Terms & Conditions - surface pattern design

BACKGROUND

A. The Client wishes to receive surface pattern design services (Services).

B. Sarah Green Design has the skills, background and experience to provide the Services.

C. Sarah Green Design is willing to provide the Services and the Client is willing to appoint Sarah Green Design to provide the Services, all in accordance with the provisions of this agreement.

OPERATIVE PROVISIONS

1 Definitions and interpretation

In this agreement unless the context indicates otherwise, the following words have the following meanings.

Category of Goods means the category of goods that are specified in the schedule to this agreement.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Commencement Date has the meaning set out in the schedule to this agreement.

Confidential Information includes any information received by the receiving party during the term of this agreement, which is not publicly available and relates to any staff, agents or clients of the disclosing party or any processes, equipment and techniques used in the course of business of the disclosing party. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data, models, articles, reports and materials; marketing information such as customer lists, financial information and business plans; sales materials, including but not limited to all quality management methods, pricing methods, sales methods and customers' materials; all the intellectual property rights (including those exclusively owned by either party, whether owned now or developed in the future); and any other information that either party claims as confidential.

Date of Expiry means the date the Licence Period ends, or the agreement is terminated, as permitted under the terms of this agreement.

Deliverables means the deliverables to be provided to the Client, as specified in the schedule to this agreement.

Fee the amount to be paid by the Client to Sarah Green Design under this agreement, as set out in the schedule to this agreement.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.

Licence Period means the duration of the licence granted to the Client, as set out in the schedule to this agreement.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Moral Rights means rights of integrity, rights of attribution and rights of an analogous nature which may now exist and which may exist in the future in respect of the licensed property under the Copyright Act 1968 (Cth) or under the law of a country other than Australia.

Parties means Sarah Green Design and the Client, and Party means either one of them.

Personnel means Sarah Green or any other officers, employees or agents of Sarah Green Design that Sarah Green Design designates to perform the Services on Sarah Green Design’s behalf.

Services means the services to be provided by Sarah Green Design under this agreement.

Specification means the details of the Services to be provided under this agreement, as set out in the schedule to this agreement.

Term means the duration of this agreement, beginning on the Commencement Date and ending on the Date of Expiry of this agreement.

Termination Date means the earlier of:

(a) the date of termination of this agreement by the Client or Sarah Green Design; and

(b) the Date of Expiry of this agreement.

2 Services

(a) In consideration for the Client paying the Fee to Sarah Green Design, Sarah Green Design will provide the Services, as set out in the Specification.

(b) Any additional work carried out outside of the scope of the Specification will incur an additional charge. This additional charge will be quoted by Sarah Green Design for approval before commencing the additional work.

(c) The Services will be performed by whichever Personnel Sarah Green Design may choose as most appropriate to carry out the Services from time to time.

3 Time and place

(a) Sarah Green Design and the Client will agree on mutually convenient timing and location for the performance of the Services, subject to the availability of Sarah Green Design’s Personnel.

(b) Sarah Green Design will provide any Deliverables outlined in the Specification:

(i) via email, Dropbox, or other means suitable to the format of the Deliverable and mutually agreed upon between the Parties; and

(ii) via any file format reasonably agreed upon between the Parties.

(c) The Client should provide all information, documentation and instructions in writing via email to hello@sarahgreen.com.au, or any alternative email address provided to the Client by Sarah Green Design, from time to time.

(d) The Client acknowledges and agrees that Sarah Green Design will respond to email communication sent by the Client in accordance with this agreement within 3 business days.

4 Fee

4.1 Payment of Fee

(a) In full and final consideration of the provision of the Deliverables, in accordance with this agreement, the Client will pay Sarah Green Design the Fee.

(b) The Client acknowledges that the Fee is inclusive of any GST.

(c) The Deposit is non-refundable except in circumstances where Sarah Green Design cannot perform the agreement for any reason.

4.2 Variation of Fee

Sarah Green Design is entitled to vary the Fee during the term of this agreement with written notice to the Client of 14 days prior to the change being implemented.

4.3 Failure to pay

If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, Sarah Green Design is entitled to do any or all of the following, without limitation to its other rights and remedies:

(a) charge interest on the outstanding amount at the rate of 5% per year, accruing daily;

(b) require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;

(d) not perform any further services (or any part of the Services);

(e) terminate the agreement; and

(f) add the cost of any debt collection fees to the invoiced amount.

4.4 Refunds

The Client acknowledges and agrees that, subject to the Australian Consumer Laws, Sarah Green Design does not provide any refunds.

5 Deliverables

(a) The Client agrees and acknowledges that it may only use the Deliverables:

(i) with respect to the Category of Goods and no other type of goods; and

(ii) for the Licence Period.

(b) Sarah Green Design agrees that the Deliverables will not be available for purchase, by any other person, for use with respect to the same Category of Goods. To avoid any doubt, the Client will have exclusive use of the Deliverables for the Category of Goods.

(c) In the event that the Client wishes to use the Deliverables in any category of goods that are not the Category of Goods, then the Client agrees that an additional fee will be charged to the Client, as agreed between the Parties.

6 Client’s obligations

(a) During the Term, the Client will, and where applicable will ensure that any of its staff and agents:

(i) co-operate with Sarah Green Design, and timely provide any information, documentation and instructions, as Sarah Green Design reasonably requires to perform the Services;

(ii) provide any written approvals required by Sarah Green Design at key points throughout the project prior to continuing to the next stage (and the Client acknowledges and agrees that it will be deemed to have provided approval in the event that it fails to provide written approval within 14 days); and

(iii) have and maintain a subscription to any third party software as agreed between the Parties.

7 No partnership, joint venture, agency or employment relationship

(a) Nothing in this agreement constitutes the relationship of employer and employee between the Client and Sarah Green Design or between the Client and Sarah Green Design’s Personnel.

(b) This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.

(c) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

(d) It is the express intention of the Parties that any such relationships are denied.

8 Disclosure and ownership of intellectual property

(a) The Client agrees and acknowledges that Sarah Green Design (or its associated entities or persons) will own all intellectual property rights in the Deliverables.

(b) Sarah Green Design grants the Client a perpetual, worldwide, royalty free, exclusive and transferrable licence, to use the Deliverables, with respect to the Category of Goods.

(d) The Client acknowledges and agrees that Sarah Green Design may:

(i) use the name and likeness of the Client and any part of the Deliverables for the advertising and promotion of Sarah Green Design; and

(ii) use any part of the Intellectual Property in the Deliverables for the future business activities of Sarah Green Design (including as part of the Deliverables for other clients of Sarah Green Design),

without compensation to the Client.

(e) Sarah Green Design will ensure that all Personnel consent to any breach of their Moral Rights and waive the rights sue for breach of their Moral Rights by the Client through use of the Deliverables in accordance with clause 8(d).

(f) Each party agrees to indemnify each other fully against all liabilities, costs and expenses which the other party may incur as a result of any breach of this clause 8.

(g) The obligations accepted by the parties under this clause 8 survive termination or expiry of this agreement.

9 Confidentiality

(a) Subject to clause 9(c), each party agrees to keep the other party’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

(b) The Client and Sarah Green Design acknowledge that information resulting from the activities of Sarah Green Design pursuant to this agreement will also be regarded as Confidential Information. The parties agree that their obligations in clause 9(a) extend to this category of information.

(c) The Client agrees that the Sarah Green Design may, from time to time, share testimonials and results achieved as a result of the Services for marketing purposes. The Client can request that personal and brand information be omitted from case studies and testimonials.

(d) The parties’ obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the disclosing party.

(e) At the Termination Date, or when earlier directed by the disclosing party:

(i) all Confidential Information must be returned to the disclosing party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the receiving party makes and any software that the receiving party creates based on the Confidential Information; and

(ii) the receiving party will erase and destroy any copies of any software containing or comprising the Confidential Information in its possession or under its control or that may have been loaded onto a computer in its possession or under its control.

(f) The Confidential Information does not include information which:

(i) is generally available in the public domain otherwise than as a result of a breach of clause 9(a) by the receiving party; or

(ii) was known by the receiving party prior to the disclosing party disclosing the information to the receiving party.

(g) Each party agrees that other party may require any of its staff of agents to sign a confidentiality agreement.

(h) Each party agrees to indemnify the other party fully against all liabilities, costs and expenses which that other party may incur as a result of any breach of this clause 9.

(i) Each party acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that the other party may obtain injunctive relief against any breach of this clause 9.

(j) The obligations accepted by the parties under this clause 9 survive termination or expiry of this agreement.

10 Warranties, liability and indemnities

10.1 Warranties

(a) Sarah Green Design warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry, sector or profession in which Sarah Green Design operates for the type of Services provided by Sarah Green Design.

(b) If Sarah Green Design performs the Services (or any part of the Services) negligently or materially in breach of this agreement, then, if requested by the Client, Sarah Green Design will re-perform the relevant part of the Services, subject to paragraphs 10.2(a) and 10.2(b) below.

(c) The Client’s request referred to in paragraph 10.1(b) must be made within 1 month of the date Sarah Green Design performed the Services (or that part of the Services) that Sarah Green Design is to re-perform.

(d) Sarah Green Design makes no warranty that the Deliverables do not breach any third party Intellectual Property rights.

(e) Sarah Green Design provides no warranty that any result or objective can or will be achieved or attained at all or by any date, whether stated in this agreement, the Schedule, the Specification or elsewhere.

(f) The Client understands and agrees that use of any Deliverables is at its own risk.

10.2 Limitation on liability

(a) Except in the case of death or personal injury caused by Sarah Green Design’s negligence, the liability of Sarah Green Design under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fee paid by the Client to Sarah Green Design under this agreement.

(b) Sarah Green Design is not liable to the Client for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client relating to any allegation of copyright infringement.

(c) Sarah Green Design is not liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

10.3 Indemnity

The Client must indemnify and hold Sarah Green Design harmless from and against all Claims and Losses arising from loss, damage, liability, injury to Sarah Green Design, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any content, information, documentation or instructions supplied by the Client to Sarah Green Design, or its Personnel, or use of any Deliverables by the Client.

10.4 Survival of obligations

The obligations accepted by Sarah Green Design and the Client under this clause 10 survive termination or expiry of this agreement.

11 Disputes

(a) If a dispute arises, before any proceeding is commenced the party claiming that a dispute has arisen must give 14 days’ notice to the other party setting out the dispute and seeking discussion and compromise to resolve the dispute.

(b) If after 14 days the dispute is not resolved then it must be referred to mediation on the same terms as those ordered by the Supreme Court of Western Australia and the costs of the mediation shall be borne by the parties equally.

(c) Notwithstanding the preceding provisions of this clause, Sarah Green Design must continue to provide the Services, the Client must continue to pay the Fee, and both parties must continue to perform their obligations under this agreement pending resolution of the dispute.

(d) Nothing in this clause will prevent either party from seeking urgent interlocutory relief.

12 Termination

(a) Either Party may terminate this agreement by written notice to the other if the Party notified:

(i) fails to observe any term of this agreement; and

(ii) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 30 days’ of written notice of the breach being given by the notifying Party to the other Party.

(b) Either Party may terminate this agreement upon the happening of any of the following events:

(i) if the Client enters into a deed of arrangement or an order is made for it to be wound up;

(ii) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or

(iii) if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

(c) The Client may, at its discretion, pay to Sarah Green Design the equivalent amount of the fees payable by the Client to Sarah Green Design during the notice period in lieu of any notice period relating to termination of this agreement under paragraph 12(a)(i).

(d) Upon termination of this agreement any fees, expenses or reimbursements payable by the Client to Sarah Green Design in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.

(e) Notice may be provided for the purposes of this agreement by:

(i) Postal to the address of the recipient (noting that it will be treated as having been received on the fifth business day after posting); or

(ii) Sending an email to the recipient’s nominated email address (noting that it will be treated as received when it enters the recipient’s information system).

13 General

13.1 Force majeure

(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.

(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

(c) If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.

13.2 Amendment

This agreement may only be amended in writing signed by duly authorised representatives of the Parties.

13.3 Assignment

(a) Subject to paragraph 13.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.

(b) A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.

13.4 Entire agreement

(a) This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.

(b) Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

13.5 Counterparts

This agreement may be executed electronically, in any number of counterparts which together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.

13.6 Waiver

(a) No failure or delay by Sarah Green Design in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

13.7 Further assurance

Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

13.8 Severance

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

13.9 Law and jurisdiction

This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Western Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Western Australia.

website Terms of use

Welcome to the Sarah Green Design website (the Website), which is owned and operated by Sarah-Jo Green trading as Sarah Green Design (A.B.N.30 147 159 253) (we, us, our, or Sarah Green Design).

Your access to the Website is conditional upon your acceptance and compliance with the terms, conditions, notices and disclaimers contained in this document (collectively known as Terms of Use). Your use of, and/or access to, the Website constitutes your agreement to the Terms of Use.

We reserve the right to amend the Terms of Use at any time.

Our services

We cannot be responsible for any delays or interruptions to the Website. We will use commercially reasonable efforts to minimise delays and interruptions. However, we cannot warrant that the Website will be available at all times or at any given time.

We may at any time and without notice to you, discontinue the Website in whole or in part. However, we cannot be responsible for any loss, cost, damage or liability that may result from our discontinuance of the Website.

Prohibited conduct

In relation to the Website, you must not:

use the Website for any activities, sales or post or transmit via the Website, any information or materials which breach any laws or regulations, infringe a third party’s rights, or are contrary to any relevant standard or codes;
use the Website to post or transmit any material which interferes with other users or defames, harasses, threatens, menaces, offends or restricts any person or which inhibits any user from using the Website or the Internet;
use the Website to send unsolicited email messages;
in any way tamper with, hinder or modify the Website;
knowingly transmit any viruses or other disabling features to the Website or via the Website; or
attempt any of the above acts or facilitate or assist another person to do any of the above acts.

Intellectual Property

The material on the Website, including the software, design, text, images and graphics comprised in the Website and the selection and layout of the Website are owned or under licence by Sarah Green Design and protected by Australian and international laws.

Your use of the Website does not grant you a licence or act as a right of use of any of the trade marks or logos, whether registered or unregistered, that are displayed on the Website without the express written permission of the trade mark owner.

We own the copyright, which subsists in all creative and literary works that are displayed on the Website.

You may view the Website and its contents using your web browser. In visiting the Website, you may make a temporary copy of the Website by means of the usual operation of your web browser only.

You must not:

reproduce or use any of the material on the Website for commercial purposes, including sale;
in any way modify the material on the Website; or
cause any of the material on the Website to be framed or embedded in another website.

In summary, you must not modify, copy, reproduce, republish, frame, upload to a third party, post, transmit or distribute the content of the Website in any way except as expressly provided for by us or expressly authorised in writing by us.

In the event that you do any of the above acts, we will not hesitate to enforce our intellectual property rights against you.

Third party links

The Website may contain hyperlinks and other pointers to websites operated by third parties (Linked Websites). We do not control Linked Websites and are therefore not responsible for the content of any Linked Website or any hyperlink contained in a Linked Website. We provide the hyperlinks for your convenience only and do not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of a Linked Website or the products or services offered at Linked Websites. You visit Linked Websites entirely at your own risk.

We do not provide any warranty or take any responsibility for any aspect of Linked Websites or their content. You should make your own investigations with respect to the suitability of goods and/or services offered to you via a Linked Website.

Indemnity

By using the Website, you agree to indemnify us from and against all actions, claims, suits, demands, damages, liabilities, costs or expenses (whether in tort or in contract including and without limitation, negligence) arising out of or in any way connected to the use of the Website by you.

Disclaimer

Some legislation such as the Australian Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations in other countries may confer you with rights and remedies relating to the provision of goods or services to you by us via the Website which cannot be excluded, restricted or modified (your Statutory Rights). We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

Except for your Statutory Rights and with respect to the Website:

all material on the Website is provided to you without warranties of any kind, either express or implied;
we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose;
we do not warrant that the functions contained in any material on the Website or your access to the Website will be uninterrupted or error free, that any defects will be corrected or that the Website or the server which stores and transmits material to you are free of viruses or any other harmful components; and
we do not warrant or make any representation regarding your access to, or the results of your access to, the Website including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

To the extent permitted by law, including but not limited to any act or omission on tour part, we will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special and/or consequential, including loss of profits, suffered by you or claims made against you which result from any use or access of, or any inability to use or access, the Website.

You expressly acknowledge that we do not exert control over users of the Internet and we are not liable for damage suffered by you, either directly or indirectly, as a result of your access to the Website.

Limitation of liability

To the extent permitted by law, our liability for breach of any implied warranty or condition, which cannot be excluded by the Terms of Use, is limited, at our option, to one or more of the following:

In the case of services supplied or offered by us:

the resupply of the services; or
the payment of the cost of having the services resupplied.

In the case of goods supplied or offered by us:

the replacement of the goods or the supply of equivalent goods;
the repair of such goods;
the payment of the costs of replacing the goods or acquiring equivalent goods; or
the payment of the costs of having the goods repaired.

Privacy

By agreeing to and accepting the Terms of Use, you also agree to our Privacy Policy.

Termination

The Terms of Use are effective until terminated by us, which we may do at any time and without notice to you. In the event of termination, all restrictions imposed on you by the Terms of Use and limitations of liability set out in the Terms of Use will survive.

Miscellaneous

We rely upon your continued observance of the Terms of Use. If we suffer loss or damage or incur any costs associated with any breach by you of the Terms of Use or any associated legal obligation, you agree to indemnify us for those losses, damages and costs.

We do not make any claims that the information is appropriate or may be downloaded in all areas, countries or jurisdictions. Access to the information contained in the Website may not be legal by certain persons or in certain countries. If you access the Website, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.

If any provision of the Terms of Use is found to be invalid or unenforceable by a Court of Law, such invalidity or unenforceability will not affect the remainder of the document, which will continue in full force and effect.

All rights not expressly granted in the Terms of Use are reserved.

If we do not act in relation to a breach of the Terms of Use by you, this does not waive our rights to act with respect to subsequent or similar breaches of the Terms of Use by you.

Applicable Law

The Terms of Use are governed by and construed in accordance with the laws of the State of Western Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of Western Australia and Courts of Appeal from them for determining any dispute concerning these Terms of Use.

Contact us

Please email us if you have any questions relating to these Terms of Use.

Terms of Use last updated on 13 October 2021.