- These Terms, as updated from time to time, apply to any Work we do for you.
- These Terms commence applying when you engage us to carry out Work and, subject to clause 7, expire on the later of the date set out in the Proposal or the last day for delivery of the Work.
- Unless agreed in writing by us, the Terms, as amended from time to time, apply to the exclusion of all prior discussions, representations, understandings and arrangements, and all conditions and warranties (written or oral, express or implied) and other representations (contractual otherwise).
- The Terms may be updated at any time by notice to you. An update to the Terms published on Scooter’s website is considered by the parties to be adequate notice.
2. Completion of Work
- You may engage us to carry out Work for you:
- by accepting a Proposal; or
- where we agree in writing to carry out Work.
- If you engage us to carry out Work, that engagement will constitute acceptance of these Terms.
3. Fees and Payment
- In consideration for the completion of the Work you must pay Fees. Fees will be set out in the Tax Invoice provided to you.
- The Fees are made up of Fixed Fees, Rates and Expenses and must be paid in AUD to the bank account specified on the Tax Invoice.
- Unless otherwise specified, you must pay the Fees within 30 days from the date of the Tax Invoice.
- The time for payment is of the essence.
- We may send you a Tax Invoice once the Work is complete, once a stage of the Work is complete or where the Work has stopped for more than 30 days. If we send you a Tax Invoice before the Work is complete, the Tax Invoice will contain the Fees for the Work completed up until the date of the Tax Invoice.
- In the event that you fail to pay Fees on time:
- we may, without prejudice to any other remedy we may have against you, suspend completion of the Work and any other obligations we have under these Terms;
- you must pay interest at the rate prescribed at the relevant time under the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;
- we may set off any other payments you have made against the amounts due; and
- you will be liable for and agree to indemnify us for, all costs incurred relating to or arising out of the recovery of any unpaid amounts, including without limitation legal and collection agent fees (on a full indemnity basis), court costs and interest.
4. Scope of Work
- If any Work is completed that falls outside the Scope of Work, additional Fees will apply based on the Rates. Work which may fall outside the scope of Work may include, but is not limited to:
- additional items of Work requested;
- requested alterations to the Work;
- further drafts of Work;
- altered timeframes for the delivery of the Work; and
- changes to your requirements regarding the Work.
- Our liability to you for any Loss arising as a result of the non-performance or breach of these Terms by us will be capped at the amount paid or payable by you under these Terms in the three month period prior to the date on which the liability accrued.
- Subject to any legislation (including but not limited to the Competition and Consumer Act 2010 (Cwth)) to the contrary, to the full extent permitted by law, all express and implied terms, conditions and warranties other than the ones set out in these Terms are excluded.
- We are not liable for any direct or indirect loss or any Consequential Loss or expenses suffered by you or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
6. Intellectual Property
- You agree to supply to us, and grant us a licence to use, all information and content reasonably required by us for the delivery of the Work and you warrant to us that our use of such information and content will not breach the rights of any third party, including in relation to its Intellectual Property.
- Each party retains all rights in relation to that party’s Background Materials.
- The Intellectual Property in any Work we create under these Terms vests in you on creation.
- We grant you an irrevocable, non-exclusive, royalty free licence to use and reproduce any of our Intellectual Property which is contained in the Work for the purposes for which the Work was created.
- Either party may terminate these Terms:
- for convenience, where that party has provided 30 days notice;
- immediately if the other party has breached the Terms where that breach is capable of being remedied and it has failed to remedy the breach within 14 days of receiving written notice of the breach; or
- immediately if the other party has breached the Terms where that breach is not capable of being remedied.
- Following expiry or termination of these Terms for any reason:
- you must immediately pay us for any Work completed up to the date of termination; and
- clauses 3, 5, 6 and 8 and any other clauses that make provision for the continued operation of these Terms survive and remain in force.
- Except as contemplated by these Terms and to the extend required for the delivery of the Work, each party must:
- keep confidential, the Confidential Information of the other party and must not disclose such information to any other party without the prior written consent; and
- not copy or reproduce in any way the Confidential Information.
- You are responsible for and liable to us in respect of the actions or omissions of your employees, agents, contractors and consultants in relation to the disclosure of Confidential Information.
9. Dispute Resolution
- In the event of a dispute between the parties, the parties agree in good faith to use all reasonable endeavours to settle the dispute. If the parties are unable to settle the dispute in good faith then the dispute will be referred to mediation as follows:
- the mediator will be a mediator agreed between the parties and, failing agreement within 14 days of request to do so, will be nominated by the president for the time being of the Law Society of Victoria;
- the parties will be jointly responsible for the fees of the mediation and each party must pay its own costs in respect of it;
- the parties may be legally represented; and
- the place of mediation will be in Melbourne, Australia but the parties may agree to hold the mediation virtually.
- Notwithstanding the above, a party is not prevented from making an application to a court for an interlocutory injunction.
- You warrant to us that all information and materials you provide to us complies with all relevant privacy laws, including the Privacy Act 1988 (Cth).
- If GST is imposed on any Taxable Supply under the Terms, then we have the right to increase the purchase price payable on that Taxable Supply by an amount equal to the GST imposed.
- To obtain a valid Tax Invoice you must supply us with your ABN.
- You agree that the agreement governed by these Terms constitutes a security agreement and creates a security interest in favour of us in your present and after acquired property, as security for the obligations to pay invoices under these Terms.
- You acknowledge that you have granted a security interest under the PPSA and that we may register this security interest on the Personal Property Securities Register over your General Property – All Present and After Acquired Property (as defined in the PPSA).
13. Force Majeure
Where we are unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under the Terms, the requirement to perform that obligation is suspended as long as the Force Majeure Event continues.
Nothing contained or implied in these Terms constitutes a party the partner, agent or legal representative of the other party for any purpose, or creates any partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
15. No waiver
Failure by us to enforce any of the Terms should not be construed as a waiver of any of our rights here under or a waiver of a continuing breach.
16. Entire Agreement
The Terms constitute the entire agreement between us concerning any orders placed with us for Work you purchase from us.
17. Governing Law
The Terms are governed by the laws of Victoria, Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.
In the Terms:
- ACL means Australian Consumer Law schedule 2 of the Competition and Consumer Act 2010 and the corresponding provisions of the relevant state and territory fair trading acts.
- Background Materials (of a party) means all Intellectual Property which is:
- owned by either party, or licensed to a party by third parties prior to the commencement of the Work; or
- developed or acquired by a party independently of these Terms.
- including modifications, developments and enhancements of the aforementioned Intellectual Property (including enhancements to know-how knowledge) which may be developed or created by a party in the course of performing their obligations under these Terms.
- Business Day means Monday to Friday excluding public holidays in Victoria.
- Confidential Information of a party means any information concerning the business or practice of the party including, but not limited to, information concerning its branding, marketing, financial affairs, business development plans, trademarks, policies, logos, these Terms and any document contemplated by these Terms, and any other commercially valuable information of whatever description and any information exchanged, which is not in the public domain (other than as a result of a breach of any obligation under these Terms), and which comes to the other party or the personnel of the other party’s attention in the course of performing its obligations under these Terms.
- Consumer Guarantee means a right or guarantee under the ACL that cannot lawfully be excluded.
- Consequential Loss means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue, loss of income; loss of business; loss of profit; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third-parties; loss of or damage to credit rating; loss of anticipated savings and/or loss of or denial of opportunity.
- Expenses means fees charged by third parties in relation to the Work, it is agreed that you are liable for these and where we pay them on your behalf, they will be on charged to you through a Tax Invoice.
- Fees mean the fees we charge for the Work and are made up of any Fixed fees, Rates and Expenses.
- Fixed Fee are fees as set out in a Proposal where the parties have agreed a fee for a particular scope of work.
- Force Majeure Event means an act of God, flood, earthquake, storm, cyclone, hurricane, lightning, fire, explosion, pandemic, epidemic, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court.
- GST has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
- Intellectual Property means any and all intellectual and industrial property rights anywhere in the world including but not limited to rights in respect of or in connection with trademarks, service marks, patents, designs, trade secrets, know-how, copyright and analogous rights, and any associated goodwill, now or in the future, including any modifications or derivatives, and any right to register such rights.
- Loss means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees on a full indemnity basis) whether direct, indirect, special, consequential or otherwise.
- Personal Properties and Securities Register has the meaning given to it in the PPSA.
- PPSA means the Personal Properties Securities Act 2009.
- Proposal means a document provided by us and accepted by you which describes the Work.
- Scooter Creative means Scooter Creative Pty Ltd (ABN: 51 603 156 396).
- Rates means the standard rates and fees we charge for Work on a time and materials basis, contained in the Proposal or otherwise provided to you, as updated from time to time.
- Scope of Work means the agreed work to be carried out under a Proposal or otherwise between the parties.
- Tax Invoice has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
- Taxable Supply has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
- Terms means these Terms and Conditions and includes any Proposal.
- We or Us or Our means Scooter Creative .
- Work meansany work we do for you, which may include creative, digital or branding assistance.
- You or Your means you as the buyer of the Work from Scooter Creative pursuant to these Terms.
In the Terms, the following rules apply, unless the context requires otherwise:
- headings are for convenience only and do not affect the interpretation of the Terms;
- the singular includes the plural and the plural includes the singular;
- any gender includes any other gender;
- any thing required to be done on a day that is not a Business Day, may be done on the next Business Day;
- reference to a person includes a natural person, corporation, partnership, association or other legal entity;
- reference to legislation includes that legislation as amended or modified or re-enacted;
- A term or definition with a capital letter which is defined in clause 18, has the meaning given in clause 18.
- reference to a party to the Terms includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives); and
- reference to dollars or $ is to Australian currency.