Terms and Conditions - Two Fish Strategies
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Terms and Conditions

By placing an order with Cose Creative (ABN 61 103 357 097) (we, us, our, and ours), you acknowledge that you have read and understood these Terms and Conditions, the Order Form and any Additional Terms (“Agreement”) and agree to be bound by them and that you have the authority to act on behalf of any person or entity for whom you are acquiring the Services (“Client”, you, your and yours).

 

1.         Term

  • This Agreement commences on the Start Date and will remain in effect for the Term, or until this Agreement is terminated earlier by either party.

 

2.         Services

2.1            We will:

  • provide the Services and Deliverables with reasonable skill, care and diligence;
  • comply with all relevant laws and regulatory requirements; and
  • comply with all reasonable requirements of the Client.

2.2            You acknowledge and agree that we may appoint (or change) a subcontractor to provide all or any of the Services.

 

3.         Fees and Payment

3.1            You agree to pay us, without any set-off or deduction, the amount of Fees and Disbursements in consideration of the Services and Deliverables. Unless otherwise indicated, all Fees are exclusive of all applicable taxes and charges. You will be liable for all sales, GST or any other tax, charge or government impost upon or in connection with the supply of the Services. If you choose to make any payment to us by credit card, you are liable to pay a credit card surcharge of 2.6% for each payment made by credit card.

3.2            We require all estimated Disbursements and 50% of the Fees to paid to us before the Start Date unless otherwise agreed by the parties in writing. We reserve the right to suspend any Services if we have not received the required payment in accordance with this clause.

3.3            We will charge you for services that are outside the scope of the Services and Deliverables specified in the Order Form (“Additional Services”) at the prescribed Hourly Rate.

3.4            We will make commercially reasonable endeavours to give you an estimated cost for the Additional Services (“Additional Fees”) and obtain your approval for the Additional Fees before commencing any Additional Services.

3.5            We will provide a reconciliation invoice within 5 Business Days after the completion of all Services. Unless the parties otherwise agree in writing, you will pay us the balance owing as set out in the reconciliation invoice within 5 Business Days from the receipt of the invoice.

3.6            In the event that you dispute any item on an invoice, you must first pay the whole of the invoice including the disputed balance within the time specified on the invoice. We agree to refund you any amounts overcharged after the dispute is resolved.

3.7            An Interest Rate will be charged on any outstanding balance which is not paid in cleared funds to us by the due date of any invoice.

3.8            If you pay via Stripe, any credit card fees charged by Stripe in relation to those payments shall be payable by you directly to Stripe.

 

4.         Changes and Cancellations

4.1            You may, after the execution of this Agreement or the commencement of the Services, request us to extend, increase, vary, delete, cancel or otherwise alter the Services and Deliverables specified in the Order Form by giving us 30 days’ notice in writing.

4.2            The Additional Services resulting from your variation pursuant to clause 4.1 will be charged in accordance with clause

4.3            In the event of any cancellation or reduction in the Services and Deliverables, you acknowledge and agree that we are entitled to recover from you the higher of:

  • 50% of the Fees for the Services and Deliverables that have been cancelled or amended in the 30 days’ notice period; and
  • Any reasonable charges or expenses to which we are committed or have incurred.

For the avoidance of doubt, any Disbursements that have been committed prior to the Client’s cancellation and reduction are not refundable.

 

5.         Client’s Obligations

5.1            You must:

  • comply with your obligations under this Agreement and any relevant Order Form;
  • accept the Services and Deliverables on the terms set out in this Agreement;
  • provide Client Content in a form that is suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise agreed by the parties in writing;
  • give us, in a timely fashion, all necessary assistance and make all necessary arrangements to enable us to provide the Services;
  • provide us, in a timely fashion, all documents, consents, and other information reasonably required by us in order to carry out the Services; and
  • warrant that all information and materials comprising Client Content are accurate, legal and conform to applicable standards in the Client’s industry.

 

6.         Acceptance

6.1            We will make commercially reasonable efforts to make all necessary corrections prior to providing the Services and Deliverables to you.

6.2            You must, within 5 Business Days of receipt of the Services and Deliverables, inform us in writing of any failure of such Services and Deliverables to comply with the specifications set forth in the Order Form, or any objections, corrections, changes or amendments you wish to make to such Services and Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction, change or amendment. In the absence of such notice, the Services and Deliverables shall be deemed accepted.

 

7.         Intellectual Property

7.1            Upon full payment by you for all Fees and Disbursements due to us, we assign to you all Intellectual Property Rights in the Services and Deliverables subject to this Clause 7.

7.2            Intellectual Property Rights in Third Party Right Materials shall be owned by the respective third parties. We will inform you of all Third Party Materials to be procured by us that you may need to license at your own expense.

7.3            Client Content, including any pre-existing Intellectual Property, shall remain the sole property of the Client. The Client hereby grants us a non-exclusive, non-transferable licence to use, reproduce, modify, display and publish the Client Content for the sole purpose of providing the Services and Deliverables in this Agreement.

7.4            Subject to the Terms and Conditions of this Agreement, you grant us a royalty-free, non-transferable, non-assignable right to use your name and trade mark (if applicable) and the Deliverables for self-promotional purposes in marketing and advertising activities.

 

8.         Confidential Information

8.1            Each party (Receiving Party) acknowledges that the Confidential Information of the other party (Disclosing Party) is valuable to that other party and undertakes to keep the Confidential Information of that other party, and this Agreement and its contents, secure and secret and not to disclose it except:

  • to the extent required to perform this Agreement;
  • to its professional advisers in connection with this Agreement; or
  • if required to do so by law.

8.2            Exemptions. The restrictions and obligations in this clause shall not apply to the Disclosing Party’s Confidential Information, which:

  • is or has become generally available to the public other than as a result of a disclosure by the Receiving Party (or its representatives);
  • was received by the Receiving Party from a third party and not indirectly from the Disclosing Party in violation of any obligation of secrecy or non-use;
  • was in the possession of the Receiving Party prior to disclosure; or
  • is developed independently from such Confidential Information, as is shown by competent evidence.

 

9.         Termination

9.1            This Agreement will remain in force in relation to an Order Form which does not expire or is not terminated. This Agreement will terminate in relation to that Order Form upon the expiry or termination of that Order Form.

9.2            Termination for default

If one party defaults in the performance of any material obligation under this Agreement or an Order Form and:

  • the default is capable of being remedied, and, within 10 Business Days of notice being given by the non-defaulting party specifying the default, the default is not remedied; or
  • the default is not capable of being remedied,

the non-defaulting party may by written notice, and at its sole discretion, immediately terminate, or temporarily suspend this Agreement or the operation of all or part of the Order Form to which the default relates.

9.3            Termination for insolvency

A party may terminate this Agreement immediately by giving written notice to the other party in the event that the other party is (or is held by a court to be) insolvent or unable to pay its debts as they fall due, or is placed into liquidation or receivership.

9.4            Accrued rights

The termination of this Agreement does not affect any accrued right or remedy of either party in relation to the Agreement or an applicable Order Form up to the date of termination. We are entitled to recover from you any reasonable costs incurred for performing our obligations under this Agreement prior to the termination.

 

10.        Limitation

10.1          The Services and Deliverables are provided to the Client “as is”. In all circumstances, our maximum liability to the Client in connection with this Agreement is to use our reasonable efforts to provide the Services and Deliverables or resupply the Services and Deliverables or pay the cost thereof at our sole discretion. In no event will we be liable for any other claims or damages including, but not limited to, claims for negligent or misleading representations or advice, damages arising from the loss or use of the Services and Deliverables, and any indirect, special or consequential damages or injury to any person (including personal injury), corporation or other entity.

10.2          If any Services supplied pursuant to this Agreement are provided to the Client as a ‘consumer’ of goods or services within the meaning of that term in the Competition and Consumer Act 2010 (Cth) (“CCA”), the Client will have the benefit of certain non-excludable rights and remedies in respect of the Services and nothing in these Terms and Conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the CCA is so conferred. However, if the Services are of a kind not ordinarily acquired for personal, domestic or household use, or consumption pursuant to the CCA, our liability is limited to:

  • the resupply of the Services and Deliverables; or
  • the payment of the cost of having the Services and Deliverables supplied again.

 

11.        Indemnification

11.1          You agree to indemnify us, against any liability and any direct loss or damage arising out of or in connection with:

  • any acts or omissions, whether or not the acts or omissions are in tort (including negligence), contract or otherwise in relation to this Agreement; or
  • any breach of the warranties and obligations under this Agreement,

except to the extent that we have contributed to the liability or loss or damage.

 

12.        Amendment

We periodically review this Agreement and reserve the right to change the Agreement, without any notice to you. You should review this Agreement, as available on the Website, regularly as any changes to the Agreement take immediate effect from the date of the publication.

 

13.        Force Majeure

13.1          Neither party shall be liable for any losses or damages, and shall be excused from any delay or failure in performance hereunder, caused by any labour dispute or distribution, governmental order or requirements, acts of god, casualty, inability to secure materials and transportation facilities, wars and other civil disturbances, and other circumstances beyond its control including the failure of its supplier(s) and / or subcontractors to perform.

13.2          If circumstances outside a party’s reasonable control render that party unable to carry out its obligations under this Agreement for more than 30 days, the other party may terminate this Agreement immediately by giving a written notice.

 

14.        Privacy

14.1          All personal information supplied to us by you is held in accordance with our Privacy Policy{link} which forms part of these terms and conditions.

 

15.        Electronic Execution

15.1          The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.

15.2          A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required by law to be physically delivered.

 

16.        Notice

16.1          Any notices to be given under this Agreement must be in writing and signed for and on behalf of the party giving such notice.

16.2          A notice under this Agreement is only effective if it is given:

(a)             by hand;

(b)            by prepaid mail; or

(c)             by email,

to the address of the Party specified in writing in accordance with this clause.

16.3          A notice sent for the purposes of this clause will be considered received:

(a)             if delivered by hand, before 5.00 pm on that Business Day;

(b)            if sent by pre-paid mail, on the third Business Day after posting; or

(c)             if emailed, on the date and time recorded on the device from which the party sent the email, unless the sending party receives an automated message that the email has not been delivered,

except that a delivery by hand, mail or email received after 5:00pm (local time of the receiving Party) will be deemed to be given on the next Business Day.

 

17.        Dispute Resolution

17.1          Except where a party seeks urgent interlocutory relief, if a dispute arises in relation to the rights and obligations of the parties under this Agreement (“Dispute”), the parties must allow the procedures set out in this clause before escalating the Dispute to litigation or arbitration.

17.2          The dispute resolution procedures in this clause will arise upon a party notifying the other parties in writing providing reasonable details as to the existence and nature of the Dispute and setting out the reasons for its dissatisfaction or claim of breach of the Agreement (“Dispute Notice”).

17.3          The parties must use their best endeavours to settle the Dispute within 10 Business Days after service and receipt of a Dispute Notice. If the Dispute remains unresolved after this time, the respective parties must authorise a person or persons holding the required level of authority to meet within 5 Business Days to attempt to resolve the Dispute.

17.4          If the Dispute remains unresolved after the procedures in clauses 16.1, 16.2 and 16.3 have been completed, the parties agree to use their best endeavours to settle the Dispute by mediation administered by a mediator accredited by the Resolution Institute (unless each party agrees otherwise) on the following basis:

(a)             the parties must use their best endeavours to agree on the appointment of a mediator within 5 Business Days, failing which the parties agree to the President of the Law Society of New South Wales appointing a mediator;

(b)            the costs of the mediation and the mediator will be split equally between the parties to the Dispute;

(c)             the parties must conduct the mediation as expeditiously as possible; and

(d)            the mediation will be held in Sydney in accordance with the laws governing this Agreement.

 

18.        Severability

If any provision of this Agreement is for any reason found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall continue in full force and effect.

 

19.        Governing Law

19.1          This Agreement is governed and construed by the laws of New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, and courts of appeal from them.

 

20.        Relationship

20.1          The Parties acknowledge and agree that we are acting as an independent contractor in providing the Services and that this Agreement does not create any employment relationship, partnership, or other joint venture or enterprise between us and you.

 

21.        Definitions

In this agreement:

Additional Terms mean the special terms agreed upon by the parties as specified in the Order Form;

Business Day means any day that is not a Saturday, Sunday or public holiday in Sydney;

  • Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by the Client for use in preparation of and/or incorporation in the Deliverables;
  • Confidential Information means any information of a confidential or proprietary nature, whether of commercial, financial or technical nature, customer, contractor, product or production-related or otherwise, including samples, information relating to specifications, software, process designs, process models, materials and ideas. Such information may be disclosed in any form, provided that it is disclosed reasonably in connection with this Agreement;

Deliverables mean any work and documentation that are set out in the Oder Form to be delivered to the Client;

Disbursements mean any expenses incurred by us on behalf of the Client in connection with this Agreement;

Fees mean the amount that you must pay to us for the Services as specified in the Order Form;

Hourly Rate means our hourly fees for Additional Services as set out in the Order Form;

Intellectual Property Right means the proprietary and moral rights in any intellectual property created, discovered, or coming into existence as a result of, or otherwise received from us for the purposes of or in connection with the provision of Services or this Agreement;

Interest Rate means the rate of 4% over the published base rate charged by Commonwealth Bank of Australia to corporate customers from time to time in respect of overdraft loans in excess of $100,000, calculated daily;

Order Form means the services order form signed by you with us;

Related Entities and Related Bodies Corporate have the meaning ascribed to them in Section 50 of the Corporations Act 2001;

Services mean the services to be provided by us to you which are set out in the Order Form;

Start Date means the date when the Agreement commences as specified in the Order Form;

Term means the period during which the Agreement is in force as specified in the Order Form;

Website means twfishstrategies.com.au and twofishdesign.com.au.

 

22.        Interpretation

In this Agreement, unless the context otherwise requires:

  • reference to legislation includes any amendment to it, any legislation substituted for it, and any statutory instruments issued under it and in force;
  • reference to a person includes a corporation, a firm and any other entity;
  • reference to a party includes that party’s personal representatives, successors and permitted assigns;
  • if a party comprises more than one person, each of those persons is jointly and severally liable under this agreement;
  • headings do not affect interpretation;
  • a provision must not be construed against a party only because that party puts the provision forward; and
  • a provision must be read down to the extent necessary to be valid; if it cannot be read down to that extent, it must be severed.