“Agreement” means these terms and conditions (T&C) and, where a Proposal is issued to you, the Proposal or, in the absence of a Proposal, as otherwise agreed in writing between the Parties.
“Client Background IP” means Intellectual Property Rights owned by, or licensed to, You by third parties (including know-how and technical information) which exists prior to the date of this Agreement, but does not include Designer Background IP or Project IP.
“Confidential Information” means:
information (whether in oral, written, electronic or any other form) disclosed by a party in connection with this Agreement which relates to the businesses, affairs, processes, know-how or operations of that party that:
is by its nature confidential; or
ought reasonably be considered to be confidential; or
is designated or marked by that party as confidential; or
relates to the personal information of that party or its employees; and
the terms of this Agreement, but excluding information that is in the public domain at the time of disclosure, or which becomes generally and publicly available after such disclosure except by reason of breach of this Agreement.
“Designer Background IP” means Intellectual Property Rights owned by, or licensed to, Us (including know-how and technical information) which exists prior to the date of this Agreement but does not include Client Background IP or Project IP.
“Expenses” means all reasonable expenses incurred by Us in connection with this Agreement and/or the provision of the Services.
“Fees” means the fees We will charge You for provision of the Services pursuant to this Agreement which shall be set out in the Proposal, (or, in the absence of a Proposal, otherwise agreed in writing), which may be varied by Us pursuant to clause 5.
“Insolvency Event” means in respect of a Party:
the board of the party passes a resolution under section 436A of the Corporations Act 2001 (Cth);
the party is placed into administration pursuant to Part 5.3A of the Corporations Act 2001 (Cth);
a deed of company arrangement is entered in respect of the party;
an application is made to a court for the winding up of the party;
the party resolves that it be wound up voluntarily;
a winding up order is made in respect of the party;
a receiver or receiver and manager is appointed to any substantial assets of the party;
a court orders that there be a meeting of creditors or members of the party for any purpose related to Part 5.1 of the Corporations Act 2001 (Cth);
a mortgagee takes possession of any substantial assets of the party;
the party stops or suspends payment of its debts generally; or
the party 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).
“Intellectual Property Rights” includes Moral Rights together with the protected rights attaching to inventions, patents, designs, trademarks, copyright, circuit layouts and confidential information whether or not now existing and whether or not registered or registrable and including any right to apply for the registration of such rights and includes all renewals and extensions.
“Moral Rights” means rights of integrity, attribution and other rights of an analogous nature which now exist or which may exist in the future including, without limitation, moral rights under Part IX of the Copyright Act 1968 (Cth).
“Party” means a party to this Agreement.
“Project IP” means Intellectual Property Rights discovered or coming into existence as a result of, for the purpose of or in connection with the performance of the Services in accordance with this Agreement but does not include Client Background IP or Designer Background IP
“Proposal” means Our letter of proposal setting out key terms relating to the Services to be provided by Us to You.
“Services” means the services to be provided by Us to You as set out in the Proposal or, in the absence of a Proposal, as otherwise agreed between the Parties.
“Us”, “Our”, “We” or “Whistle” means Whistle Design Group Pty Ltd.
“You”, “Your” or “Client” means the person or entity identified in the Proposal or, in the absence of a Proposal, the Party to whom We agree to provide the Services.
This Agreement applies to all supplies of services by Us to You, is the entire agreement between the Parties and supersedes all previous agreements, understandings, negotiations and representations (whether written or oral) other than the Proposal.
No variation or waiver of this Agreement and no terms and conditions put forward by You or printed on Your purchase order or other document You give to Us relating to the supply of services will have any effect unless expressly agreed in writing by both Parties.
If anything in these T&C is inconsistent with the Proposal, the Proposal shall take precedence.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be read down to the extent necessary and reasonable to ensure that it is not invalid, illegal or unenforceable. If it or part of it cannot be so read down, it or the relevant part of it will be void and severable and the remaining provisions will not in any way be effected or impaired.
All warranties, releases and exclusions of liabilities and indemnities shall remain valid and binding following termination of the Agreement.
A rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it.
If You consist of two or more persons or entities, each of You is jointly and severally liable for all obligations and liabilities under this Agreement.
You may accept this Agreement by writing to us indicating your acceptance, by returning a signed copy of the Proposal, by continuing to give us instructions after receiving a copy of the Proposal (noting You have access via our website to these T&C) or, by paying for or by using any part of the Services.
In consideration of you paying us the Fees, we will perform the Services with reasonable skill and care consistent with the accepted normal standards of the practice of design and otherwise on the terms and conditions of this Agreement.
We will not knowingly breach any third party Intellectual Property Rights, provided that you hereby acknowledge that we will not, (unless instructed to do so at Your cost), conduct any patent searches or other intellectual property rights searches.
Other consultants, contractors or suppliers
If another consultant, supplier or contractor is appointed by You in connection with the Services, We accept no liability for that person’s work. Our responsibility will be restricted to directing and integrating their Services to the extent reasonably requested by You and set out in the Proposal or otherwise agreed in writing.
You shall be responsible for the remuneration of all consultants, suppliers or contractors engaged by You.
to provide Us promptly with all information, instructions and access to employees, officers and third parties We reasonably require to perform the Services;
to ensure that information provided to Us is accurate, complete and not misleading. (We will rely on this information to perform Services and will not verify it in any way, except to the extent We have expressly agreed to do so as part of the Services);
to alert Us to changes to information provided to Us;
to ensure that We are permitted to use any third party information or Intellectual Property Rights You provide and/or require Us to use to perform the Services;
to make decisions as expeditiously as necessary for the orderly progress of Our delivery of the Services;
not to instruct or enter into any agreement with any contractor or supplier in relation to provision of the Services or in any capacity which may impact upon Our provision of the Services, without previous consultation with us;
to ensure that all relevant safety standards and other product requirements are complied with in relation to all products resulting from or related to the Services;
to ensure that you own or have the right to use any Client Background IP and that any use by Us of any Client Background IP in accordance with this Agreement will not breach any third party Intellectual Property Rights; and
to Perform Your obligations under this Agreement in a timely and professional manner (acknowledging that Our performance depends on this), including but not limited to payment of all Fees and Expenses.
The Services and Fees will be clearly described in the Proposal or, in the absence of a Proposal, as set out in writing and agreed between the Parties.
You may request variations to the Services at any time. However, We are not obliged to agree to such variations and any agreement may be conditional. In particular but without limitation, We reserve the right to vary our Fees and the timeline for delivery of the Services if you request a variation to the Services.
The terms and conditions set out herein and in the Proposal (or as otherwise agreed between the Parties) including, but not limited to, the Services and the Fees, may be varied by agreement in writing between the Parties at any time.
If agreement cannot be reached about a requested variation within 14 days of the request, we shall suspend all work and invoice you the Fees and Expenses for the work completed to the date of suspension. You must pay such invoice within 14 days.
FEES & EXPENSES
Invoices and payment
Unless otherwise agreed, We will invoice You for Our Fees and Expenses (refer to clause 5.2 below) on a monthly basis.
All invoices must be paid by You within 14 days of the invoice date, unless otherwise specified in the Proposal.
In addition to the Fees, We shall be entitled to be reimbursed for all Expenses, plus applicable GST.
Expenses may include but are not limited to:
Printing, reproduction, purchase, postage or courier of all documents, drawings, models, photographs and other records.
Travel expenses including taxis, flights, accommodation and visas.
Long distance and mobile telephone calls, etc.
Provision of services by third party contractors including in relation to photography, model/prototype making, statutory authority fees, detailed surveys/ measurement and data processing costs.
We reserve the right to:
charge interest on outstanding invoices at a rate equal to 2% above the rate set by the Penalty Interest Rate Act (Vic) 1983 from time to time; and
suspend provision of the Services until any unpaid invoices have been paid in full, including interest.
Except where expressly stated otherwise, all amounts referred to in this Agreement are exclusive of GST. Where Services supplied by Us are subject to GST, We are entitled to increase the amount payable for the Services by the amount of any applicable GST.
Subject to clauses 6.4, 6.5, 6.6, 6.7, 6.8 and 6.9, We will be liable to You for any reasonably foreseeable loss or damage that You may suffer or sustain arising from a breach by Us of Our obligations under this Agreement.
You hereby release Us from any claims for all liability relating to draft designs or any oral statements or representations made by Us. If You wish to rely on something We have told You, please let Us know so that We can prepare a written deliverable on which You may rely.
The Australian Consumer Law (embodied in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (ACL) requires that certain guarantees must be given by Us in relation to the supply of goods or services to consumers (Consumer Guarantees). Nothing in this Agreement is intended to exclude, restrict or modify the application of Consumer Guarantees, the exercise of a right conferred by a Consumer Guarantee or our liability for a failure to comply with a Consumer Guarantee.
Exclusion of Implied Conditions and Warranties
To the full extent permitted by law and subject to clause 6.3, all conditions and warranties which would otherwise be implied in this Agreement (by statute, general law, customs or otherwise) are expressly excluded.
To the extent permitted by law, We exclude all liability whether in contract, tort, under statute or otherwise and whatever the cause, for any indirect or consequential loss, damage, cost or expense suffered or incurred by You and arising out of this Agreement even if You have advised Us of the possibility, including with respect to any potential loss of business profits, revenue, opportunity, goodwill or anticipatory profits, business interruption and loss or corruption of data that may be incurred by You.
Limitation of Liability
Our liability to You will be:
reduced to the extent that Your loss is caused or contributed to by:
any action taken by Us in accordance with Your directions;
any incorrect, erroneous or misleading information You provide to Us and on which We rely (including, but not limited to, measurements taken by you);
any breach by You of this Agreement;
Your failure to take reasonable steps to mitigate any potential loss; and
limited to an amount equal to the Fees (GST exclusive) paid by You to Us for the Services.
No claims against employees
This Agreement is between You and Us. You agree not to bring any claim (including in contract, tort, under statute or otherwise) against any of Our directors, officers or employees (Personnel) personally in connection with this Agreement or the Services. You agree and acknowledge that this clause is for the benefit of Our Personnel and that each of Our Personnel may rely on this clause 6.6 as if they were a party to this Agreement.
Notwithstanding clause 8, You agree and acknowledge that:
in the course of providing the Services, We will transmit information (including Confidential Information) electronically and store information (including Confidential Information) in the ‘cloud’ and/or other locations outside our direct control (e.g. on servers or databases co-located with hosting providers); and
We will not be liable for any loss You suffer arising from or in relation to any unauthorised access by third parties to information (including Confidential Information) held, stored or transmitted to or by Us or on our behalf.
Duration of Liability
You agree and acknowledge that We shall be discharged from all liability in connection with this Agreement and the Services, whether under the law of contract, tort, statute or otherwise, on the expiration of one year from the earliest of the date of completion of the Services, suspension of the Services or receipt of final payment of Fees and Expenses due pursuant to this Agreement. You (and persons claiming through or under You) shall not be entitled to commence any action or claim whatsoever against Us in respect of this Agreement or the Services after such date.
You will indemnify and hold us harmless against any loss or damage that We may suffer or sustain arising from:
a breach by You of your obligations under this Agreement;
a claim (howsoever and whensoever arising) by a third party in relation to any Intellectual Property Rights.
This Agreement will terminate upon completion of the Services and payment in full of all associated Fees and Expenses (unless terminated earlier pursuant to the terms of this Agreement).
Either Party may terminate this Agreement for any reason by providing the other Party with 14 days written notice.
This Agreement may be terminated immediately by a Party if the other Party:
is the subject of an Insolvency Event; or
breaches any of its material responsibilities or obligations under this Agreement, which breach is either not capable of remedy or not remedied within fourteen (14) days from receipt of written notice of such breach.
Upon expiration or termination of this Agreement:
We will issue an invoice for all Fees and Expenses accrued but unpaid to the date of expiration or termination, as the case may be;
You must pay all outstanding invoices within 14 days of the date of the invoice; and
each Party shall return or destroy the Confidential Information of the other Party.
Clauses 5, 6, 8 and 9 continue to operate after termination or expiry of this Agreement.
Any royalty agreement within the Proposal continues to operate, according to the terms of the royalty agreement, after termination or expiry of this Agreement.
Each Party undertakes to keep the terms of this Agreement and the other party’s Confidential Information confidential, provided that nothing in this paragraph shall prevent:
a Party from disclosing any information on a confidential or privileged basis to that Party’s professional advisers who are under an appropriate burden of confidentiality (on the same terms as those set out in this Agreement);
a Party from disclosing any information to a Party’s officers or employees who need to know the information for the purpose of performing that Party’s obligations under this Agreement and who are under an appropriate burden of confidentiality (on the same terms as those set out in this Agreement); or
Whistle from referring to You and the nature of the Services it has performed for You (in a generic sense) when marketing its business.
INTELLECTUAL PROPERTY RIGHTS
We acknowledge and agree that all Client Background IP is and will at all times remain the exclusive property of the Client (whether as owner or licensee) and We shall have no right, title or interest to or in the Client Background IP or any right to use it except as provided for in this Agreement.
You hereby give Us a license to reproduce, modify and use the Client Background IP for the purpose of providing the Services and otherwise complying with Our obligations under this Agreement.
You acknowledge and agree that all Designer Background IP and Project IP is and will at all times remain the exclusive property of Whistle (whether as owner or licensee) and You shall have no right, title or interest to or in the Designer Background IP and Project IP or any right to use it except as provided for in this Agreement.
You must not:
do anything which may prejudice or affect Our ownership or interest in the Designer Background IP or Project IP; or
use any of the Designer Background IP and Project IP except with Our prior written consent (which may be given or withheld in Our absolute discretion).
Upon payment in full of all Fees and Expenses, We agree (subject to any terms to the contrary in the Proposal), to give You a non-exclusive, non-transferable, royalty-free licence to reproduce and use the Project IP for Your business purposes.
You agree to provide all reasonable assistance We may request to protect the Designer Background IP and Project IP.
You agree to indemnify and hold Us harmless against any damage or loss suffered and any cost or expense incurred by Us in respect of any infringement (or alleged infringement) of the Intellectual Property Rights of any third party.
You must not, during the term of this Agreement or for a period of twelve (12) months after the expiry or termination of this Agreement, solicit, canvass or secure the employment of any person who is, or was during the previous twelve (12) month period, an officer or employee of Us.
We shall not be deemed in breach of this Agreement if We are unable to complete the Services or any portion thereof by reason of any event which is beyond Our reasonable control and which could not have been prevented through the exercise of reasonable care and diligence, including without limitation any fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of any of Our directors, officers, employees or contractors or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Our control (each a, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, We shall give You notice of Our inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Failure or delay by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
You may not assign, transfer or novate Your rights or obligations under this Agreement without Our prior written consent.
All notices to be served pursuant to this Agreement may be served by facsimile, personally or sent by registered post to the address of that Party stated in this Agreement or otherwise notified by a Party as the address for service. Notices that are posted shall be deemed to have been given two (2) days after the date of posting. If sent by facsimile, notices will be deemed to have been given if the sender’s facsimile generates a message confirming successful transmission of the total number of pages of the notice on the day of transmission if a business day or otherwise on the next business day.
This Agreement will be governed by the laws of Victoria, Australia and You agree to submit to the exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia.