By engaging the services of Martlette, you are forming a legally binding contract with and/or it’s affiliated companies, for products and services, and you agree to be bound by the following Terms and Conditions. It is important that you please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with Martlette. Engaging the services of Martlette constitutes acceptance of the below terms and conditions.
Please also note that from time to time Martlette may need to alter these terms and conditions without notice. Please contact Martlette if you do not understand any of the terms or conditions set out below.
As a user of the Martlette website, you agree not to reproduce, retransmit, disseminate, sell, publish, broadcast, or otherwise use any material from this site without our express prior written consent.
1. Application
This Agreement is between Martlette and the Client. These Terms of Trade (‘Terms’) apply to every order for products and services (‘works’) the Client places with Martlette except where Martlette agrees in writing signed by an authorised officer of Martlette that all or part of these Terms do not apply. These terms prevail over any written terms and conditions of the Client (if any) and where there are inconsistencies between these Terms and the terms contained in any order these Terms prevail unless accepted in writing. These Terms do not create an obligation on or a promise by Martlette to supply works. On the receipt of these Terms and either the placement of any order or the payment of the deposit constitutes full acceptance of the Client to the Terms.
2. Definitions
As used herein and throughout these terms and conditions:
2.1 Agreement means the entire content of this Terms and Conditions document, Proposal document(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
2.2 Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.
2.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law.
2.4 Deliverables means the services and work product specified in the Proposal to be delivered by Martlette to Client, in the form and media specified in the Proposal.
2.5 Designer Tools means all design tools developed and/or utilised by Martlette in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
2.6 Final Deliverables means the final versions of Deliverables provided by Martlette and accepted by Client.
2.7 Final Works means all creative content developed by Martlette, or commissioned by Martlette, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Martlette’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
2.8 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Martlette and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
2.9 Working Files means all underlying work product and digital files utilised by Martlette to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables and Final Works.
2.10 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
2.11 Services means all services and the work product to be provided to Client by Martlette as described and otherwise further defined in the Proposal.
2.12 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
2.13 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2.14 Clause – each separate and distinct numbered section of the legal agreement. Divided into sub-clauses which further expand on the topic of each clause.
2.15 Grant – to give.
2.16 Indemnity – if a party loses any money because of what the other party promised in the agreement that they would or wouldn’t do, the other party will compensate them for the loss.
2.17 Licence – the owner of copyright gives permission to the other party to use the artistic works for a particular purpose e.g., to reproduce or make copies of them.
2.18 Notice – when one party formally informs another, often in writing and in the form of a letter or email.
2.19 Warrant – when one of the parties to the agreement promises something e.g., that the Works do not infringe someone else’s copyright.
3. Interpretation
3.1 Nothing in these Terms creates any relationship of employment, agency or partnership between the Client and Martlette .
3.2 In these Terms, ‘works’ means all graphics created and supplied by Martlette , including but not limited to artwork, logos, websites, brochures, branding, typography and prints by Martlette to the Client or a third party nominated by the Client.
4. Quotations
4.1 All quotes given by Martlette will be valid for 30 days from the date of the quote.
4.2 If the Client’s final specifications change from the original specifications made for the quotation, Martlette reserves the right to vary the quoted cost.
4.3 All quotes provided will change if start and finish times are amended by the Client.
5. Proposal
5.1 The terms of the Proposal shall be effective for 30 calendar days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
5.2 Martlette agrees to provide graphic design services as outlined in the Proposal (Deliverables) on the terms of this agreement.
6. Client and Martlette Obligations.
6.1 Martlette must:
a) Perform the Services and deliver the Deliverables; and
b) Ensure that the work is completed according to the timeline schedule and the budget quoted as outlined in the Proposal.
6.2 The Client must:
a) Provide materials as requested by Martlette in the required format as necessary to complete the Brief;
b) Ensure that all information and materials provided to Martlette are to the best of their knowledge accurate, correct and that they are legally allowed to provide and use them under this agreement; and
c) Communicate any changes to the Brief to Martlette as soon as practicably possible.
7. Client Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
a) coordination of any decision-making with parties other than Martlette;
b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal;
c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors ; and
d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
8. Provision of Information
8.1 Where requested by Martlette , the Client must provide to Martlette all information and materials required to complete the work in accordance with any agreed specification, including but not limited to: (i) Photographs; (ii) Written copy; (iii) Logos; (iv) Written material; (v) Graphic material; (vi) Any other relevant material; and (vii) Usernames and passwords for domain and website hosting services that are already established in order to upload or edit existing websites.
8.2 The Client warrants that all information, images and other materials for inclusion in the Client’s project, regardless of the medium, provided to Martlette is accurate and up-to-date, and Martlette may rely on this information in carrying out the services.
8.3 It is expected that all text supplied has been checked for typographical and grammatical errors, and has been approved by all parties that will have a final say in the sign-off for the work. Additional expenses may be incurred for any necessary action, including, but not limited to, photography searches, media conversion, digital image processing and editing, or data entry services. The Client agrees that changes and alterations may be made to text and images (with their approval) to improve the of any items produced (no additional charges for these improvements, this is included with normal charges).
9. Fees and Charges
9.1 Fees. In consideration of the Services to be performed by Martlette, Client shall pay to Martlette fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
9.2 Expenses. Any expenses incurred in connection with this Agreement, will be outlined in the proposal for Client approval. Client shall pay Martlette’s approved expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis and, if applicable, a mileage reimbursement at per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by Martlette with Client’s prior approval.
9.3 Additional Costs. The Project pricing includes Martlette’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
10. Payment Terms
10.1 A non-refundable deposit of 50% of the fee is required on the placement of the order. The 50% balance of the order will be paid within 7 days of the date of the Martlette invoice or upon delivery of the product or services, whichever occurs first.
10.2 Payment can be made by direct deposit or cheque to Martlette .
10.3 Original works will not be delivered to the Client until payment or evidence of payment has been received by Martlette .
10.4 Any amounts outstanding after 14 days will incur interest of 5% for each week that the payments remain outstanding.
10.5 All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full, including any outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the cost of Changes.
10.6 An account shall be considered to be in default if it remains unpaid for 30 days from the date of invoice or the Client has stated expressly that they do not intend to pay an invoice by Martlette, unless prior arrangements have been made. Martlette shall at its sole discretion suspend any and all services provided to the client by Martlette or its subsidiaries (including but not limited to hosting, websites ed files, concepts, artwork, and email) and employ debt collection measures until the total outstanding balance has been paid in full. The Client will be liable for all collection and solicitor’s fees.
10.7 Martlette reserves the right not to release the works until payment has been cleared into the nominated bank account.
11. GST
All amounts quoted by Martlette are GST exclusive unless otherwise stated. The Client will be liable to pay GST in addition to the amount quoted where a taxable supply is made by Martlette .
12. Changes
12.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Martlette’s standard hourly rate of $180 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Martlette may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
12.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of 10% of the time required to produce the Deliverables, and or the value or scope of the Services, Martlette shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Martlette.
12.3 Timing. Martlette will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either (i) approve the Deliverables in writing or (ii) provide written comments sufficient to identify Client’s concerns, objections or corrections. Martlette shall be entitled to request written clarification thereof. Client acknowledges and agrees that Martlette’s ability to meet schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of this Agreement by Martlette.
12.4 Testing and Acceptance. Martlette will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Martlette, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Martlette will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
12.5 Suspension Fee. Client acknowledges that Martlette has reserved time exclusively to perform the Services. Accordingly, in the event Client causes a delay in the Services (“Client Delay”), Client shall pay to Martlette, in addition to fees and expenses already incurred through the date of such Client Delay, a Suspension Fee equal to Martlette’s hourly fees for idle time caused by the Client Delay, unless Martlette is able to secure other work for that time for the same or greater compensation. Client acknowledges that if Martlette accepts other work because of a Client Delay, Martlette may adjust time to complete the Services as necessary to accommodate such other work.
13. Turnaround times
13.1 Martlette reserves the right to withhold starting on any project if the deposit is not paid at the time of the Client’s order, and will not be liable for missing a deadline as a result of the failure to pay the deposit.
13.2 Where quoted by Martlette, turnaround times are normal target times only and Martlette accepts no liability for failure to meet these times. Martlette will use reasonable endeavours to meet deadlines.
13.3 Martlette reserves the right to finalise any project where the client takes more than 3 months to respond to communication. Recommencement of any finalised project will require a new project proposal, project quotation and proposed timeline for client approval. A new deposit invoice will be issued and work will commence following payment of this invoice.
14. Uncollected work
If any items of work including information, graphic materials, photographs and original files belonging to a Client are not collected after six (6) months of the requested work being commenced, Martlette reserves the right to dispose of such material.
15. Revisions of the Brief
15.1 The Client may make reasonable revisions to the Brief without additional charge.
15.2 All revisions must be made in writing.
15.3 Martlette reserves the right to modify and extend any deadlines and Deliverables if such reasonable revisions are made.
15.4 The Client shall pay any additional charges for revisions outside the scope of the services outlined in the Brief. Martlette’s rate is $180 +GST per hour and will be charged in addition to the Fee already quoted.
15.5 Martlette reserves the right to refuse the change request, with reasonable excuse.
16. Approval and consultation
16.1 The Client must review the work at the completion of each stage of the Milestone Schedule to identify any errors or revisions.
16.2 At Martlette’s reasonable request, the Client must be available to Martlette for consultation at any time or stage specified in the Milestone Schedule.
17. Attribution/Promotions
Client agrees to include in all displays or publications of the Final Works attribution and/or copyright notice in Martlette’s name in the form, size and location as incorporated by Martlette in the Deliverables, or as otherwise directed by Martlette. Martlette retains the right to reproduce, publish and display the Final Works, Deliverables, and Preliminary Works, to the extent they do not contain Client’s Confidential Information, in Martlette’s portfolios and Websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project, and, if applicable, the services provided to the other party on its Website and in other professional materials, and, if not expressly objected to, include a link to the other party’s Website.
18. Intellectual Property
18.1 Intellectual Property means all copyright (including future copyright), patents, trade marks, designs, trade, business or company names, rights to confidential information, underlying rights and all other proprietary rights created by Martlette whilst providing the Services including any rights to registration.
18.2 On receipt of payment of the final invoice, Martlette assigns all Intellectual Property rights in the Deliverables to the Client throughout the world including all rights of action (past and present) and any rights to recover damages or any other relief. This excludes all moral rights, which are by law non-assignable.
19. Copyright, moral rights and consents
19.1 Copyright and ownership of all original and drafts, artwork, graphics and Intellectual Property other than the final work chosen and purchased by the Client produced by Martlette remains the property of Martlette , unless otherwise stated or agreed in writing. Full copyright of the final work passes to the client when all accounts have been settled in full.
19.2 Draft images may NOT be used for ANY other purpose than viewing. They may NOT be copied, edited or distributed to ANY other person or company, other than those directly in negotiation with Martlette WITHOUT prior permission from Martlette.
19.3 If the Client wishes to use any original or drafts or artwork then the Client may only do so if they have received permission in writing from Marlette AND they have paid to Martlette the required invoiced amount. These separate artworks will only be delivered to the Client once full payment has been received by Martlette .
19.4 Artwork supplied by Martlette MAY NOT be used for any other purpose than the original application, i.e. artwork for press adverts, packaging, brochures, etc, may not be used for any other project, in part or in full, at any other time.
19.5 Martlette claims no copyright in material submitted for the purpose of fulfilling the Client’s instruction.
19.6 The Client warrants that the Client owns or controls all rights, and has obtained all Copyright, or has permissions, consents and waivers that as are now and hereafter required for all using, editing, copying, processing, duplication and manipulation of all information and material given to Martlette for the purposes of the work for the Client.
19.7 In the event that the Client has not obtained all the required permissions, consents and/or waivers the Client agrees to indemnify, protect, defend and hold harmless Martlette from any claims, demands, legal actions, damage or penalty related to any information and material given to and used by Martlette in the creation of the Client’s work.
19.8 The Client also warrants that no copyright or moral rights will be infringed by Martlette carrying out the requested work.
20. Confidential Information
20.1 Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project, except as may be required by a court or government authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
20.2 A party must keep secure and not disclose or use for a purpose other than contemplated by this agreement, any information or documents supplied by the other party that are indicated, or would reasonably be understood, to be confidential.
20.3 All files, artwork and content shared with the Client, must not be shared with any external party, including other graphic artists, agencies without further permission from Martlette.
21. Relationship of the Parties
21.1 Independent Contractor. Martlette is an independent contractor, not an employee of Client or any company affiliated with Client. Martlette shall provide the Services under the general direction of Client, but Martlette shall determine, in Martlette sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
21.2 Design Agents. Martlette shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Martlette shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
21.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Design Agent of Martlette, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Martlette shall be entitled to an agency commission to be the greater of either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Martlette, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
21.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Martlette, and Martlette shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Martlette.
22. Warranties and Representations
22.1 By Client. Client represents, warrants and covenants to Martlette that
a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
22.2 By Martlette.
a) Martlette hereby represents, warrants and covenants to Client that Martlette will provide the Services in a professional manner and in accordance with all reasonable professional standards for such services.
b) Martlette further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Martlette and/or Martlette’s Agents, (ii) if the Final Deliverables include the work of Martlette Agents, Martlette shall have secured agreements from Martlette’s Agents granting all necessary rights, title and interest in and to the Final Deliverables sufficient for Martlette to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Martlette’s knowledge, the Final Works (excluding Client Content and Third Party Materials), and use of same in connection with the Project, will not violate the rights of any third parties. Client acknowledges that Martlette will not conduct any type of intellectual property clearance search (e.g., copyright, trademark, utility patent or design patent searches). If Client or any third party authorised by Client modifies or uses the Deliverables outside the scope of rights granted in this Agreement, or otherwise in violation of this Agreement, all representations and warranties of Martlette shall be void.
c) Except for the express representations and warranties stated in this Agreement, Martlette makes no warranties whatsoever. Martlette explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
23. Moral rights and changes made to the work after service is complete
23.1 The Client recognises and accepts that Martlette may have moral rights in the results and proceeds of the Services.
23.2 If the Client is prevented from financing, producing, distributing or in any way exploiting the design by any third party because Martlette has retained Martlette’s moral rights in the results and proceeds of the Services, the Client will invite Martlette to join the Client in consultation with the third party to resolve any moral rights dispute. If that dispute cannot be resolved, the Client’s position will prevail.
23.3 The Client may make any change to the Deliverables without Martlette’s consent.
23.4 The Client is not obliged to use the Deliverables. Martlette acknowledges that any failure to use the Deliverables will not entitle Martlette to bring any claim or proceeding against the Client for failure to enhance Martlette’s reputation or for loss of publicity concerning the Services, the work, or on any other basis.
24. Indemnification/Liability
24.1 By Client. Client agrees to indemnify, save and hold harmless Martlette from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Martlette shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Martlette provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Martlette in providing such assistance.
24.2 By Martlette. Martlette agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses (collectively “Liabilities”) arising out of any meritorious claim, demand, or action by a third party which is inconsistent with Martlette’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of Client’s gross negligence or misconduct, provided that (a) Client promptly notifies Martlette in writing of the claim; (b) Martlette shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Martlette with the assistance, information and authority necessary to perform Martlette’s obligations under this section. Notwithstanding the foregoing, Martlette shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by Client or third parties, improper or illegal use of Deliverables, use of Deliverables not authorized under this Agreement, or the failure to update or maintain Deliverables.
24.3 Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.
24.4 Limitation of Liability. The services and the work product of Martlette are provided “as is.” In all circumstances, the maximum liability of Martlette, its directors, officers, employees, design agents and affiliates, to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total Project fee of Martlette. In no event shall Martlette be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Martlette, even if Martlette has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
24.5 Nothing in these Terms limit, exclude or modify or purports to limit, exclude or modify the statutory consumer guarantees as provided under the Competition and Consumer Act 2010, as well as any other implied warranties which are precluded from exclusion or modification and this Clause is only intended to limit Martlette ’s liability where the law allows.
24.6 Where permitted by law: (i) The liability of Martlette will be limited to the cost of the work. (ii) Martlette (including its related entities, respective officers, employees and agents) excludes all liability (including negligence), for any personal injury or any loss or damage (including loss of opportunity); whether direct, indirect, special or consequential, arising in any way out of the work and without limiting the generality of the foregoing. (iii) Martlette is not subject to, and the Client releases Martlette from, any liability (including but not limited to consequential loss or damage) because of, inter alia: any delay in delivery or fault or defect in the work; negligent act or omission; improper use of work, operation, storage or handling of work by the Client other than accordance with any written instructions supplied with the work. (iv) Martlette will not be liable for any loss or damage to the Client or any other party including loss of income. (v) Martlette will not be liable for the cost of re-editing the work.
25. Both Martlette and Client respectively represent and warrant that:
25.1 they have full legal capacity and power to enter into and perform this agreement;
25.2 they have not entered into any arrangement or agreement that may conflict with the terms of this agreement;
25.3 Martlette’s Deliverables and the Client’s Brief do not infringe the rights, including but not limited to the copyright of any person or organisation;
25.4 to the best of their knowledge, Martlette’s Deliverables and the Client’s Brief are not defamatory, obscene, false, misleading or deceptive or in contravention of any other applicable law; and
25.5 the Fee is adequate to provide the Deliverables under this agreement.
25.6 Each party will unconditionally indemnify and keep indemnified the other party against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) (Loss) that the other party incurs as a result of or in relation to a breach of any of the first party’s representations or warranties under this clause.
26. Term and Termination
26.1 Term. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered, or otherwise terminated as set forth herein.
26.2 Termination. This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party:
a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
26.3 In the event of termination, Martlette shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Martlette and/or Martlette Agents as of the date of termination, whichever is greater; and Client shall pay any outstanding Additional Costs, Taxes, Expenses, Charges, and costs of Changes incurred through the date of termination. In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total Project fee, the Proposal shall not be effective, and Client shall not have rights to use the Deliverables except upon written consent from Martlette provided after such termination.
26.4 In the event of termination for convenience by Martlette or for cause by Client, and upon full payment of compensation as provided herein, Martlette grants to Client such right and title as outlined in the Proposal with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
26.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
26.6 Work Stoppage Option. If Martlette has grounds to terminate this Agreement for breach under Section 26.2, Martlette may elect to suspend work until Client cures the breach and agrees to amend the Proposal to adjust fees, including Suspension Fees, and schedules as reasonably required by Martlette.
26.7 Martlette may terminate this agreement immediately by written notice to the Client if the Client is more than 14 calendar days late in paying Martlette under this agreement.
26.8 A party may terminate this agreement immediately by written notice to the other party if the other party becomes insolvent, is declared bankrupt, has a liquidator appointed or goes into administration, voluntary or otherwise, or ceases to carry on business or threatens to do so.
26.9 If Martlette fails to deliver the Deliverables in accordance with the Milestone Schedule, the Client must notify Martlette in writing. Martlette must remedy the breach within 14 calendar days of the notice (Notice Period). After the Notice period, the Client may terminate this agreement immediately by written notice to Martlette if:
a) the breach is incapable of remedy; or
b) Martlette fails to remedy the breach within the Notice Period.
26.10 If this agreement is terminated under clause 26.2, the Client must pay Martlette for all work done under this agreement, and for Martlette’s approved expenses incurred or commitments undertaken up to the date the Client or Martlette receives the termination notice.
26.11 A party must not exercise its termination rights under this clause if the other party’s breach of this agreement is caused by an act or omission that:
a) is beyond the reasonable control of the other party;
b) could not have been reasonably foreseen; and
c) ceases within one month.
27. Dispute handling
27.1 If a dispute or disagreement (Dispute) arises between the parties in connection with this agreement:
a) the affected party must notify the other party in writing about the Dispute; and
b) each party must refrain from starting any litigation or arbitration in relationto the Dispute until the parties have complied with this clause.
27.2 The parties should meet within 14 calendar days after receipt of the notice of dispute and hold good faith discussions to attempt to resolve the Dispute.
27.3 If the Dispute is not resolved within 28 calendar days after receipt of the notice of dispute, the parties agree to submit the dispute to mediation.
27.4 If the parties are not able to agree to a mediator or mediation process within 35 calendar days after receipt of the notice of dispute, the parties must submit the Dispute to mediation according to the Arts Law Centre Mediation guidelines current at that time (Guidelines). These guidelines are part of this agreement.
27.5 If the parties are unable to resolve the Dispute within 7 calendar days of commencing mediation or such later time as may be agreed during the mediation, either party may refer the matter to arbitration or commence litigation.
27.6 The parties must continue to perform their respective obligations under this agreement despite the existence of a Dispute.
27.7 A party will be responsible for their own costs in complying with this clause.
28. General Provisions
28.1 The parties acknowledge that Martlette is an independent Designer and that nothing in this agreement creates any relationship of partnership, agency or employment between the parties.
28.2 A notice required to be given under this agreement may be delivered by hand, or sent by pre-paid post, or email to the address of either party entering into this agreement. Notices are taken to have been served when received, or within 2 business days of having been sent, whichever occurs first.
28.3 Neither party may assign, subcontract, novate or otherwise divest this agreement or any of the rights or obligations under this agreement without the other party’s prior written consent. This consent must not be unreasonably withheld.
28.4 This agreement contains the entire agreement of the parties regarding its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this agreement and has no further effect.
28.5 Nothing in this agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law.
28.6 This agreement may only be modified by a written amendment signed by the parties.
28.7 Invalidity of any clause of this agreement will not affect the validity on any other clause except to the extent made necessary by the invalidity.
28.8 If the Client breaches any of its obligations under this agreement and that breach is not remedied in accordance with this agreement, Martlette’s rights will be limited to recovery of damages and in no event will Martlette be entitled to injunct the use, distribution and exploitation of the Deliverables.
28.9 This agreement is governed by the law in force in Victoria, Australia. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts.
29. General
29.1 Modification/Waiver. This Agreement may be modified by the parties only in writing signed by both parties, except that Martlette’s invoices may include, and Client shall pay, Additional Costs, Expenses, Charges, and costs of Changes that Client authorizes by email or a project management platform utilized for the Project. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
29.2 Notices. All notices to be given hereunder shall be transmitted in writing via a project management platform utilised for the Project, e-mail, or certified or registered mail, return receipt requested, to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt (by automated confirmation or reply by the recipient).
29.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
29.4 Force Majeure. Martlette shall not be deemed in breach of this Agreement if Martlette is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of Martlette or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Martlette’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Martlette shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
29.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
29.6 Interpretation. Section headings are solely for convenience and reference only and shall not effect the scope, meaning, intent or interpretation of the provisions of this Agreement nor otherwise be given any legal effect. Any design terminology shall be defined according to standard design industry usage, and any dispute as to the meaning or scope of design terminology shall be determined by Martlette in good faith. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions.
29.7 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, as indicated by the parties’ initials or via written agreement (eg. Letter or email).
29.8 By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of the agreement in writing, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
30. Breach or Default Event
a) If the Client is in breach of any of these Terms, the Client agrees that it will be responsible for all of the expenses incurred by Martlette in enforcing its rights including recovering monies owed.
b) If a default event occurs Martlette may withhold further provision of products and/or services, and all amounts outstanding to Martlette by the Client, even if not otherwise due for payment, will become immediately payable.
c) A default event will occur if: (i) If in the sole opinion of Martlette , there is a material risk that the Client is, or will be, unable to pay amounts owing to Martlette or perform any other obligation under these Terms and Martlette gives notice in writing to the Client of its opinion (ii) the Client defaults in paying any sums due to Martlette ; (iii) the Client is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors; (iv) the Client is a company and has a provisional liquidator, liquidator, receiver, receiver and manager or official manager, trustee for creditors or in bankruptcy, voluntary administrator or analogous person appointed to it or its property; (v) the Client has judgment entered against it in any court and Martlette gives notice in writing to the Client that, in its sole discretion, Martlette considers it to be a default event; or (vi) a secured creditor seizes or takes possession of any collateral in the possession of the Client and Martlette gives notice in writing to the Client that, in its sole discretion, Martlette considers it to be a default event.
31. Right to Set-Off
a) Martlette may appropriate any payment received from the Client towards the satisfaction of any part of any debt owing or which may become owing by the Client or its related entity following an event of default event.
b) Martlette may deduct from amounts otherwise payable to the Client any amount which is owed or may become owing by the Client under any other supply or distribution agreement entered into with the Client, or any claim which Martlette reasonably considers it has against the Client.
c) Where the Client is a trustee, the Client acknowledges that the right of set-off contemplated by this clause binds it as trustee personally.
d) The Client expressly warrants that it has the authority to bind its related entities for the purposes of this set-off clause and agrees that this clause may be relied upon as acquiescence of such authority in making any claim of set-off against a party and/or any member of a group company.
32. Amendment
These terms may be changed, amended or altered in part, or in full, without warning by Martlette. It is the responsibility of the Client, and his/her staff, to read and understand these Terms.
33. Miscellaneous
a) The Client must not assign any rights or benefits under these Terms unless it has obtained the prior written consent of Martlette , with such consent at the absolute discretion of Martlette .
b) All communications from the Client to Martlette must be made in writing, including correspondence by email.
c) Martlette is entitled to rely on orders made by any employee, agent or contractor of the Client. Such orders shall be deemed to have been made with the authority of the Client and will be binding.
d) Martlette reserves the right to correct any errors or omissions of any kind in its offers, quotations, order confirmations or invoices, and the correction will be binding on Martlette and the Client.
e) These Terms are governed by the laws of Victoria, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.
f) If any of these Terms are determined invalid, unlawful or unenforceable in whole or in part, such term shall be severed and the remaining terms shall continue to operate to the fullest extent permitted by law.
g) These Terms and the quote and any alterations made in writing by Martlette constitute the entire agreement between the parties in relation to the supply of works, and supersedes all previous agreements or understandings between the parties including any inconsistent terms in any order.
34. Website disclaimer
All information contained in this website is intended for general information purposes only. The information is provided by Martlette. We try to keep the information up-to-date and ensure that it is correct, however, we make no warranties of any kind concerning the accuracy, completeness, suitability, reliability, or availability of the information contained in this website, or any products, services, links, or graphics that may be found on this website. Use this information at your own risk. Martlette will not be held liable for any loss or damage, or loss of data from your use of this website, or in connection with this website. This includes indirect or consequential loss or damage. Martlette has no control over websites that are linked to on this website. Those third party websites are under the control of their owners, and Martlette will not be held liable for your use of those websites. By linking to these sites, we are not endorsing or recommending any information or views expressed in the content on those sites.