Terms and Conditions of Supply of Service
This document sets out the terms and conditions pursuant to which Catherine Pahljina trading as Catherine Chelsea Creative [ABN 73246724948] (referred to in these Terms and Conditions as “Catherine Pahljina”, ”Catherine Chelsea Creative ”, “us” “we” or “our ") will provide you, the Client, with the Services. These Terms and Conditions together with the Quotation form the contract between the parties.
1. Definitions and Interpretation
1.1. “Business Day” means a day that is Monday to Friday in which we are open for business and excluding state or national public holidays.
1.2 “Client” means the person, firm or company who purchases the Services from us and as described in the Quotation.
1.3 ‘’Client Materials’’ means any software, firmware, methodology or process, photographic images, graphics, documentation or other material in whatever form provided to us by the Client pursuant to clause 2.2.
1.3 “Contract” means the agreement that we execute with the Client or enter into with the Client following acceptance by conduct of the Client for the supply of the Services as constituted by these Terms and Conditions and the Quotation;
1.4 “Contract Price” means the price stated in the Quotation and as may be varied from time to time in accordance with the Contract;
1.5 ‘’Copywriting Services’’ means the copywriting services to be provided by us to the Client as described in the Quotation ;
1.6 ‘’Copywriting Services Special Conditions’’ means the specific terms and conditions attached to the Quotation applicable to the Copywriting Services to be provided by us to you. In the event of a conflict between the Copywriting Services Special Conditions and these Terms and Conditions then the Copywriting Services Special Conditions shall apply.
1.7 “Deliverables” means any software, firmware, methodology or process, photographic images, documentation or other material in whatever form created by us for the purpose of or as a result of performing our obligations under this Contract.
1.8 “Intellectual Property” means all intellectual property rights, including but not limited to, the following rights:
(a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks) and domain names;(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere, whether or not such rights are registered or capable of being registered.
1.9 ‘’Photography Services’’ means the photography services to be provided by us to the Client as described in the Quotation;
1.10 ‘’Photography Services Special Conditions’’ means the specific terms and conditions attached to the Quotation applicable to the Photography Services to be provided by us to you. In the event of a conflict between the terms in the Photography Services Special Conditions and these Terms and Conditions then the ’Photography Services Special Conditions shall apply;
1.11 ‘’Price’’ shall mean the relevant fee for the Services as set out in the Quotation ;
1.12 “Services” means the Copywriting Services and/or the Photography Services which includes the and the Deliverables to be provided by us under the Contract together with any additional services which we provide, or agree to provide, to the Client;
1.13 “Quotation” means the Catherine Chelsea Creative document titled Quotation which sets out, amongst other things, the description of the Services, Price and Deliverables. Any Quotation is valid for a period of 14 days from its date unless otherwise agreed by us and provided that we have not previously withdrawn it.
2. The Contract
2.1 The Contract between us and the Client consists of these Terms and Conditions, the Quotation and where applicable, Copywriting Services Special Conditions and Photography Services Special Conditions.
2.2 The Contract shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a Quotation, or specification or other documents supplied by the Client, or implied by law, trade, custom, practice or course of dealing.
2.3 A valid and binding agreement is formed between the parties once the Client signs the Quotation, however, if the Client does not sign the Quotation but provides a verbal or written confirmation to us to proceed and deliver the Services, the Client shall be deemed to have read and accepted these Terms and Conditions and agrees to be bound by them.
3. Delivery of the Services and Provision of Client Material.
3.1 We agree to deliver the Services according to the terms listed in the Quotation provided.
3.2 The Client agrees to make available to us, for use by us in the performance of the Services, the Client Material. Failure to provide us with Client Material in the requested formats may result in additional delays or fees in addition to those stated in the Quotation.
3.3 The Client shall be solely responsible and liable for the storage and or archiving including back up of all Client Material. We accept no responsibility or liability whatsoever for backup of Client Material supplied by the Client to us for performance of the Services.
4. Price and Payment.
4.1 The Price shall be in Australian Dollars and shall be inclusive of GST (Goods and Services Tax).
4.2 The Client must pay 50% of the Price on signing of the Quotation or giving instructions to us to proceed with the Services.
4.3 On completion of the Services, the Client must pay the balance of the full Price as detailed in the Quotation, together with any additional revisions, on or before the required date for payment listed on the final Invoice.
5. Delivery of Services.
5.1 We will use all reasonable efforts to perform the Services and to complete and deliver to the Client all Deliverables related to the Services no later than the date indicated either in the Quotation or via email provided that pre-payment set out in clause 4.2 and all requested instructions and Client Material have been received by us from the Client.
5.2 While we endeavour to keep delivery dates, any delay or delivery for any reason whatsoever, will not constitute a breach of this Contract by us and will not entitle the Client to claim for any damages or compensation including consequential loss or damage or to cancel, rescind or terminate the Contract.
5.3 For the avoidance of doubt, if the delivery of the Services is dependent on a third party delivery of goods or services to us then the delay by the third party is an event not under our direct or indirect control notwithstanding that we ordered these goods or services from the third party.
6. Cancellation Policy
6.1 Subject to the provisions in this clause with respect to the refund of the deposit paid by the Client pursuant to clause 4.2, the Client may cancel the Services up to three clear Business Days before the Services are due to commence by notifying us in writing of the cancellation. The commencement date for the Services is set out in the Quotation.
6.2 For the avoidance of doubt;
a) three clear Business Days means that the notice must be received by us on the third Business Day before the Services are due to commence;
b) it is the Client responsibility to verify and ensure that the notice of cancellation is received by us at least three clear Business Days; and
c) in the event of doubt in relation to delivery of the notice of cancellation it is presumed that the notice was not received by us.
6.3 If the Client cancels the Services in compliance with the time frame as set out in this clause, we shall refund the Client the deposit paid pursuant to clause 4 within 28 calendar days of us receiving the cancellation notice.
6.4 In the event we have incurred costs in the preparation of the cancelled Services, other than our internal labour costs, then we shall be entitled to deduct any such incurred or committed costs from the deposit and refund the Client the remainder of the deposit.
6.5 If the Client cancels the Services in breach of the time line as set out in this Clause, the Client shall forfeit the deposit paid by the Client pursuant to clause 4.2.
6.6 The Client acknowledges and agrees that;
a) the cancellation of the Services with less than three clear Business Days will result in damage being sustained by us; and
b) the forfeiture of the deposit as set out in this clause is not a penalty but the payment by the Client of compensation to us as a reasonable and genuine pre-estimate of the damage we sustain as a consequence of the cancellation of the Services outside of the time frame allowed under this clause.
7. Ownership of Intellectual Property.
7.1 Ownership of any Intellectual Property in all the Deliverables and any component of the Services prepared by us shall remain with Catherine Pahljina, and Catherine Pahljina shall provide to the Client a personal perpetual, non-transferable royalty free ‘licence’ to use the materials and Deliverables for the Services for which they were created, on the condition that all amounts owing to us have been paid.
7.2 In the event that any amount is outstanding to us, then we reserve the right to revoke the ‘license’ to use any Intellectual Property until all amounts have been paid.
7.3 Notwithstanding the above, the Client shall retain and, we shall have no proprietary rights whatsoever in all of the Client’s Intellectual Property rights in any and all text, images or other components and/or materials owned by the Client, or which the Client has the legal right to use, that are delivered to us, including but not limited to software, related documentation, marketing material, logos, and tag lines (Client’s Proprietary Material). We agree that we shall not use the Client’s Proprietary Material for any other purpose than those expressly set forth in this Contract.
8. Indemnification
8.1 The Client warrants that the Client Materials are legally owned or licensed to the Client. The Client agrees to indemnify and hold Catherine Pahljina harmless from any and all claims brought by any third-party relating to the Client’s Material provided by the Client to us including any and all demands, liabilities, losses, reasonable associated costs and claims including attorney’s fees arising out of injury caused by the Client’s Material supplied to us including but not limited to intellectual property rights infringement or defective products sold as a result of the Client’s distribution or use of the Deliverables.
9. Consequence of a Breach.
9.1 In the event the Client fails to make any of the payments referenced in the Contract by the set terms, we have the right, but are not obligated, to pursue any or all of the following remedies:
a) terminate the Contract,
b) withhold all files, photograph images, artwork, website code, source, commitments or any other service to be performed by us for the Client,
c) bring legal action for the recovery of the amount outstanding and any enforcement expenses including legal costs; and
d) charge interest on the overdue amount at the rate allowed under the Penalty Interest Rate Act 1983 (VIC) calculated daily and accumulated until the outstanding amount is paid in full.
10. Confidentiality.
10.1 The Client and us acknowledge and agree that the specifications and all other documents and information related to the delivery of the Services, excluding however, Client’s Proprietary Material, (the Confidential Information) will constitute valuable trade secrets of Catherine Pahljina.
10.2 The Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Contract, without our prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
11. General Provisions
11.1 Entire Agreement
This Contract contains the entire agreement between parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Contract shall be valid unless made in writing and signed by all of the parties hereto.
11.2 Governing Law
The Contract is governed by the laws in force in the state of Victoria. Both parties agree to submit to the non- exclusive jurisdiction of the Courts of that state.
11.3 Binding Effect
This Contract shall be binding upon and ensure to the benefit of the Client and us and our respective successors and assigns, provided that we shall not assign any of their obligations under this Contract without the Client’s prior written consent.
11.4 Waiver
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Contract at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Contract.
11.5 No Right to Assign
The Client has no right to assign, sell, or modify or otherwise alter the Deliverables, except upon our express written advanced approval of, which consent can be withheld for any reason.
11.6 Use of the Deliverables for Promotional Purposes
The Client grants us the right to use the Deliverables for promotional purposes and/or to crosslink it with other marketing venues developed by us, but excludes the right to use confidential material as highlighted by the Client in writing.
11.7 Legal Fees
In the event that we employ a Solicitor or debt collector to enforce any of the terms of the Contract, we shall be entitled to recover its legal fees or other enforcement expenses incurred in pursuit of its rights under this Contract.
11.8 Force Majeure
We are not responsible for the failure to perform any obligation under the Contract if its performance has become impossible due to any matter beyond our reasonable control which includes (but is not limited to): fire, flood, tempest, earthquake, riot, war, civil disturbance, natural disasters, pandemic, government interference, theft, crime, strike, lockout or breakdown. In such circumstances, we will be under no obligation to refund the Deposit or any other amounts paid to us under the Contract.