5dn.com.au - create solutions, 5 Degrees North

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We provide graphic design,
web video, animation,
photography and tailored
communication content to
our clients across Sydney
and the Northern Beaches.

Graphic Design
Promotional Merchandise
Packaging
3D Visualisation
Communication

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Terms and Conditions

 

1.    The Work 

1.1    The Client will provide 5DN with information and documentation relating to the services to be performed by 5DN (“the Documentation”).
1.2    5DN will provide, for the Client’s approval, a comprehensive brief and quote of the services and works (“the Works”) to be performed.
1.3     If the Client wishes to appoint 5DN to perform the Works then the Client acknowledges and accepts the terms and conditions set forth herein.
1.4    If the Works include works relating to Website Design, Website CMS & Customisation or Website development, then the Client acknowledges and accepts the terms and conditions set out on 5DN’s website, in addition to the terms and conditions set forth herein.

2.    Delay

2.1    In the event that the Client is delayed in providing the Documentation to 5DN, 5DN will be entitled to a reasonable extension of time, following provision of the Documentation, to complete any relevant Works.  
2.2    If a delay in respect of a provision of the Documentation or the Services continues for more than 30 days after a due date, such a delay will constitute a Termination Event

3.    Reporting and approval

3.1    The Client will nominate a single representative as the client’s authorized representative and the company will rely on that representative having actual authority to make binding decisions on behalf of the Client.   
3.2    5DN will, during the term of this agreement, report to and take directions from the nominated representative of the Client, and the nominated representative of the Client will be responsible for final approval of the Works in stages as they are completed (“Final Approval”). 

4.    Variations

4.1    After the Client has provided Final Approval for any of the Works and/or the Documentation, any future changes may involve significant additional expense. Therefore any requested change to the strategic, design or creative aspects of the Works after the Client has provided Final Approval for any such stage or any change to the Documentation will constitute a variation to this agreement which must be carried out in accordance with the procedure set out in clause 4.2.
4.2    The Client may request variations to the strategic, design and/or creative aspects of the Works or the Documentation at any time (“a Variation Request”), subject to the following:
4.2.1    A Variation Request must be in writing.
4.2.2    Within seven (7) days of receiving a Variation Request, 5DN will advise the Client of any additional charge(s) payable to implement the variation(s), and the time within which the variation(s) can be effected.
4.2.3    In the event that the Client does not agree to the additional charge(s) or the time within which the variation(s) can be effected, such event will constitute a Termination Event.
4.2.4    If agreement is reached (in writing) between the parties as to the additional charge(s) and time within which the variation(s) can be effected, such agreement will be deemed a variation to this agreement and the varied terms are incorporated herein.

5.    Ongoing Management & Support

5.1    If the Client requires and requests any ongoing management or support from 5DN, the Client agrees to pay 5DN at the rates specified in the rates sheet detailed in the quote, which is subject to change from time to time at 5DN’s discretion.

6.    Payment

6.1    The Client must pay 5DN for carrying out the Works at the price ( not inclusive of GST ) specified as follows:
6.1.1        Where the costs of the Works are less than $500:
        (i)     Payment is to be made in full prior to Commencement of the Works.
6.1.2        Where the costs of the Works falls between $500 - $3,000:
        (i)     One-half (1/2) thereof prior to Commencement of the Works;
        (ii)     One-half (1/2) thereof upon Completion of the Works. Works will be released on receipt of payment.
6.1.3        Where the costs of the Works is greater than $3,000:
         (i)     As to one-third thereof prior to Commencement of the Works;
         (ii)    As to one-third thereof upon completion of the Design phase;
         (iii)    As the remaining one-third thereof, upon final completion of the Works. Works will be released on receipt of payment.

7.    Ownership of intellectual property

5DN:
7.1     assigns to the Client all existing and future Intellectual Property Rights in the Works other than Third Party Rights (if any) and 5DN Proprietary Rights (if any);
7.1.2    grants to the Client a licence to use the Intellectual Property in accordance with the terms and conditions of the Third Party License Agreement, to which the Client agrees to be bound; and
7.1.3    will provide the Client with copies of licenses with respect to the Third Party Rights (if any).
7.2    In relation to any Third Party Rights that are not assigned to the Client and any 5DN Proprietary Rights, the Client will ensure that the accessing and use of any such material by any end user will not infringe any such rights.

8.    Liability 

8.1    The Client acknowledges and accepts that, to the extent permitted by law, 5DN will be under no liability to the Client whatsoever, for any consequential loss or damage caused to the Client by 5DN’s breach of this agreement, and that 5DN’s liability to the Client is limited as follows:
8.1.2    In the case of supplying services, to re-supply services; and
8.1.3    In the case of supplying goods or property, to re-supply goods or property.
8.2    The Client further indemnifies 5DN for any breach of any Third Party License Agreement entered into by 5DN on behalf of and for the advantage of the Client.

9.    Acknowledgment of 5DN

9.1    The Client agrees that 5DN will be acknowledged as the developer of any web site developed pursuant to this agreement.

10.    Confidentiality

10.1    Each party acknowledges that it, its employees or subcontractors, may be given access to Confidential Information in the course of implementing this agreement.
10.2    Each party will keep the Confidential Information confidential and will not disclose it to any third party or use it otherwise than:
10.2.1    for the purposes of this agreement;
10.2.2    as authorised in writing by the other party;
10.2.3    as required by any law;  or
10.2.4    by way of disclosure to that party's professional advisers who have agreed to keep the Confidential Information confidential.
10.3     On termination of this agreement, each party will return to each other party all documents or copies of documents containing information which is, at the date of termination, Confidential Information.

11.    Breach of agreement and termination

11.1     If a party is in breach of this agreement, the other party may give them a notice:
11.1.1.     specifying the breach; and
11.1.2            requiring that party to rectify the breach within ten (10) Business Days of the date the party received the notice.
11.2        The non-defaulting party may terminate the agreement if after the expiry of the notice the defaulting party has not rectified the breach specified in the notice.
11.3    This agreement may be terminated by either party if a Termination Event occurs.
11.4    The termination of this agreement is without prejudice to any rights which have accrued to a party before the date of termination.

12.    Consequences of termination

12.1    Termination of this agreement will not effect any rights or remedies that may have accrued to the parties prior to termination or consequent upon termination.

13.    Enforceability

13.1    Any clause or part of a clause of this agreement which is void, illegal or unenforceable in any jurisdiction is void, illegal or unenforceable only to that extent in that jurisdiction.
13.2    Where any clause or part of that clause is void, illegal or unenforceable it may be severed without affecting any other part of this agreement.

14.    Variatio

14.1    Any variation of this agreement will be in writing and signed by each of the parties.

15.    Entire agreement

15.1    This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.

16.    Survival

16.1    The terms of this agreement survive its termination to the extent permitted by law.

17.    Governing law and jurisdiction

17.1    This agreement is governed by the laws of the State of New South Wales.
17.2    The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New South Wales.

18.    Guarantee

18.1    If the Client is a company, the director(s) and/or officer(s) of the Client that have executed this agreement on its behalf hereby jointly and severally guarantee due performance of the Client’s obligations pursuant to this agreement, including its obligation to pay money.

19.     Definitions and interpretation

19.1    Definitions

 ‘Business Day’ means a day on which the Commonwealth Bank of Australia is open for business in the state or territory in New South Wales.
‘Confidential Information’ means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to either party, their sublicensees, agents, employees, End Users, Documentation, Intellectual Property Rights, its affairs or businesses, sales, marketing or promotional information, the terms of this agreement, the terms of this agreement, and including any such information in the party's power, possession or control concerning or belonging to any third party. However it does not include information:
(a)    where the information is, or becomes part of the public domain, otherwise than by breach of this agreement; or
(b)    where the information is lawfully obtained from another person without any restriction as to use  and disclosure; or
(c)    where the information was in either party's possession prior to disclosure to it by the other party.
‘5DN Proprietary Rights’ means Intellectual Property Rights that were created, developed or acquired by 5DN, or any sub5DN thereof, other than for the purposes of the Works under this agreement, and also includes any designs, concepts, drawings, sketches or other works created by 5DN during a creative or design phase that did not receive the Client’s Final Approval. 
 ‘Documentations’ means the Client’s written material (if any)..
‘End User’ means any person who accesses the Works.
‘Insolvency Event’ means, in relation to a party:
(a)    a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official, appointed over any of the assets or undertaking of the other party;
(b)    the party suspends payment of its debts generally;
(c)    the party is, or becomes unable to, pay its debts when they are due or is, or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act;
(d)    the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e)    the party ceases to carry on business or threatens to cease to carry on business;
(f)    a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; or
(g)    an application or order is made for the winding up or dissolution of the other party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first party.
‘Intellectual Property Rights’ means any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyright and rights in the nature of or analogous to copyright).
‘Termination Event’ means:
(a)    an Insolvency Event;
(b)    a warranty in cl 10  made by the other party proving to have been false, incorrect or misleading when made;
(c)    an event specified in cll 2.2, 4.2.3 and 11.3 ; or
(d)    a Force Majeure Event that continues for more than twenty-eight (28) Business Days.
‘Third Party Rights’ means Intellectual Property Rights owned by or licensed to third parties including:
(a)    computer programs owned by third parties and licensed by the 5DN and any subcontractors; and
(b)    any literary, dramatic, artistic and musical works owned by third parties and licensed for inclusion in the Works.
19.2    Interpretation
In this agreement:
(a)    headings are for convenience only and do not affect the interpretation of this agreement;
(b)   
(c)    a word or expression in the singular includes the plural and vice versa;
(d)    other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(e)    a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under that statute;
(f)    a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
(g)    a reference to a party to this or any other agreement includes that party's successor and permitted assignee;
(h)    a reference to a clause includes a reference to a subclause;
(i)    a reference to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture, association, board, government or semi-government agency or authority and that person's successors and legal personal representative; and
(j)    “includes” or “including” or words of a similar effect are not words of limitation.