2. matters not covered by estimate
The Estimate does not include, unless explicitly stated in the Estimate:
- Creative services including copy development, writing, editing, photography, and illustration.
- Preparation of special artwork including drawing of logotypes, non-standard typefaces, maps, diagrams, and preparation of existing materials for reproduction such as partial or complete redrawing, line conversion and retouching.
- Production services including typesetting and proofreading, preparation of special presentation materials including detailed renderings, models, mock-ups, and slide presentations.
- All costs associated with the implementation of the Project design other than the costs incurred by Block to coordinate the provision of printing, fabrication and installation services (‘Implementation Services’); the provision of specifications to the suppliers of printing, fabrication and installation services; and ensuring the resulting products meet a suitable quality level.
- Unless otherwise specified in this Agreement, Block has no responsibility to the providers of the Implementation Services, and charges therefore shall be billed directly to You. While not responsible for Implementation Services, Block may assume responsibility for paying such charges as your agent, and Block shall be entitled to reimbursement from You for those costs.
- Any work not described in the Work set out in Block’s covering letter (‘Additional Work’).
In the event you request Block to carry out Additional Work, a new estimate and scope will be provided.
3. Our Rates
You agree to pay Block at the rates set out in Block’s estimate.
4. disbursements
In addition to Block’s rates You agree to pay Block’s reasonable disbursements including but not limited to expenditures for Implementation Services, type-setting, prepress and printing, illustration, photography, film and processing, proofs, presentation and artwork materials, typefaces and long-distance telephone charges, postage and local deliveries, including messengers, out-of-town travel and shipping, and any other expenses or disbursements incurred (‘Disbursements’).
5. payments and other payments in advance
Block may, in its sole discretion, require You to pay a deposit in respect of fees or Disbursements within the time period specified by Block.
Any payments other than any deposit must be paid within 14 days of the receipt of an invoice from Block by You.
6. anticipated completion date
Block will use its best endeavours to complete the Work and any Future Work within the Anticipated Completion Date (as defined in Block’s covering letter).
7. urgent work
The rates charged under this agreement are charged on the basis of the Work being performed in the ordinary course of business and during ordinary working hours which are 8.30am – 7pm Monday to Friday, excluding public holidays (‘the Usual Hours’).
Where any work is to be performed urgently and requires work to be performed outside the Usual Hours any rates as set out in Block’s covering letter unless otherwise agreed between the parties will be increased by 20%.
8. default
If it becomes apparent to Block that its relationship with You of mutual trust and confidence has irretrievably broken down, then Block may give You 48 hours notice that this agreement is at an end.
9. no set off or deduction
Any amounts payable under this agreement must be paid without set off or deduction.
10. privacy act
You agree that in accordance with Section 18K(1)(c) of the Privacy Act 1988, Block may obtain from a credit reporting agency a credit report containing personal information about You.
11. your obligations and warranties
Designated Person
You agree that:
- You will appoint one person with full authority to provide or obtain any necessary information and approvals that may be required by Block (‘Designated Person’), the name and contact details of the Designated Person being set out in Block’s covering letter;
- The Designated Person is fully authorised to brief Block, review any work that Block may present to the Designated Person, and make all decisions in respect of any work that Block are to perform;
- The parties agree Block may assume the Designated Person has all necessary authority and powers to make binding decisions on Your behalf in respect of the Project design unless and until You notify Block in writing of any change; and
- The Designated Person’s decisions and approvals are final and binding on You.
Materials
You agree:
- To provide Block with instructions and input as and when Block require;
- To provide Block with accurate and complete information and materials to assist Block with any work to be performed under this agreement;
- That any information or materials given to Block is Yours to give and does not breach any obligation You have or may have to any other party including but not limited to any third party rights in respect of copyright and confidentiality; and
- That where You need to have the permission consent or licence of a third party to do any matter or thing required to be done by You under this Agreement You have obtained any such permission consent or licence.
Indemnity
You agree to keep Block and any of its servants and agents, contractors and associated third parties indemnified, and harmless from and against any claim, suit, damages and expense, including any legal fees:
- On a solicitor client or indemnity basis whichever is the highest; and
- Disbursements including expert reports and counsel’s fees, (together ‘Legal Costs’) arising directly or indirectly from or out of any claim by any party that its rights have been or are being violated or infringed as a result of any matter or thing done by You in Block’s dealings with You.
Limitation of liability
Block is not liable to You for any consequential losses, howsoever arising and You release Block from any liability for consequential losses. The parties agree Block is not liable for any other loss to the extent permitted by law. Although Block will exercise all reasonable care, honesty, and diligence in providing the Work, the parties agree that in the absence of express instructions to perform relevant searches, Block makes no warranties that the outcome of any of the Work is not already owned by third parties.
Approval of Typesetting and Final Artwork
- The Designated Person must proofread and approve all final artwork before the production or manifestation of any artwork.
- The Designated Person’s written direction in no matter what form is conclusive as to the approval of work whether prior to its release for any further production process or otherwise.
Warranty and Indemnity – Statutorily Regulated Professions
- If You are a member of a profession that is regulated by a State or Commonwealth statute, or the subject of the Final Work comes under the control of a State or Commonwealth professional regulatory statute, You warrant that You will obtain all necessary approvals prior to using the Final Work.
- Whether or not You obtain all necessary approvals outlined in the preceding paragraph, to the fullest extent permissible by law, You indemnify and hold Block and its employees, agents and representatives harmless against any demands, proceedings, judgments, liabilities, third party claims and costs (including legal costs on an indemnity basis) whether direct, indirect or consequential, caused by or arising out of, or in connection with the use of the Final Work in so far as such use breaches any professional regulatory statute.
12. appointment as agent
For the duration of the Works or the Future Work You irrevocably appoint Block as Your agent to appoint, hire instruct or otherwise engage any third party which in Block’s opinion is required or reasonably necessary for Block to undertake the Work or the Future Work including but not limited to photographers, illustrators, writers, printers, and fabricators.
13. work and future work – block’s rights
You grant Block the right to use the outcome of the Work or any Future Work for any of its promotional purposes including industry awards and competitions, industry magazines and expositions, its website and marketing portfolio, and other reasonable marketing activities.
Nothing in this clause entitles Block to deal with Your intellectual property in such a way that it may infringe any of Your patents, trademarks, confidential information or trade secrets.
14. intellectual property – block’s rights
Our intellectual property in the Work consists of
- Our trade marks and all associated names, marks, logos, ‘get-up’ and indicia;
- Our designs;
- Our patents or patentable processes if any;
- Our copyrights and neighbouring rights;
- Our systems, image, methods, specifications, procedures, trade secrets, software including but not limited to source codes;
- Any Works presented to you as a draft option and which were not ultimately chosen by you for use as the final work (‘the Final Work’); and
- Our moral rights as defined in Part IX of the Copyright Act, (together ‘Our Intellectual Property’).
Upon final payment of all outstanding invoices Block agrees, if requested by You, to assign and deliver to You all intellectual property in the Final Works including but not limited to:
- Any drawings relating to the Final Work that Block make or have made on Your behalf;
- Any of Block’s artwork relating to the Final Work;
- Any specifications Block develop particular to the Final Work; and
- Any of Block’s visual presentation materials directly relating to the Final Work and not owned by any third party.
Block may retain any Works including Final Works not delivered to You for a period of 12 months only after which time We may destroy it without any liability to You and without the need to give any notice to You.
15. block’s right to use parts of the works
You agree that Block may use all or any part of the outcome of the Works for its promotional and marketing purposes.
16. intellectual property – third party rights
Block may use typefaces, software, or intellectual property belonging to third parties (‘the Third Party Materials’) in performance of the Works and any Future Works (‘the Third Party Rights’).
In the event that the use of the Third Party Materials is subject to a license which requires You to be bound to the terms and conditions of that license, Block will where necessary seek Your acceptance of those terms and conditions prior to incorporation of the Third Party Materials in the Final Works.
17. retention of title and trust over proceeds
Title to the manifestation of the Final Work or any Future Work (‘the Manifestation’) does not pass to You until You pay Block in full.
18. goods and services tax
interpretation
In this clause 18 and the balance of this agreement, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST Law’) has the meaning given to it in that Act.
consideration is gst-exclusive
Unless specifically described in this agreement as ‘GST-inclusive’, any consideration to be paid or provided for a supply made under or in connection with this agreement does not include an amount on account of GST, and is ‘GST-exclusive’.
gst must be paid
Where pursuant to the GST Law any supply to be made by a Party (Supplier) to another Party (Recipient) under or in connection with this agreement, is subject to GST (other than a supply the consideration for which is specifically described in this agreement as GST-inclusive) then:
- the consideration payable or to be provided for that supply under this agreement will be increased by, and the Recipient will pay to the Supplier, an amount equal to the GST calculated according to the GST Law; and
- the Recipient must pay that additional GST amount at the same time and in the same manner as the GST-exclusive consideration is paid or provided; and
- a reference to the consideration payable for a supply includes the value of any non-monetary consideration for the supply.
provision of tax invoice
If the Supplier is Registered or required to be Registered, the Supplier must provide a GST compliant tax invoice in connection with any supply made by it under this agreement, failing which the Recipient will not be obliged to make any payment for that supply.
19. assignment
Block may assign any or all of its rights under this agreement.
20. termination – block’s rights
Without limiting Block’s rights to recover damages from You, Block may terminate this agreement immediately by giving notice orally or in writing to You if:
- You have reasonable grounds to suspect You are or may become insolvent;
- You do not give Block instructions promptly;
- You do not comply with this agreement in any respect; or
- for reasons beyond its control Block is unable to perform any of its obligations under this agreement, Block can immediately terminate this agreement without being liable to You for any loss or damage.
21. termination – your rights
You may terminate this agreement by giving 30 days written notice to Block.
22. entire agreement
This agreement constitutes the entire agreement between Block and the parties.
23. notices
Any notice, request, consent or other communication (“Communication”) to be given by a party under this agreement must be in writing addressed in accordance with the particulars for that party given in this agreement or to such other address for a party as may be notified in writing by that party to the other parties.
Each Communication must be delivered by hand or prepaid post, or sent by telex or facsimile provided that a Communication sent by telex or facsimile must be immediately confirmed in writing by the sending party by hand delivery or prepaid post.
24. governing law
This agreement is governed by the laws of the State of Western Australia and the parties expressly submit to the jurisdiction of the courts of Western Australia in determining any issue which arises out of or is in any way related to this agreement.
Any judgment obtained by Block is enforceable in any jurisdiction where You hold assets.
You expressly agree to submit to any enforcement proceedings in any such Court under this clause without objection.
25. severability
In the event any provision of this agreement is held to be unenforceable it shall be severed and the remaining provisions are not affected or impaired and this Agreement is to be construed so as to most nearly give effect to the intention of the parties as it was originally executed.
26. interpretation
In this agreement, unless the context otherwise requires:
- Words importing the singular include the plural and vice versa;
- words denoting one gender include all genders;
- a reference to a person includes a reference to a corporation, partnership, joint venture or trust and vice versa;
- a reference to a person includes all their heirs, executors, or in the case of a corporation includes that party’s successors and permitted assigns;
- a reference to a related company or corporation means a related corporation as defined by the Corporations Law;
- where two or more persons are named as a party their warranties, covenants and agreements bind them jointly and severally;
- a reference to any legislation includes any statutory modification, amendment or re-enactment of the legislation and all legislation, statutory instruments and regulations issued under the legislation;
- a reference to writing includes typewriting, lithography, electronic mail and other methods of producing words in a visible format;
- any terms defined in the statement of the names and descriptions of the parties has the meaning there defined;
- headings are for convenience only and do not affect interpretation;
- reference to a Clause, sub-Clause, item or schedule is a reference to the corresponding Clause, sub-Clause, item or schedule in this agreement;
- reference to any document or agreement includes reference to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;
- where any word or phrase is given a definite meaning in this agreement any part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
- reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
- reference to a time and date in connection with the performance of an obligation by a party is a reference to the time and date in the State of Western Australia notwithstanding the obligation is to be performed elsewhere;
- where by virtue of the provisions of this agreement the day on or by which any act, matter or thing is to be done is a Saturday, a Sunday or a public holiday in the place in which such act, matter or thing is to be done, then that act, matter or thing must be done on the next succeeding day which is not a Saturday, a Sunday or a public holiday; and
- in the event of inconsistency between this agreement and any other document this agreement prevails.
