A. Source For Me has been engaged by the Client to provide the Goods and/or the Services to the Client.
B. Source For Me has agreed to provide the Goods and/or the Services to the Client on the terms set out in the Quote and this Agreement.
(a) On and from the Commencement Date, the Client appoints Source For Me to provide the Goods and/or the Services during the Term in accordance with this Agreement.
(b) The Client will be deemed to have accepted the Quote if the Client:
(i) signs and returns the Quote;
(ii) confirm to Source For Me of the Client’s acceptance of the Quote (either in writing or otherwise); or
(iii) the Client continues to instruct and engage Source For Me following the provision of the Quote.
(c) This Agreement commences on the Commencement Date and continues until the earlier of either:
(i) the Goods and/or the Services having been provided to the Client and the Client has paid Source For me for all amounts due and payable to Source For Me; or
(ii) the termination of this Agreement in accordance with clause 7.
(a) Source For Me will use reasonable endeavours to provide the Goods and/or the Services with reasonable care and skill in accordance with this Agreement.
(b) Any times or amounts quoted for commencement, delivery or completion of any part or all of the Goods and/or the Services are estimates only and time will not be of the essence.
(c) The Client acknowledges and agrees that the Client will:
(i) provide Source For Me with all instructions, documentation and technical information necessary for Source For Me to provide the Goods and/or the Services;
(ii) co-operate with and assist Source For Me (in a timely manner) in the performance of the Services and/or the delivery of the Goods; and
(iii) promptly provide Source For Me with full and accurate information, data and explanations promptly as and when required.
(a) In consideration for providing the Goods and/or the Services, unless otherwise agreed by the Parties in writing, the Client agrees to pay the Fees to Source For Me in full before the commencement of any Services or the delivery of any of the Goods.
(b) Any additional fees and charges in respect of any Additional Services (as defined below) must be paid by the Client to Source For Me either on demand or otherwise within seven (7) days of any request for payment of such items by Source For Me (in Source For Me’s sole and absolute discretion).
(c) Where payments are to be made by invoice:
(i) Source For Me will render a valid tax invoice for the Services (which will be issued in compliance with the GST Act); and
(ii) the Client must pay each tax invoice on the date for payment as specified on Source For Me’s tax invoice (without set-off or deduction).
(a) If, after the Commencement Date:
(i) the Client provides information that has the effect of increasing the scope of the Services or the provision of the Goods;
(ii) the Client asks for additional works to be performed which are not expressly part of the Services or the Goods; or
(iii) Source For Me becomes aware additional services are required, (together, the “Additional Services”), then the Client agrees to pay any and all additional fees and charges (in full without set-off or deduction) for the Additional Services which are to be charged by Source For Me based on either:
(iv) the Hourly Rate for the additional time spent on the Additional Services; or
(v) such fixed fee amount (exclusive of GST) quoted by Source For Me to the Client.
(b) Source For Me may provide an invoice for the Additional Services either prior to or on the completion of the Additional Services which must be paid by the Client to Source For Me on demand without set-off or deduction.
(a) If payment of the Fees are not paid by the Client in accordance with this Agreement, Source For Me will be entitled (without prejudice to any other right or remedy) to:
(i) withhold provision of the Services until payment is received in full and in cleared funds;
(ii) charge interest on any amounts according to the rate applicable under section 2 of the Penalty interest Rates Act 1983 (Vic);
(iii) provide notice to the Client of the assignment of the debt to a debt collector or a third party (in accordance with the Property Law Act 1958 (Vic) or any other similar legislation); and/or
(iv) terminate this Agreement pursuant to clause 7 if such amount remains unpaid for a period of seven (7) days from notice from Source For Me about the non-payment of the Fees.
(b) If the Client fails to pay the Fees in accordance with this Agreement, in addition to any other rights of Source For Me, the Client must pay to Source For Me on demand all costs, charges and or expenses incurred by Source For Me in consequence of any default on the part of the Client in performing or observing any term of this Agreement, or in exercising or enforcing (or attempting to do so) any rights or remedies of Source For Me.
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
On acceptance of the Quote, Source For Me will commence the design of the Artwork.
Once the Artwork is completed in accordance with the Quote (“First Artwork”), Source For Me will provide the First Artwork to the Client for the Client’s review and approval.
(a) If the Client has any requests for amendments or updates to the First Artwork, the Client must provide all such requests in writing to Source For Me in one email or document.
(b) Source For Me will attend to such requested amendments or updates and provide the amended Artwork to the Client for the Client’s review and approval (“Second Artwork”).
(c) If on receipt of the Second Artwork, further amendments or updates are requested by the Client, the Client must provide such requests in writing to Source For Me in one email or document.
(d) Source For me will attend to such further requested amendments or updates and provide the further amended Artwork to the client for the Client’s review and approval (“Third Artwork”).
(e) If the Client has any further requests for updates or amendments following the receipt of the Third Artwork or if any of the requests for updates or amendments to any versions of the Artwork are for items which are materially different to the Quote, such items would be Additional Services for the purposes of clause 3.2.
(a) Once a version of the Artwork is acceptable to the Client, the Client must confirm their acceptance to such version of the Artwork in writing, which will be final (“Final Artwork”).
(b) If any changes are requested after the Final Artwork, such changes will be Additional Services for the purposes of clause 3.2.
The Client acknowledges and agrees to the greatest extent permitted by law:
(a) Source For Me does not make any representations or warranties whatsoever as to the Third Party Services including (without limitation) the adequacy, accuracy, completeness, reliability, timeliness, suitability or quality of all or any part of the Third Party Services;
(b) under no circumstances will Source For Me be liable to the Client for any loss or damage suffered or incurred by the Client or any other party as a result of or in connection to the Third Party Services including in circumstances where the Third Party Services were incorrect, inaccurate, defective, unsuitable or unreliable;
(c) the Client’s sole and exclusive remedy for our breach of any statutorily implied warranties, conditions or guarantees which cannot lawfully be excluded in respect of the Third Party Services is limited to, at Source For Me’s option, either resupplying the Third Party Services or paying the cost of providing the Third Party Services again in respect of which the breach occurred; and
(d) the Client is responsible for ensuring the accuracy and completeness of any information submitted to Source For Me for the purposes of the provision of the Third Party Services and under no circumstances will Source For Me be liable to the Client or any other party for any loss or damage incurred, suffered or sustained by the Client or any other party should any of this information be inaccurate, defective, unsuitable, unreliable or superseded.
(a) If within seven (7) days from the delivery of the Goods, the Client notices any material defects with the Goods, the Client must immediately notify Source For Me about the defects.
(b) Source For Me will provide reasonable assistance to rectify and replace any defective Goods, however, the Client acknowledges and agrees that the Client’s sole and exclusive remedy for any breach of any statutorily implied warranties, conditions or guarantees which cannot lawfully be excluded in respect of the Third Party Services is limited to, at Source For Me’s option, either resupplying the Third Party Services or paying the cost of providing the Third Party Services again in respect of which the breach occurred.
(c) If the Client does not provide any notice of any Defects of any of the Goods within seven (7) days from the delivery of the Goods, to the greatest extent permitted by law, the Client is deemed to have accepted the condition and state of the Goods.
The Client represent and warrant that, as at the Commencement Date and on each day during the Term:
(a) the Client have full legal capacity and power to enter into this Agreement and to carry out the transactions that this Agreement contemplates; and
(b) this Agreement constitutes legal, valid and binding obligations, enforceable against it in accordance with its terms.
(a) The Client acknowledges and agrees that (to the maximum extent permitted by law and unless otherwise set out in this Agreement):
(i) all warranties, representation, guarantees and conditions that are capable of exclusion and would, apart from this provision, form part of these terms and conditions, are expressly excluded;
(ii) the Client has relied on its own investigations and enquiries in relation to the Services and have not relied on any representation or warranty from Source For Me; and
(iii) Source For Me makes no representations and/or warranties in respect of the Services;
(b) Nothing in this document operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, where to do so would:
(i) contravene the Australian Consumer Law; or
(ii) cause any terms of this document to be void, (“Non-excludable Obligation”).
(c) To the extent the Non-excludable Obligations apply to the provisions of services to the Client, Source For Me’s liability to the Client for a failure to comply with any Non-excludable Obligation is limited to:
(i) the Client’s choice of Source For Me reperforming the defective component of the Services or obtaining a refund for the defective component of the Services; or
(ii) Source For Me’s choice of re-providing the Services or refunding the defective Services if the failure does not amount to a major failure.
Source For Me will not be liable for any indirect, consequential, special or incidental loss or damages of any kind including loss of revenue, loss of profits, failure to realise expected profits or savings, overhead costs or other economic losses, in contract, tort (including negligence) under any statute otherwise arising out of or in any way connected to this Agreement.
(a) All ownership and proprietary rights in the Developed Services IP vest in and will be owned by Source For Me.
(b) Source For Me grants the Client a revocable, non-exclusive, non-transferable and non-sub-licensable licence to use the Developed Services IP to the extent required for the Client to acquire the Services.
Each Party (“First Party”) agrees to immediately deliver to the other Party (“Second Party”) upon request all documents and other materials relating to the Intellectual Property owned or licensed by the First Party, which are in its possession, power or control, or in the possession, power or control of persons who have received such documents or materials from the Client under this clause 6.
The Client provides Source For Me with absolute, unconditional and irrevocable permission to reproduce and display the any of the works created for the Client for the purposes of Source For Me to use, promote, publicise and market in any way whatsoever its sole and absolute discretion.
Source For Me may immediately terminate this Agreement by providing the Client written notice if the Client fails to pay an Invoice and the Invoice remains unpaid for seven (7) days following written notice being given to the Client.
(a) If an Event of Default, other than an Insolvency Event, occurs in relation to a Party (“Defaulting Party”), the other Party may give a notice (“Default Notice”) to the Defaulting Party specifying the Event of Default and requiring the Defaulting Party to remedy the default within fourteen (14) days after the Default Notice is given to the Defaulting Party.
(b) If a Defaulting Party:
(i) receives a Default Notice and does not comply with the notice within 14 Business Days; or
(ii) is the subject of an Insolvency Event,
then the other Party, without limiting its other rights and remedies, may terminate this Agreement by giving to the Defaulting Party notice with immediate effect.
If this Agreement is terminated:
(a) the Client must pay all Fees due and payable to Source For Me at the time of termination and Source For Me will be entitled to payment for any other fees or payments properly incurred up to the date of termination and during any notice period; and
(b) the Client must immediately deliver to Source For Me all documents, plans, lists, inventions, Intellectual Property owned or licensed by Source For Me, Confidential Information together with any hardware, software and other property belonging to the Client.
Despite any other provision of this Agreement, clauses 3 (Fees and Payments), 5 (Warranties, Liability and Indemnity), 6 (Intellectual Property), 7.3 (Consequences of Termination), 7.4 (Clauses surviving termination), 8 (Notices), 9 (Dispute Resolution) and 10 (Miscellaneous) will survive the expiry or termination of this Agreement.
A communication required to be given under this Agreement must be in writing and sent by email to a Party’s nominated email address provided in the quote or otherwise provided to the other Party and will be treated as having been duly given upon the email entering the recipient’s information system.
(a) Subject to Clause 9(c), neither Party may commence nor initiate any court proceedings arising out of this Agreement until that Party first sends a notice to the other Party (“Notice”) setting out a full description of the Dispute (including a chronology of events). Once a Notice has been served under this clause 9(a), a key person of the Client and a General Manager or Managing Director of Source For Me (or their nominee or delegate) must attempt to resolve the Dispute in good faith.
(b) If the Dispute is not resolved within fourteen (14) days of the Notice, or any longer time the Parties may agree in writing, either Party may commence or initiate legal proceedings. However, if legal proceedings are initiated, the Parties nevertheless agree to act in good faith to endeavour to resolve the Dispute using external informal dispute resolution techniques, such as mediation, expert evaluation or determination, but not arbitration.
(c) Notwithstanding anything to the contrary, this clause does not apply where a Party seeks urgent court intervention (injunctive relief) or terminates this Agreement lawfully in accordance with its terms.
The Parties acknowledge and agree that Source For Me will provide the Services as an independent contractor and this Agreement does not create any partnership, joint venture, agency or relationship of employment between the Parties.
Each Party to this Agreement acknowledges and agrees that if any of them breach the covenants contained in this Agreement that damages may not be an adequate remedy and the agreed terms will be enforceable by injunction, order for specific performance or such other equitable relief as a court of competent jurisdiction may see fit.
A waiver of a provision of or right under this Agreement is effective only if it is in writing signed by the Party granting the waiver.
Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction only, be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are self-sustaining and capable of separate enforcement without regard to the read down or severed provision in that jurisdiction are and will continue to be valid and enforceable in accordance with their terms.
Source For Me may assign its rights and obligations under this Agreement at any time by giving the Client written notice. The Client must not assign its rights or obligations under this Agreement to any person without the prior written consent of all the Parties.
This Agreement, together with any documents referred to in this Agreement or executed simultaneously in connection with this Agreement, comprises the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior understandings, agreements, representations and correspondence with respect to the same.
The rights and obligations of the Parties in respect of agreements, indemnities, covenants and warranties contained in this Agreement shall remain in full force and effect, be continuing agreements, indemnities, covenants and warranties and not be merged or extinguished by or upon termination of, or completion of any obligations under, this Agreement.
This Agreement is governed by the laws of Victoria and the Parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.
In this Agreement (unless the contrary intention appears):
Agreement: means the Quote and these terms of engagement as may be amended or supplemented from time to time and includes any annexure, attachment or schedule to it.
Business Day: means a day, which is not a Saturday, Sunday, or a bank or public holiday in Victoria.
Client: means the party listed in the Quote.
Client Background IP: means the Intellectual Property owned by or licensed to the Client:
(a) existing prior to the execution of this Agreement; or
(b) created at any time after the execution of this Agreement, provided the Intellectual Property is not used (in any way) in the Developed Services IP.
Commencement Date: means the date on which the Client is deemed to have accepted the Quote in accordance with clause 1(b).
Developed Services IP: means the Intellectual Property (including all alterations, modifications and enhancements to, and applications, developments and adaptions thereof) created or coming into existence as a result of, for the purposes of, or otherwise in connection with the Services but does not include Source For Me Background IP or the Client Background IP.
Event of Default: means, in relation to a Party, the occurrence of any one or more of the following circumstances:
(a) the Party materially breaches its obligations under this Agreement;
(b) an Insolvency Event occurs in relation to the Party; or
(c) the Party becomes unable to perform all of its material obligations and take all actions contemplated under this Agreement.
Fees: means the fees set out in the Quote and/or a Third Party Quote.
Goods: means the goods and products to be provided by Source For Me under this Agreement as specified in the Quote.
GST Act: means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
Hourly Rate: means the hourly rate either provided in the Quote or is otherwise provided by Source For Me to the Client from time to time.
Insolvency Event: means following events or circumstances:
(a) a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
(b) having a controller or analogous person appointed to it or any of its property;
(c) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act 2001 or any other relevant law;
(d) seeking protection from its creditors under any law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or
(e) any analogous event or circumstances to those described in paragraphs (a) to (d).
Intellectual Property: means all copyright (including moral rights), patents, inventions, registered and unregistered trademarks (including service marks), registered and unregistered designs, circuit layouts, confidential information, trade secrets and know-how and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Client of July 1967.
Party: means a party or parties to this Agreement.
Quote: means the quote provided by Source For Me to the Client.
Services: means the services to be performed by Source For Me under this Agreement as specified in the Quote.
Source For Me: means Carmen Josie Vitnell trading as Source For Me (ABN 65 736 351 585).
Source For Me Background IP: means the Intellectual Property owned by or licensed to Source For Me:
(a) existing prior to the execution of this Agreement; or
(b) created at any time after the execution of this Agreement, provided the Intellectual Property is not used (in any way) in the Client Background IP.
Third Party Services: means any goods and/or services provided by a third party that form part of the Goods and/or the Services.
In this Agreement, unless expressed to the contrary:
(a) words in the singular include the plural and vice versa;
(b) headings are for convenience and do not affect the interpretation of this Agreement;
(c) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
(e) no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(f) a reference to this or any other Agreement includes this Agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the Parties;
(g) a reference to time is to local time in Victoria; and
(h) a reference to “$” or “dollars” refers to the currency of Australia from time to time.
