We, Us or Our means Katrina Potter trading as Little Black Kat Creative ABN 36 703 124 963 of 7 Montcliff Ct, Springfield QLD 4300.

Phone: 0404 095 732 Email: katrina@littleblackkat.com

You or Your, means a means a person/s or company who engages Little Black Kat Creative for design and related services. It includes all principals, employees, affiliates and representatives of you or your business.

1. Introduction

We always do our best to make your experience with us the best we can. But before we get started, lets make sure everyone is on the same page and what each of us expects of the other. If something goes wrong we can refer to these terms and conditions (Terms).

2. Definitions 

In these Terms, unless the context otherwise requires, capitalised terms have the meaning given to them in these Terms, and:

Artwork means all visual illustrations, logos, brand designs and other creations by us delivered to you whether captured, delivered or stored in photographic, magnetic, electronic, digital, analogue or other media.

Confidential Information includes information which:

(a)    is disclosed to you in connection with these Terms at any time;

(b)    is prepared or produced under or in connection with these Terms at any time; 

(c)     relates to our business, assets or affairs; or 

(d)    relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

GST means:

(a)    the same as in the GST Law;

(b)    any other goods and services tax, or any tax applying to this agreement in a similar way; and

(c)    any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hourly Rate Charge means the hourly rate set out at the Price.

Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.

Party means Us or You.

Personnel means the employees, consultants, suppliers, subcontractors or agents of a Party.

 
3. Commencement

(a)    These Terms takes effect on and from the date on which these Terms are accepted in accordance with its terms (Start Date). You may not make any cancellations after the Start Date (other than in accordance with clause 8).

(b)    Subject to these Terms, we will proceed with the provision of the Services within a reasonable time after the Start Date or on a date as agreed between the Parties.

4. Our obligations

(a)    In consideration of you paying us the Price, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.  

(b)    If these Terms express a time within which the Services are to be provided, you acknowledge and agree that any such time is an estimate only and creates no obligation on us to provide the Services by that time. 

(c)     You acknowledge and agree that any such time estimate is subject to your fulfilment of your obligations in accordance with Clause 5 of this Contract. If you do not fulfil your obligations to provide us with all materials and instructions to complete the Services then we reserve the right to charge a re-scheduling fee, postpone or terminate this Contract at our discretion.

(d)    We will communicate with you primarily via email and other electronic methods and will not be liable if an email or other electronic message is intercepted and your personal or sensitive information is stolen by a third party.

(e)    If you require an on-site consultation, you agree that this may incur additional charges at the Hourly Rate Charge in addition to disbursement costs.

(f)     You may request a change to the Services by providing written notice to us (Variation Request). We will not be obliged to comply with the Variation Request until:

(i)       we have confirmed our acceptance of the Variation Request in writing, including any required variation to the Price to perform the Variation Request (Price Variation); 

(ii)      the Price has been adjusted to reflect the Price Variation; and

(iii)     you have paid us the Price (as adjusted by the Price Variation) in accordance with the Payment Terms. 

(g)    If there is a problem with the Services which is caused by a breach of these Terms by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our absolute discretion, refunding you that portion of the Price paid by you with respect to the Omission.

(h)    Where possible, we will provide you with an estimated turnaround time for your Artwork.  If the Artwork will end up taking longer than the estimate we have provided you, we will notify you in writing. 

(i)    Subject to Clause 5(e), we will provide 2 x rounds of minor revisions to your Artwork at our discretion. You agree that additional variations may incur a further cost at our discretion, including that it may be charged at our Hourly Rate Charge.  If the revisions requested are outside our Scope of Work (which will be determined by us at our reasonable discretion), then this may be deemed a Variation Request and Clause 4(f) will apply, including any Price Variation required.

(j)     Where a logo is to be provided as part of our Services, we will provide this in EPS, PDF, JPG and PNG file formats.

(k)    We will respond to emails within 24 hours on a business day or, if not received on a business day, then within 24 hours on the next business day.

5. Your obligations

(a)    You must comply with these Terms and all of our reasonable requests or requirements in order for us to carry out our Services and provide you with the Artwork.

(b)    Subject to Clause 5(c) and 5(d), you must obtain, and provide to us, all things reasonably necessary to enable us to provide the Services before the start date.

(c)     If you are providing images for us to be used in print material, any images should ideally be supplied in CMYK with a high resolution (a minimum of 300 DPI at actual size).  We are not responsible for the reproduction quality of supplied images or for colour variations as a result of converting from RGB to process CMYK or for any images you have supplied which prints incorrectly in any way.

(d)    If you are providing final copy or text for us to design, you must ensure this has been proof read and approved prior to providing this to us. Any changes to text once the final copy has been provided may result in additional costs to you.

(e)    You are responsible for checking for errors and mistakes prior to approving the final Artwork.  No refund will be issued if mistakes are picked up after your approval has been provided.

(f)     You must provide final approval in written form prior to any Artwork being released or sent to print.  If you do not provide this approval within 10 business days, we will assume that it is approved and proceed on this basis.

(g)    If provided for as part of the Services, you may have an opportunity to review the Artwork and provide feedback within 10 business days (Feedback). If no such Feedback is received, we will assume that you have accepted the Artwork and proceed to the next stage on this basis.

(h)    If you do not notify us of any changes or corrections required to the Artwork supplied to you within 10 business days, we will consider the Artwork and Services provided to you to be complete (Completion Date).

(i)     You acknowledge that the digital proofs sent to you will be in RGB colour format whereas printed copies will be in CMYK colour format, which may result in some colour variation.  If you are concerned about colour variation, a printed proof can be supplied at an additional cost.

(j)     If you use the image in the public domain, you must credit Little Black Kat Creative as the author.

(k)    If any of the Artwork requires trademark or other releases, you will be responsible for obtaining those permissions or consents to the exclusion of us.

(l)     If you cancel the Services or do not pay the Price of the Services, all files will remain our property until payment is made in full.

(m)   You agree and acknowledge that you are not permitted to alter the Artwork in any way once it is finalised and provided to you.

(n)    If you have accidentally deleted or lost any digital files supplied by us to you as part of the Artwork, we can re-upload the Artwork for an additional fee of $30 (ex GST) on request, provided this request is made within 2 years of the Completion Date.

(o)    You agree and acknowledge that if any Artwork are required on CD, DVD or USB, an additional administration fee may be charged.

6. Payment

(a)    You must pay us the Price, all disbursements (including travel and accommodation costs and third party costs incurred by us in the provision of the Services), and any other amounts payable to us under these Terms in accordance with the Payment Terms.

(b)    If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion) delay the services, immediately cease providing the Services and/or charge you: 

(i)       interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly; and

(ii)      a late administration fee of $30 (ex GST).

(c)     Any payments which are not made within 14 days of the due date will also incur the following charges: 

(i)       additional payment fees equivalent to 5% of the Services provided for each week that payment is outstanding; and

(ii)      the additional charges set out at Clause 6(b).

(d)    No rights will be granted in the Artwork until payment is made in full.

7. GST

(a)    Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

(b)    In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:

(i)       pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Charges or any other amount is payable under this agreement; and

(ii)      make such payment either on the date when the Charges are due or within three (3) days after the Customer is issued with a tax invoice, whichever is the later.

8. Intellectual property

(a)    You are provided with a non-exclusive worldwide licence to use the Artwork for promotional purposes for your business, provided you acknowledge Little Black Kat Creative as the illustrator.

(b)    Where agreed and set out in the Proposal, you are also provided with a non-exclusive worldwide licence to use the Artwork for commercial purposes for your business, including labelling products for resale.

(c)    Where you have purchased any premade illustrations from us (Premade Artwork), you are provided with a non-exclusive worldwide licence to use the Premade Artwork for personal and/or promotional purposes for your business.  We may also agree to provide you with a non-exclusive worldwide licence to use Premade Artwork for commercial purposes for your business at our sole discretion.  

(d)    With the exception of the licensing rights referred to in clause 8(a) and 8(b), which will vest in you, as and between the parties, all intellectual property rights (including copyright) developed, adapted, modified or created by us or our Personnel (including in connection with these Terms or the provision of the Services) will at all times vest, or remain vested, in us. 

(e)    For the avoidance of doubt, any mock or draft artwork, illustrations or designs supplied to you, including any artwork provided that you choose not to use (Draft Artwork), remain our property and we reserve the right to use the Draft Artwork at our discretion. You agree that there is no assignment of Intellectual Property Rights in:

(i)       any draft concepts, sketches or ideas discussed between us;

(ii)      preliminary Draft Artwork; and

(iii)     any Draft Artwork which is rejected by you.

(f)     On the Start Date, you grant us a perpetual, royalty-free, world-wide, unconditional, transferable and irrevocable licence to use, develop, adapt and modify (Use) all intellectual property rights (including copyright) in any materials that you provide to us in connection with these Terms, and you will ensure that any such Use does not infringe any intellectual property rights of any person.  This includes the use of any Artwork for our own marketing purposes free of charge.

(g)    If you or any of your Personnel has any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any materials provided, used or prepared in connection with these Terms, you (and you will ensure that your Personnel) consent to the infringement of those Moral Rights by our Personnel or us. 

9. Limitations

Despite anything to the contrary, to the maximum extent permitted by law:

(a)    you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Start Date; 

(b)    you agree that these Terms excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms;

(c)     our maximum aggregate Liability arising from or in connection with these Terms will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim; 

(d)    we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any: 

(i)       event or circumstance beyond our reasonable control; 

(ii)      acts or omissions of you or your Personnel; 

(iii)     defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or

(iv)     loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and 

(e)    you will indemnify us for and against all Liability arising from or in connection with any wrongful act or omission by you or your Personnel. 

10. Termination

(a)    These Terms will terminate upon written notice by:

(i)       us, at any time due to unforeseeable circumstances, in which case if no work has begun we will refund any payment made in full;

(ii)      you, at any time, with at least ten (10) business days’ notice;

(iii)     us, if you breach these Terms and that breach has not been remedied within five (5) working days of being notified by us; or

(iv)     you, if we breach a material term of these Terms and that breach has not been remedied or overcome within fifteen (15) working days of being notified by you.

(b)    On termination of these Terms, you will:

(i)       where these Terms is terminated under clause 10(a)(ii) and 10(a)(iii), immediately pay to us the Price and all of our additional costs resulting from the termination; 

(ii)      where these Terms is terminated under clause 10(a)(iv), immediately pay to us the Price for the Services performed up to the date of termination (and all other amounts due and payable to us under these Terms); 

(iii)     immediately return to us all property, including Confidential Information, belonging to us or our Personnel; and 

(iv)     not use any intellectual property rights (including copyright) belonging to us or our Personnel.

(c)     Termination of these Terms will not affect any rights or liabilities which a party has accrued under it. 

 

11. General

(a)    Disputes: A party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute (unless that party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).

(b)    Confidentiality: You will (and will ensure your Personnel) keep confidential, and not use or permit any unauthorised use of, any Confidential Information without our prior written consent, except where the disclosure is required by law.

(c)     Notices: Any notice given under these Terms must be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email. 

(d)    Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.

(e)    Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms. 

(f)     Entire agreement: These Terms contains the entire understanding and agreement between the parties in respect of its subject matter. 

(g)    Amendment: These Terms may only be amended by written instrument executed by all parties. 

(h)    Survival: Clauses 4(d), 6, 7, 8(b), 9(a) and 9(b) survive termination of these Terms. 

(i)     Governing law: These Terms are governed by the laws of Queensland.

 

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© 2020 Little Black Kat Creative 

Little Black Kat Creative
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