by any method of electronic signature that other party uses (at that other party’s discretion), including signing on an electronic device or by digital signature.
Dispute resolution
(k) If any dispute arises between the parties relating to any matter under or in connection with this Agreement then, prior to either party instituting court proceedings to resolve the dispute:
(i) the parties must use reasonable endeavours to resolve such dispute within 20 Business Days after notice of the dispute is given by a party; and
(ii) in the event that the dispute is not resolved in accordance with clause 11(k)(i), the parties must refer the dispute to mediation in accordance with, and subject to, the Mediation Rules of the Resolution Institute.
(l) If the dispute is not resolved within 40 Business Days after the commencement of mediation (or such other period as agreed in writing by the parties), either party may commence legal proceedings in any court or tribunal in relation to a matter that is the subject of the dispute.
(m) The costs and disbursements of the mediator will be shared equally by the parties.
Governing law and jurisdiction
(n) This Agreement is governed by the laws of Victoria. Each party irrevocably and unconditionally:
(i) submits to the non-exclusive jurisdiction of the courts of Victoria; and
(ii) waives any claim or objection based on absence of jurisdiction or inconvenient forum.
12 DEFINITIONS AND INTERPRETATION
Definitions
(a) In these terms and conditions:
Agreement means these terms and conditions (as updated from time to time) and the Project Quote and Authorisation or such other agreed document.
Background IP means Intellectual Property Rights owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the term of this Agreement independently of the activities carried out under this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.
Business Day means a day that is not a Saturday, Sunday or public holiday or bank holiday in Melbourne, Australia.
Client means the client whose details are set out in a Project Quote and Authorisation or such other agreed document.
Client Resources means all materials, data and information (including any Background IP) to be supplied by the Client to Motor Brand Design as part of the Services.
Commencement Date means the date set out in the Project Quote and Authorisation or such other agreed document for the commencement of the Services.
Completion Date means the date on which Motor Brand Design supplies the Deliverables to the Client.
Confidential Information has the meaning given in clause 6(a).
Deliverables means the artwork files or any other deliverable set out in the Project Quote and Authorisation or as agreed between the parties in writing from time to time to be supplied to the Client by Motor Brand Design as part of the Services.
Fees means the fees to be paid to Motor Brand Design by the Client as set out in a Project Quote and Authorisation.
GST means GST as defined in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all copyrights, trade marks, patents, designs, knowhow, trade secrets and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not).
Intellectual Property Rights means all existing and future rights conferred by statute, common law or equity in or in relation to any Intellectual Property whether existing now or at any time in the future, and any applications for registration or rights to make such an application in respect of such rights whether created before or after the Commencement Date.
Motor Brand Design means Motor Group Pty Ltd (ABN 13 087 985 313) and its Related Bodies Corporate.
Project IP means all Intellectual Property created, conceived, developed or reduced to practice in the course of the performance of the Services including all Intellectual Property in the Deliverables.
Project Quote and Authorisation means the project quote and authorisation for the provision of the Services by Motor Brand Design to the Client issued by Motor Brand Design and accepted by the Client in a form determined by Motor Brand Design from time to time.
Related Body Corporate has the meaning give to that term in the Corporations Act 2001 (Cth).
Services means the services to be provided by Motor Brand Design under this Agreement as set out in the Project Quote and Authorisation or such other agreed document.
Interpretation
(b) In this Agreement:
(i) unless the context otherwise requires, a reference to:
(A) parties means the parties to this Agreement;
(B) a word importing the singular includes the plural and vice versa, and a word of any gender includes the corresponding words of any other gender;
(C) a document (including these terms and conditions and any Project Quote and Authorisation) or provision of a document is a reference to that document or provision as amended, consolidated, supplemented, novated or replaced from time to time;
(D) a clause, schedule, exhibit, attachment or annexure is a reference to a clause, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(E) an agreement other than this Agreement includes any undertaking, representation, deed, agreement or legally enforceable arrangement or understanding whether or not writing;
(F) a person (including any party) includes:
(I) a reference to an individual, body corporate, association, partnership, firm, joint venture, trust or regulatory authority as the case requires;
(II) the person’s successors, permitted assigns, executors and administrators; and
(III) a law:
1. includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by-law, judgment, rule of common law or equity or rule of any applicable stock exchange;
2. is a reference to that law as amended, consolidated, supplemented or replaced; and
3. is a reference to any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;
(G) liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death;
(H) time is to Melbourne time and day is to a day in Melbourne and is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(I) the word including or any other form of that word is not a word of limitation;
(ii) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(iii) headings are for convenience only and do not affect interpretation;
(iv) if a payment or other act must be made or done on a day which is not a Business Day, then it must be made or done on the next Business Day; and
(v) if a period of time is specified to occur from, after, until or before a day or the day of an act or event, it excludes that day.