These are The Royals standard terms of engagement available at (www.theroyals.com.au/termsandconditions)
They will apply unless some other terms are agreed.
The Client appoints the Royals to provide the Services on the terms and conditions set out in this Agreement.
1. SERVICES FEE
In consideration for providing the Services the Client agrees to pay the Royals the Fees (including any Sundries) within 30 days from receiving a valid tax invoice.
2. TERM AND TERMINATION
2.1 This appointment commences on the date the Client instructs the Royals or approves the Fees or Scope or any other commencement date agreed and continues until terminated in accordance with its terms.
2.2 Either party may:
(a) terminate this Agreement at any time by providing 90 days written notice to the other. If the parties agree a Minimum Term then the Early Termination Charges will apply if this Agreement is terminated by the Client under this clause 3.2(a) if such termination is before the end of the Minimum Term; or
(b) immediately terminate this Agreement by providing written notice, if the other party suffers an Insolvency Event or has breached a material term of this Agreement and has failed to remedy that breach within fourteen (14) days of receiving written notice of that breach.
2.3 Termination of this Agreement will not affect the accrued rights and remedies of either party.
2.4 Upon the termination or expiration of this Agreement, the Royals must immediately:
(a) stop using any records and Intellectual Property Rights owned by the Client;
(b) deliver to the Client such records and any materials containing Intellectual Property Rights owned by the Client as are required by the Client to the Client; and
(c) stop providing the Services.
2.5 The Client will pay the Royals the Fees relevant to the Services provided up until the date of termination and any Early Termination Charges.
2.6 Where notice to terminate is provided, the parties agree that the Client will pay for Services up to the date of the notice and any Services performed during the notice period. Where the Royals is on a retainer basis, the Client must pay pro rata the retainer fee for Services performed up to the date of termination.
2.7 Upon final payment of all amounts payable by the Client to the Royals pursuant to this Agreement, the Royals will assign to the Client all property and materials in the Royals' possession or control which have been paid for by the Client pursuant to this Agreement or which the Client otherwise owns or is entitled to pursuant to this Agreement, including, without limitation, the Intellectual Property Rights in the Developed IP and the Materials:
2.8 Partial termination - where a party has a right to terminate this Agreement under clause 3.2 or otherwise, either party may terminate this Agreement in respect of any part or all of the Services. If only part of the Services has been terminated, this Agreement will continue in force in respect of the parts of the Services which have not been terminated.
3. INTELLECTUAL PROPERTY
3.1 In the course of supplying the services, the Royals may develop Intellectual Property Rights
3.2 Upon full payment for each project and the payment of any Early Termination Charges, the Royals assigns to the Client all right title and interest in any Developed IP.
3.3 Each party owns and will continue to own all Pre-Existing IP. Each party grants to the other a non-exclusive, world-wide, royalty free licence to use, reproduce, modify and adapt its Pre-existing IP for the purposes of:
(a) performing its obligations or exercising its rights under this Agreement or providing or using the Services; and
(b) in the case of the Client, exercising its rights in Developed IP. The licence granted under this clause 4.3 is irrevocable and survives the termination or expiry of this Agreement.
3.4 Neither party may use or register any trade mark, business name or domain name which is the same as or similar to the other party's Pre-existing IP.
3.5 The Royals must take all steps necessary to assign (and to procure the other relevant Representatives to assign) the Developed IP to the Client, including without limitation executing documents and doing all things necessary to divest the Royals and/or the relevant Representative of any Developed IP.
3.6 For the avoidance of doubt, the parties agree that subject to any Intellectual Property Rights in the Materials the physical ownership of the Materials rests with the Client.
The Client represents and warrants to the Royals that
(a) any intellectual property provided by the Client to the Royals will not infringe any third party's Intellectual Property Rights (including moral rights);
(b) any information supplied by the Client to the Royals for use in the provision of the
(i) accurate, complete, true and not misleading;
(ii) where consent is required, such consent has been obtained;
(iii) does not breach any contract in which the Client is a party to; and
(iv) complies with all applicable laws and the requirements of any relevant government authority.
5.1 The Client indemnifies the Royals or any of its Representatives from and against all Loss arising from or in connection:
(a) with information or materials supplied by the Client to the Royals for use in the provision of the Services including any infringement or alleged infringement by the Client of any third party's Intellectual Property Rights (including moral rights); or
(b) otherwise arising from a breach by the Client of this Agreement (including breach of the warranties under clause 5).
6. LIMITATION OF LIABILITY
6.1 Except only for those rights and remedies that the Client has under the CCA and similar state and territory laws applicable to the Client and which cannot be lawfully excluded, restricted or modified:
(a) all conditions, warranties and consumer guarantees, whether statutory or otherwise, are excluded in connection with this Agreement; and
(b) the Royals maximum aggregate liability to the Client for any Loss which the Client suffers, incurs or is liable for in connection with this Agreement is limited to $1,000.
6.2 To the extent such applicable law in clause 7.1 permits the Royals to limit its liability in respect of such condition, warranty, right or remedy, the Royals does so, including, in the case of Services supplied pursuant to this Agreement, at its option:
(a) the payment of the cost of having the Services performed again; or
(b) the supply of the Services again.
7.1 Each party acknowledges that information disclosed to it by the other party under this Agreement is proprietary, confidential or a trade secret of the other party.
7.2 Except as stated in this Agreement, each party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any information disclosed to it by the other party without the prior written consent of the other party,
7.3 This clause does not apply to any information which:
(a) is generally available to the public (other than as a result of the wrongful disclosure by a party); or
(b) is required to be disclosed by any law.
The Client agrees not to solicit for or offer employment or work under a contract to the Royals' staff and/or its contractors without prior written agreement during and for a period of 12 months after the termination or expiration of this Agreement.
9. NON - EXCLUSIVITY
Each party acknowledges that rights under this Agreement are not exclusive.
10.1 The Client may not deal with the benefit of this Agreement in any way (whether by assignment, sub-licensing or otherwise) without the Royals prior written consent. The Royals may assign or otherwise transfer all or any part of this Agreement by any means, provided the Royals gives the Client 30 days’ notice prior to making an assignment or transfer.
10.2 If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
10.3 This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
10.4 Each obligation and warranty which is intended to survive termination continues in force despite termination.
10.5 The relationship between the parties is and will remain that of independent contractors.
10.6 This Agreement may only be amended in writing signed by all the parties. The Royals may vary the terms of the Terms and Conditions at any time by written notice to the Client. Such variation will only affect agreements entered into by the Client and the Royals after the date of the Royals notice.
10.7 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
10.8 This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A party may execute this Agreement by signing any counterpart.
10.9 The rights, powers, authorities, discretions and remedies arising out of or under this agreement are cumulative and do not exclude any other right, power, authority, discretio or remedy of the parties.
11.1 A party waives a right under this Agreement only if it does so in writing.
11.2 A party does not waive a right simply because it:
(a) fails to exercise the right;
(b) delays exercising the right; or
(c) only exercises part of the right.
11.3 A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
12. GOVERNING LAW AND JURISDICTION
12.1 The law of New South Wales governs this Agreement.
12.2 The parties submit to the exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.
13. FORCE MAJEURE
No party will be liable for any failure to carry out any provision of this agreement if the failure was caused by circumstances beyond its control such as, but not limited to, acts of God, fire, accident, interruptions to energy supplied, strike, riot, civil commotion, acts of terrorism or war whether declared or not. If a party's performance of its obligations under this agreement is affected by an event contemplated by this clause, that party must promptly give notice to the other party of the event and its anticipated duration and use its best endeavours to promptly restore itself to a position where it can perform its obligations
provided that nothing in this clause will require a party to settle an industrial dispute with its employees.
Before resorting to litigation to resolve any dispute between the parties, the parties agree to allow a period of 14 days to elapse and, within that 14 day period, to hold good faith negotiations with a view to endeavouring to resolve that dispute.
15.1 Save for defined terms in this Agreement, capitalised expressions set out in this clause bear the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
15.2 Except where express provision is made to the contrary, and subject to this clause, any amount that may be payable under this Agreement is exclusive of any GST.
15.3 If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply, A party's right to payment under this clause is subject to a valid Tax Invoice being delivered to the Recipient of the Taxable Supply.
16.1 Agreement means these Terms and Conditions, and the correspondence where the Royals agrees to perform the Services, this may include emails or formal proposal.
16.2 CCA means the Competition and Consumer Act 2010 (Cth).
16.3 Consequential Loss means loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings; loss or denial of opportunity and any other loss, damage or costs incurred by a party or any other person that is indirect or consequential.
16.4 Consumer has the meaning given to it in the CCA.
16.5 Developed IP means all Intellectual Property Rights created or developed by Royals or any of its Representatives as a result of meeting the Client' requirements under this Agreement or otherwise in the course of providing the Services but does not include any rights arising from the general know how, skill and experience the Royals has obtained from its relationship with Client.
16.6 Early Termination Charges means the charges (if any) payable by the Client for terminating the Agreement before the end of the Minimum Term.
16.7 Fees means the Fees agreed in the Scope of Work.
16.8 Insolvency Event means the happening of any of these events:
(a) a party suspends payment of its debts generally, is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(b) a 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;
(c) a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
(d) a party goes bankrupt; or
(e) a party ceases, or threatens to cease, to carry on business.
16.9 Intellectual Property Rights includes industrial and intellectual property rights, whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know- how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trademarks and semi-conductor and circuit layout designs and domain names.
16.10 Loss means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (including any Consequential Loss).
16.11 Materials means any and all creative materials created or provided by the Royals as a result of providing the Services including without limitation drawings, sketches, creative concepts, raw materials, mock-ups, final artwork, finished executions, scripts and storyboards, regardless of whether or not such materials were selected for use or were ultimately used by the Client.
16.12 Minimum Term means any minimum term agreed during the Engagement
16.13 Pre-existing IP means any and all Intellectual Property Rights subsisting in any material that existed prior to this Agreement or created independently of it and includes any modifications or enhancements to it.
16.14 Proposal means a proposal that the Royals gives the Client.
16.15 Representatives means any of the Royals directors, employees, officers, agents, contractor or sub-contractors.
16.16 Scope of Work means the formal engagement by the Client of the Royals that sets out the work to be performed and may include emails or more formal document.
16.17 Services means the services the Royals agrees to supply to you.
16.18 Sundries means in addition to the Fees all sundry expenses, including GST, incurred by the Royals in providing the Services, including but not limited to:
(a) all photocopy, fax and similar charges including job related delivery, taxi and courier charges;
(b) all travel expenses incurred in the provision of the Services; and
(c) any external Royalss' costs + 10%.
If there are any sundry expense to be incurred that are unusual, the Royals will seek approval from the Client before incurring the expense.