TERMS AND CONDITIONS


1. DEFINITIONS AND INTERPRETATION


1. Definitions
Acceptance or Accepted has the meaning given to it under Clause 4(b); Client Content means elements of any and all materials, information, photography, text, graphics, photos, designs, trademarks, or other artwork furnished by you to Twenty20 Creative for use in the preparation of and/or incorporation in the Services and Deliverables;

Creative Agents has the meaning given to it under Clause 2.1(c); Deliverables means the final and finished work product specified in Item 6 of the Term Sheet of this Agreement to be delivered by Twenty20 Creative to the Client;

Delivery Date means the date(s) the Services and/or Deliverables are provided and/or delivered to the Client in accordance with the Production Schedule and as specified in Item 6 of the Term Sheet, or as otherwise mutually agreed by Twenty20 Creative and the Client in writing;

Disbursements means any approved out of pocket expense incurred by Twenty20 Creative in the course of performing the obligations under this Agreement, including but not limited to travel expenses, postage, shipping, models, presentation materials, photocopies, equipment rental, photographer’s costs and fees, photography licences, font licences, artwork licenses, prototype production costs, talent fees, music licenses, software licenses, online access, “software as a service”, hosting fees, and any Third Party Components (as defined herein) fee;

Force Majeure means where the performance of either party’s obligations hereunder is delayed or becomes impossible of performance for any reason beyond its reasonable control (including but not limited to war, invasion, act of foreign enemy, hostilities whether war be declared or not, civil war or strife, rebellion, strikes, pandemics, lock-outs or other industrial disputes or act of God);

Intellectual Property means all products, results and proceeds of works made, created and/or developed including, but not limited to, artwork, graphic design work, web site design, flow charts, algorithms, look and feel, applications, software, sound recordings, cinematographic films, photographs, product design, literary work, manufacturing process, business method or other invention or work of creative authorship, including without limitation all copyrights, trademarks, service marks, trade dress, trade secrets, moral rights, contractual rights of non-disclosure, design and patent rights or other proprietary rights throughout the world;

Modification has the meaning given to it under Clause 5.1; Overdue Amount means an amount (or part thereof) which has been outstanding for more than 30 days from the issue of a valid tax invoice;

Production Schedule means the schedule setting out the timeline for the performance of the Services and delivery of the Deliverables, as set out in Schedule B of this Agreement; Related Bodies Corporate has the meaning assigned to it in the Corporations Act 2001; Services means those services as specified in Item 6 of the Term Sheet of this Agreement to be provided by Twenty20 Creative to the Client; Term has the meaning given to it under Clause 6.1; Third Party Components include external and third party tools, software, services, works and materials for which intellectual property ownership may vest with other parties including but not limited to stock or commissioned photography, film, music, font type, or illustration, and any other third party work, which may be (but is not limited to) a work of an artistic, literary or dramatic nature;

2. Interpretation

  1. In this Agreement, unless otherwise indicated by the context:

    1. words importing the singular include the plural and vice versa;

    2. headings are for convenience only and do not affect interpretation of this Agreement;

    3. a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;

    4. a reference to dollars, fees, payments and currency shall be in the currency stated on this Agreement, and where no currency has been expressly stipulated, it shall be in Australian dollars; and

    5. a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally.

PROVISION OF SERVICES

  1. Services and Deliverables

  1. In consideration of payment of the Fees, Twenty20 Creative will deliver the Services and Deliverables in accordance with this Agreement.

  2. Twenty20 Creative will deliver the Services and Deliverables by well-trained and well-qualified personnel on a professional basis, consistent with the best practices in the creative industry and in a diligent, workmanlike manner.

  3. Twenty20 Creative may hire third party designers, creatives or service providers as independent contractors (Creative Agents) in connection with the provision of the Services and Deliverables.

  4. Twenty20 Creative shall be responsible for Creative Agents’ compliance with this Agreement.

  5. Twenty20 Creative will not be required to deliver any Services and Deliverables not expressly described in this Agreement.

2. Production Schedule

  1. Twenty20 Creative will use its best endeavors to adhere to the Production Schedule.

  2. You understand and agree that Twenty20 Creative is not responsible if the Production Schedule is or is required to be extended for reasons beyond Twenty20 Creative’s control, including but not limited to a Force Majeure event or if you fail to provide instruction, information, Acceptance, Client Content etc in a timely manner or as reasonably requested by Twenty20 Creative.

  3. If the Production Schedule is or is required to be extended or suspended for any reason (including for any reason outlined in Clause 2.2(b), you agree that Twenty20 Creative may follow the Modification process to take into account the additional time frame and resources required.

  4. In the event that the Production Schedule is or is required to be suspended or extended at no fault of Twenty20 Creative, you acknowledge that Twenty20 Creative’s availability may be affected which may result in further delays in Twenty20 Creative’s to deliver the Services and Deliverables.

  5. Twenty20 Creative will use reasonable endeavors to inform the Client any likely extension of the Production Schedule in a timely manner.

3. CLIENT RESPONSIBILITIES

  1. You must:

  1. provide clear instructions to Twenty20 Creative for the Services and Deliverables;

  2. provide finished and proofread Client Content in a form suitable for reproduction or incorporation into the Services and Deliverables prior to the commencement of the Services by Twenty20 Creative, and you hereby warrant that all Client Content shall be correct and accurate and where applicable warrant that you shall have obtained all necessary approvals, clearances, consents and assignments in such Client Content to enable Twenty20 Creative to use the Client Content in connection with the Services and Deliverables;

  3. proofread Services and Deliverables;

  4. ensure timely, safe and appropriate access is available to Twenty20 Creative at all relevant times during the Term to enable Twenty20 Creative to fully and properly perform the Services and provide and install (as applicable) the Deliverables at the site where such Services and Deliverables are to be performed; provide proper and adequate facilities to enable Twenty20 Creative to deliver the Services and Deliverables.

  5. provide proper and adequate facilities to enable Twenty20 Creative to deliver the Services and Deliverables.

2. You shall nominate no more than one (1) creative contact as the key decision maker and appoint a person to provide directions and instructions to Twenty20 Creative.

3. You warrant and unconditionally guarantee that all Client Content provided by you to Twenty20 Creative is owned and/or controlled by you, or that you have full right and authority from the rightful owner to use such elements.

4. You agree that you are responsible for obtaining all necessary assignments of copyright and other Intellectual Property rights and all clearances, consents and licences in respect to any Third Party Components and you shall be responsible for complying with the licence terms and conditions and payment of associated licence fees for any Third Party Components embodied in the Services and Deliverables.

4. ACCEPTANCE

1 At various stages throughout the Term of this Agreement, Twenty20 Creative will ask you to confirm your acceptance of any aspect of the Services and Deliverables (Acceptance Request). Acceptance is important as it will be relied on by Twenty20 Creative in the course of fulfilling its obligations under this Agreement.

2. Acceptance will occur upon the earlier of:

  1. you providing written notice of acceptance to Twenty20 Creative; or

  2. two (2) days after Twenty20 Creative issuing you with an Acceptance Request; or

  3. the date the Services and Deliverables are launched, reproduced, communicated to the public, or otherwise used or exploited by you.

3. If you do not wish to give Acceptance in relation to a Deliverable:

1. you must not launch, reproduce, exploit, use or communicate to the public such Deliverable; and

2. within two (2) days of the date of the Acceptance Request, you must give written notice that you are not giving your Acceptance and concurrently request a Modification in accordance with Clause 5.

4. If you have given your Acceptance in respect of any aspect of the Services and Deliverables and such Acceptance is elied on by Twenty20 Creative and you then change your mind Twenty20 Creative will follow the Modification process as outlined in Clause 5.

5. MODIFICATIONS

1. Twenty20 Creative understands that sometimes the Project scope and/or Services and Deliverables will need to be modified, changed or updated (Modification). You acknowledge and agree that any Modification may impact the Fees and/or Production Schedule. The parties will agree in good faith, taking into account the impact to the Fees and/or Production Schedule, as to whether to proceed or not with such Modification.

2. Save as provided for in clause 5.1, you shall not, during the Term or at any time thereafter change, revise, amend or alter any of the Deliverables without the express prior written consent of Twenty20 Creative.

6. TERM

  1. The Term of this Agreement shall commence on the Commencement Date and shall continue until the Delivery Date, unless terminated in accordance with Clause 10.

7. FEE AND PAYMENT TERMS

  1. You agree to pay Twenty20 Creative the Fees and Disbursements in accordance with this Agreement.

  2. If any payment is not received in accordance with this Agreement, Twenty20 Creative may:

  3. charge simple interest on any Overdue Amount, at the rate of seven percent (7%) per annum; and

  4. exercise a lien against any of the Services and Deliverables; and

  5. suspend working on the Services and Deliverables until such time that all outstanding payments are paid.

  6. Discounts are only valid if accounts are paid within the payment terms, late payments will result in discount being re-applied.

8. TRAVEL EXPENSES

  1. for any flight less than four (4) hours – economy class seating;

  2. for any flight of more than four (4) hours but less than eight (8) hours – premium economy class seating;

  3. for any flight of more than eight (8) hours – business class seating;

  4. ground transportation costs; and per diems of AUD $75 (seventy five Australian Dollars) or equivalent in local currency for each day a Traveler is deemed a Traveler (ie further than 50 kilometres from Twenty20 Creative’s normal business premises), or as otherwise agreed and as set out in the Production Schedule.

  5. Travel days will be charged at a full day-rate unless under 6 hours when a half day will be charged.

  6. All transfers to and from airports and railway stations will be reimbursed.

9. Accommodation and Subsistence

  1. Where you expressly require Twenty20 Creative employees, Creative Agents, and/or representatives to attend a location further than 50 kilometres from Twenty20 Creative normal business premises (Travelers), you agree to pay all of Twenty20 Creative’s reasonable travel and accommodation expenses, together with any reasonable per diems, for each Traveler as follows:

  2. single room accommodation in a modern hotel or serviced apartment with private facilities and of a minimum 4 star or equivalent;

  3. High speed Wi-Fi should be provided.

  4. Where an overnight stay is required a per diem should be paid no less than that paid to other members of the production team


10. INTELLECTUAL PROPERTY

  1. Subject to Clause 3 herein, Twenty20 Creative represents and warrants that as at the Delivery Date and to the best of Twenty20 Creative’s knowledge and belief, the Services and Deliverables do/does not infringe upon the Intellectual Property rights of any third party, however, Twenty20 Creative will not conduct nor be required to conduct any type of Intellectual Property clearance search (for example, copyright, trademark, patent or design patent clearance search) to verify the same.

  2. You agree that all Intellectual Property made, created and/or developed by Twenty20 Creative in connection to this agreement or arising as a result of or in connection with the provision of the Services and the Deliverables will from their creation vest solely and exclusively in Twenty20 Creative

  3. (Twenty20 Creative Intellectual Property) and that:

    1. The license in or to any Twenty20 Creative Intellectual Property embodied in the Services and Deliverables shall only be granted in accordance with the terms of this Agreement and upon payment of the Fees; and

    2. the assignment in or to any Twenty20 Creative Intellectual Property embodied in the Services and Deliverables shall only be granted in accordance with the terms of this Agreement and upon payment of the Fees.

  4. Accordingly you shall not have the right to assign, sell, license or use directly or indirectly any of Twenty20 Creative’s Intellectual Property or work created pursuant to the Agreement or otherwise, whether for use in any media, the internet, merchandising or any other use whatsoever, save for promotional purposes of up to five minutes’
    duration, without the prior written consent of Twenty20 Creative.

  5. For the avoidance of doubt, Twenty20 Creative reserves the rights in and to all Twenty20 Creative Intellectual Property that is not incorporated into a Deliverable.

  6. Twenty20 Creative may, upon first launch of the Project reproduce, publish, perform and communicate to the public, the Services and Deliverables and Twenty20 Creative’s role in the Project, Twenty20 Creative’s portfolios and websites, in galleries and other exhibits, and in design periodicals, blogs, columns, and awards, for the purposes of
    professional recognition.

11. TWENTY20 CREATIVE PROPERTY & SECURITY

  1. Title to any equipment or other property provided by Twenty20 Creative for use by you in connection with the Services and Deliverables under this Agreement

  2. (Twenty20 Creative Property) shall at all times remain with Twenty20 Creative. You must not sell or part with possession or otherwise dispose of or deal with the Twenty20 Creative Property. You must keep the Twenty20 Creative Property free of any encumbrances, separate from other goods and marked so as to clearly indicate that the Twenty20 Creative Property belongs to Twenty20 Creative and in clean and good condition. You possess the Twenty20 Creative Property as bailee only, and must account to Twenty20 Creative as fiduciary in relation to the Twenty20 Creative Property. You shall ensure that all equipment provided by Twenty20 Creative in the course of carrying out the Services and delivering the Deliverables is protected at all times from theft, misuse, damage or destruction by any person whilst such equipment is on the designated worksite (as applicable). From the time of receipt by you of any Twenty20 Creative Property and for the duration such Twenty20 Creative Property is in your possession, you are fully responsible for any shortage, loss or damage to the Twenty20 Creative Property (whether as a result of the fault or negligence or otherwise of you and/or any third party). You must, from the time of receipt by you of any Twenty20 Creative Property and for the duration such Twenty20 Creative Property is in your possession:

    1. provide adequate security for the Twenty20 Creative Property;

    2. not remove or relocate the Twenty20 Creative Property other than in accordance with the provision of the Services hereunder without Twenty20 Creative’s prior written consent;

    3. maintain and return the Twenty20 Creative Property in the same condition it was in when you took delivery of the Twenty20 Creative Property subject to any fair wear and tear as determined by Twenty20 Creative;

    4. only use the Twenty20 Creative Property for the purposes for which the Twenty20 Creative Property was provided to you;

    5. permit the use of the Twenty20 Creative Property only by properly qualified and (if applicable) licensed persons, unless otherwise agreed in writing by Twenty20 Creative;

    6. not affix the Twenty20 Creative Property or any part of the Twenty20 Creative Property to any building or other property;

    7. insure the Twenty20 Creative Property for its full new for old replacement value against theft, loss or damage with a reputable insurer and must, upon request, provide the Twenty20 Creative with a certificate of currency in respect of such insurance policy.

3. You must pay to Twenty20 Creative within seven (7) days of any such demand by Twenty20 Creative:

  1. the cost of repairing any Twenty20 Creative Property; or

  2. the new for old replacement cost of any Twenty20 Creative Property that is lost or stolen or determined by Twenty20 Creative to be irreparably damaged.

12. CREDIT & BILLING

  1. You will use all reasonable endeavors to procure a credit or acknowledgement to Twenty20 Creative in any and all physical and electronic advertising and other means of promoting the Project on those terms as mutually agreed between you and Twenty20 Creative. Save where otherwise agreed, you shall have the non-exclusive right to use any
    approved biographical material and approved Twenty20 Creative logos and photographs for the purpose of procuring such credit or acknowledgement as aforesaid.

13. TERMINATION AND EFFECT OF TERMINATION

  1. Termination

  1. If either party fails to fulfill its material obligations under this Agreement to the reasonable satisfaction of the other party and such default is not rectified within seven (7) days after written notice of the breach or default is received by the defaulting party, the aggrieved party may (in addition to all of its other rights and remedies at law or otherwise) terminate the Term of this Agreement on giving written notice to the defaulting party.

  2. Either party may immediately terminate this Agreement, if the other party either enters into voluntary or compulsory administration, liquidation, receivership or bankruptcy or admits in writing its inability to meet its debts or other obligations as they become due.

2. Effect of Termination

  1. In the event of termination:

  2. you shall immediately pay to Twenty20 Creative all Fees and Disbursements incurred as of the date of termination; and

  3. Subject to Clause 11.2(a)(i), Twenty20 Creative shall license and/or assign (as applicable) to you the relevant Intellectual Property in the Services and Deliverables as at the date of termination, in accordance with Clause 9 herein.

14. WARRANTIES

  1. You undertake and warrant that:

  1. to the extent that the provision of the Services and Deliverables by Twenty20 Creative involves the use of materials or equipment provided by you (and including any Third Party Components) and compliance with your instructions, the provision of the Services and Deliverables by Twenty20 Creative will not invade or infringe the privacy of any person; be defamatory towards any person; breach any local, national or international law, statute or regulation; or infringe the copyright or any other Intellectual Property rights or personal rights of any person;

  2. you will provide a safe working environment for Twenty20 Creative and any Travelers and will comply with all applicable occupational health and safety legislation as applicable;

  3. you will not during the Term without Twenty20 Creative’s prior written consent directly or indirectly:

    1. solicit or in any way seek to procure any customers of Twenty20 Creative; or

    2. offer employment or other business-related engagement to any employees or freelancers of Twenty20 Creative.

15. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

  1. The Deliverables, including without limitation, all materials and fittings incorporated in the Deliverables are (except as expressly stated by Twenty20 Creative) provided 'as is' and 'as available' for your use (where applicable), without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

  2. Once you have indicated your Acceptance in relation to the Services and Deliverables, Twenty20 Creative makes no warranty that the Services and Deliverables will meet your requirements.

  3. Twenty20 Creative assumes no liability or responsibility for any use, non-use, or misuse of the Deliverables (including without limitation all materials and fittings incorporated in the Deliverables) in any manner other than as contemplated by this Agreement.

  4. Should the Deliverables be modified, altered, moved, or otherwise changed by any party other than Twenty20 Creative after the Deliverables have been delivered, fixed and/or installed by Twenty20 Creative, you acknowledge and agree that Twenty20 Creative shall not be liable to you or any third party, in any manner whatsoever in relation to any cost, expense, or damage directly or indirectly incurred in relation to the Deliverables.

  5. To the maximum extent permitted by law, Twenty20 Creative excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

  6. If any legislation operates to prohibit or restrict the exclusion, restriction or modification of any implied warranties, conditions or obligations, then to the maximum extent permitted by law, Twenty20 Creative limits its liability in respect of any such claim to, at its option:

  1. In the case of services:

  1. the supply of the services again; or

  2. he payment of the cost of having the services supplied again.

2. in the case of goods:

  1. the replacement of the goods or the supply of equivalent goods;

  2. the repair of the goods;

  3. the payment of the cost of repairing the goods, or replacing the goods or of acquiring equivalent goods.

16. INDEMNITY

1. You agree to fully indemnify and hold Twenty20 Creative, its subsidiaries, Related Bodies Corporate, directors, officers, employees, contractors, agents and license harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), whether in contract, tort, under statute or otherwise, directly or indirectly as a result of your use or misuse or non-use of or in connection with the Services and Deliverables, your breach of any provision or warranty of this Agreement or your violation of any applicable law or the rights of any third party.

17. CANCELLATION

  1. Standard Cancellation Policy

  1. All projects must be cancelled or postponed must in writing.

  2. 30% Deposit is non-refundable in the event of Cancellation.

  3. Cancellation from 8 - 14 days prior to the booked installation time, 30% payment is due.

  4. Cancellation from 2 - 7 days prior to the booked installation time, 60% payment is due.

  5. Cancellation from 48 hours prior to the booked installation time, full payment is due.

  6. Any payments made can be held as credit for a re-scheduled event within 12 months of the original date.

    Additional labor costs or re-mount fees may apply.

2. Cancellation due to COVID-19 Restrictions

If Government restrictions force the cancellation project or for the project to be cut short the following would apply:

  1. All projects must be cancelled or postponed must in writing.

  2. Any payments made can be held as credit for a re-scheduled event within 12 months of the original date.

  3. Any unused Labor would not be charged for.

  4. Any additional cost (such as re-design or pre-production time) required to re-mount the project will be advised and confirmed prior to the revised production schedule.

3. Impact of COVID-19 Restrictions on Delivery of Project

  1. If any government restrictions restrict Twenty20 Creative’s ability to meet any specific deadlines this will be communicated to the client as soon as possible.

  2. In the event that the project is re -scheduled prior to the beginning of work onsite, then the payment schedule would be adjusted to suit new dates. (i.e., 2nd Payment due on final day of installation, Final Payment due following completion of project)

  3. If country or jurisdiction requires hotel quarantine or home isolation for crew members, the client will be charged 50% of his/her day rate.

18. CONFIDENTIALITY

  1. Each party undertakes to keep confidential and not disclose to any third party the terms of this Agreement or any information supplied by the other party under this Agreement which is identified by the supplier as confidential, or which by its nature or the manner in which it was provided is confidential (including without limitation any information concerning the performance or actions of Twenty20 Creative and other persons during the delivery of the Services and Deliverables), other than as may be required by any applicable law or to their professional advisers.

19. INSURANCE

  1. You must at all times maintain adequate policies of insurance as follows:

  1. Professional indemnity insurance, except where you and your representatives are covered by Twenty20 Creative’s policy of insurance;

  2. Workers compensation insurance to the extent required by law;

  3. Public and product liability insurance, except where you and your representatives are covered by Twenty20 Creative’s policy of insurance; and

  4. Any other policy required by Twenty20 Creative from time to time. Twenty20 Creative may direct you as to what is “adequate” for the purposes of this sub-clause.

  5. You must provide certificates of currency in respect of the insurances required under clause 15.1 at any time upon request by Twenty20 Creative.

20. TAXES

  1. All Fees are exclusive of good and services tax (GST). Subject to Twenty20 Creative providing you with a tax invoice for the appropriate amount which complies with A New Tax System (Goods and Services) Act 1999, you agree to pay an additional amount of GST if and to the extent the Fee is considered a taxable supply for which Twenty20 Creative must account for GST.

  2. If you are required by law to deduct withholding tax from any payment due hereunder to Twenty20 Creative, you shall be entitled to deduct such withholding tax from the Fees payable to Twenty20 Creative, provided that within thirty (30) days of payment by you to the relevant tax authority, you shall so advise Twenty20 Creative and shall provide Twenty20 Creative with an original receipt (or other documentation as necessary) evidencing payment of such withholding tax, and such assistance as Twenty20 Creative may reasonably require for Twenty20 Creative to claim a tax credit for such amount. The parties shall cooperate in good faith and use reasonable efforts to minimise the withholding tax due and obtain benefits under applicable tax treaties without undue delay (including the submission by Twenty20 Creative of the relevant tax form to the relevant tax authority, as applicable).

21. GENERAL

  1. The parties are independent entities and Twenty20 Creative is engaged by the Client as an independent contractor to provide the Services and Deliverables. Nothing in this Agreement constitutes or creates any relationship of employment, joint venture, trust or legal partnership between the parties nor makes either of them a partner, agent, employee or representative of the other and agree that the Services and Deliverables have not been made or created as a "work for hire" under any copyright law.

  2. Each party warrants that it has the full right, power and authority to enter into this Agreement.

  3. If any provision of this Agreement shall be held to be invalid in any way or unenforceable the remaining provisions shall not in any way be affected or impaired thereby and this Agreement shall be construed so as to most nearly give effect to the intent of the parties as it was originally executed.

  4. Failure or omission by either party to enforce or require strict performance or timely compliance with any provision of this Agreement will not affect or impair that provision, or its rights thereto and shall not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.

  5. This Agreement and any document expressly referred to in them represent the entire understanding and agreement between the parties and may only be amended in writing.

  6. The Client shall not in any way assign or deal with interests under this agreement without Twenty20 Creative s prior written consent. Twenty20 Creative may assign or sub contract the performance of its rights and obligations under this agreement on such terms as Twenty20 Creative deems appropriate.

  7. Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement.

  8. This Agreement may be executed in several counterparts, and transmitted via facsimile or digital scan, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.

  9. This Agreement shall be read and construed according to the laws of the State of Victoria, Australia and the parties
    submit to the jurisdiction of that State.