TERMS AND CONDITIONS
The Services set out in your @MCRT.Studio Order are subject to these @MCRT.Studio Terms and Conditions (the “Agreement”), unless you have a signed @MCRT.Studio Services Agreement, in which case those terms and conditions apply instead. Please read the Agreement carefully. By proceeding with the Services you agree to be bound by the terms of this Agreement. @MCRT.Studio is the trading name of Maxim Chikanchi and Rozelle Tan (ABN 96 672 273 753) (the “Studio” or "@MCRT") and references to the “Customer” is a reference to you. The Customer or the Studio are each a “Party” and together the “Parties”.
AGREED TERMS
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement, unless the context indicates otherwise, the following expressions shall have the following meanings:
ABN: means an Australian Business Number;
Claim: means a claim made by any third party relating to an actual or alleged breach of a third party’s Intellectual Property Rights;
Commencement Date: means the date set out in the Order or the date on which the Studio starts providing Services, whichever is sooner;
Content: means the Customer’s data, emails, files, names, logos, text, artwork, video, audio and graphics;
Confidential Information: means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Studio or the time being confidential to the Studio and trade secrets including, without limitation, technical data and know-how relating to the business of the Studio or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, and including (but not limited to) information that the Customer creates, develops, receives or obtains in connection with the Agreement, whether or not such information (if in anything other than oral form) is marked confidential;
Fees: means the fees set out in your Order or if not in the Order then as otherwise agreed by the Parties;
Force Majeure Event: means an event or circumstance or cause beyond either Party's reasonable control, including acts of God or public enemies, civil war, insurrection or riot, fire, flood, acts of terrorism, explosion, earthquake or serious accident, change of law, failure of the Internet, pandemic, strike, labour trouble, shortage of raw materials, power or fuel, failures and delays in the banking or payment collections or payment transfer systems, any breakdown of plant or machinery, any failure of any computer software or hardware, or any failure in a communications network;
GST: means the Goods and Services Tax;
Intellectual Property Rights: means patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Moral Rights: means the moral rights created under the Copyright Act 1968 (Cth) and in other jurisdictions any similar applicable rights created by law;
Order: means the order of the Services by the Customer, whether by the Studios’ order form or in the absence of an order form as otherwise ordered;
Services: means the services as set out in the Order;
Term: means the period from the Commencement Date until the Completion Date specified in the Order, or if there is no completion date in the Order then upon completion of the Services;
Termination Date: means the date of termination of this Agreement, howsoever arising; and
Works: means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, artwork, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Studio in the provision of the Services.
1.2. The headings in this Agreement are inserted for convenience only and shall not affect its construction.
1.3. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. The Order forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Order. Should a conflict occur between this Agreement and the Order, the Parties agree that this Agreement will prevail to the extent of the conflict.
2. SERVICES
2.1. The Customer during the Term of the Agreement shall purchase the Services and the Studio shall perform the Services in line with the terms and conditions of this Agreement.
2.2. The Studio shall not be liable for any delay or failure in performance to the extent that such delay or failure is due to or arises from any Content being delayed or inappropriate and/or any act or omission of the Customer.
3. TERM
The Services shall commence on the Commencement Date and shall continue for the Term unless and until terminated as provided by the terms of this Agreement.
4. PAYMENT TERMS
4.1. Fees are payable as outlined in this Clause 4 and as further outlined in the Order. If there are no payment terms in the Order, then payment is due no later than 14 days after the Completion Date.
4.2. If the Customer fails to make any payment due to the Studio by the due date for payment, then, without limiting the Studio’s remedies: (a) The Customer shall pay interest on the overdue amount at the rate of four percent (4%) a year above the RBA’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and (b) the Studio may, without liability to the Customer, suspend the provision of the Services, and Studio shall be under no obligation to provide any the Services while the invoice(s) concerned remain unpaid.
4.3. All amounts included in invoices are net of tax. The Customer shall, in addition, pay to the Studio the amount of any tax, duty or assessment, including any applicable GST which the Studio is obliged to pay and/or collect from the Customer in respect of any Services provided under this Agreement (other than tax on the Studio’s income).
4.4. If the Customer makes any deductions or withholdings from the payments to the Studio due to legal requirements to do so, the Customer shall make any additional payment as necessary to ensure that the net payment to the Studio equals the amount due.
4.5. Each Party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this Agreement.
4.6. Where the Customer books the Services of the Studio for a prior agreed time(s) and date(s) and where the agreed location(s) for the performance of the Services during that time(s) and date(s) is not made accessible and/or prepared by the Customer for the Studio to enable the Studio to perform the Services without delay, then the Customer shall pay all the Studio’s travel expenses to and from the location(s) in addition to all costs associated with accessing and/or preparing the location(s) and/or arranging a new time(s) and date(s) for the performance of the Services. All expenses of the Studio under this clause shall be calculated by the Studio at the rate of sixty dollars ($60) per hour per person and are payable by the Customer within seven (7) days of reciept of invoice by the Customer from the Studio.
5. WARRANTIES
5.1. Subject to the limitations in this Agreement, the Studio warrants to the Customer that it has the capacity and authority to enter into and perform this Agreement.
5.2. Except as expressly provided in this Agreement, the Services are provided “as is” without warranty or representation of any kind either express or implied including without limitation any warranties of merchantability, quality, fitness for a particular purpose, title and non-infringement.
6. LIMITATIONS OF LIABILITY
6.1. Neither Party excludes or limits any liability to the other Party under this Agreement for: (a) any fraudulent representations made by it on which the other Party can be shown to have relied; and (b) any liability that may not otherwise be limited or excluded by law. Additionally, nothing in this Clause 6 shall limit or exclude the liability of Customer to pay the Fees due for Services under this Agreement.
6.2. Subject to Clause 6.1, the Studio shall not be liable to the Customer under this Agreement, whether in contract or in tort (including negligence or breach of statutory duty) or otherwise, for: (a) any loss of profit, loss of revenue, loss of contracts, loss of anticipated savings, loss of goodwill, loss of opportunity, loss of data, loss of reputation or loss of business, whether caused directly or indirectly; and (b) any special, indirect, punitive or consequential loss, cost, damages or expenses whatsoever, even (in each case) if any such loss or damage was reasonably foreseeable or the Customer had been advised of the possibility of such loss, cost damage or expense. The Parties agree that each of the heads of loss in sub-Clauses (a) and (b) above (inclusive) are separate terms and are intended to be severable.
6.3. The Studio shall not be liable for any delay or failure in performance to the extent that such delay or failure is due to or arises from any Force Majeure Event, adverse weather, Content being delayed or inappropriate and/or any act or omission of the Customer.
6.4. Subject to Clauses 6.1 and 6.2, the aggregate and entire liability of the Studio for losses or damage howsoever arising out of or in connection with this Agreement (including without limitation negligence or breach of statutory duty) from events, and/or a chain of events shall be limited to the amount of the Fees.
7. INTELLECTUAL PROPERTY
7.1. The Customer agrees that any and all Intellectual Property Rights which are created or generated during the Services, in the Works or in connection with this Agreement (whether prior to or after signing of this Agreement) by the Customer shall vest in the Studio. To the extent the Customer attains any such Intellectual Property Rights, the Customer assigns them to the Studio. Upon termination or expiry of the Agreement, the Customer shall promptly deliver to the Studio all notes, artwork, photographs, recordings and manuscripts in relation of the Services which contain Intellectual Property Rights owned by the Studio.
7.2. Both Parties agree that other than as outlined in this Agreement, neither Party assigns or transfers any pre-existing Intellectual Property Rights to the other Party. Where pre-existing Intellectual Property Rights has been provided by the Customer in Content, the Customer gives the Studio a non-exclusive, royalty free, irrevocable and perpetual licence to use such Content in connection with the Services.
7.3. In consideration of the Customer's promises contained herein and the Customer's full payment of the Fees, Studio grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Agreement, a non-exclusive and non-transferable, perpetual (subject to the termination provisions of the Agreement), non-assignable limited license to use the Works (the “License”) for the Customer’s own internal business purposes as outlined in the Order. Where a permitted use of the Works under an Order includes electronic direct mail advertising and/or social media posts by the Customer, the Customer shall credit the Studio in such permitted use in a form as notified to it by the Studio.
7.4. The Customer shall not permit any third party to use the Services or the Works on behalf or for the benefit of any third party in any manner whatsoever without the prior written consent of the Studio.
7.5. The License granted under Clause 7.3 does not entitle the Customer to access, copy, modify or use the Works outside the permitted use in the Order, nor does it entitle the Customer distribute, sub-license or resell the Works.
7.6. The Customer irrevocably and unconditionally grants to the Studio any consents under the Copyright Act 1968 (Cth) or under any similar laws of any jurisdiction now in force or in the future enacted as are necessary for the Studio in relation to the Works under this Agreement worldwide in all media now known or invented in the future without the need for any payment to the Customer.
7.7. The Customer agrees to notify the Studio immediately of any unauthorised disclosure, possession, or use of any of the Works of which the Customer has knowledge. The Customer shall promptly furnish Studio with, to the best of the Customer’s knowledge, complete details of such a situation and assist in preventing any recurrence thereof and cooperate at the Studio’s expense in any litigation or other proceedings reasonably necessary to protect Studio's rights.
7.8. The Services and Works may contain reusable elements, such as, but not limited to artwork, designs and documentation, that the Studio may use in providing Services to other customers. The Customer recognises that the Studio has the unlimited right to edit, copy, alter, add to, take from, adapt or translate the Works. To the maximum extent permitted by law, the Customer agrees to waive all Moral Rights in relation to the Services and Works.
7.9. The Customer warrants and represents that all Content provided by the Customer is authorised to be provided by the Customer and that its use in association with the Services will not infringe upon the Intellectual Property Rights of any third party. The Customer agrees to indemnify the Studio against any claims, losses or expenses caused by the Customer’s breach of a third party’s Intellectual Property Rights.
7.10. The Customer shall accord the Studio a credit in such form as set out in Order or as notified to the Customer in writing by the Studio.
8. CONFIDENTIALITY
8.1. Subject to Clause 8.2, the Customer shall maintain the confidentiality of Confidential Information that it gains access to in the course of this Agreement. The Customer will use the same degree of care with which it protects its own confidential information of a similar nature (and no less than reasonable care) and shall limit access to such Confidential Information to those of its employees, contractors and agents who need such access for the purposes consistent with this Agreement and who have signed confidentiality agreements containing protections no less stringent than those contained herein.
8.2. Information will not be confidential if it: (a) is previously known by the Customer; (b)is or becomes generally available to the public (other than as a result of its disclosure by the Customer in breach of this Clause); (c) is received from a third party by the Customer without the duty to keep it confidential; (d) is developed by the Customer independently without use of the Studio’s Confidential Information; or (e) is required to be disclosed by law or by any regulatory body to whose rule the Customer subject.
8.3. On expiry or termination of this Agreement, the Customer shall promptly (on request) of the Studio purge, delete or destroy any Confidential Information of the Studio that is in the Customer’s possession or control, save that the Customer may retain such Confidential Information if it is: (a) subject to ownership or user rights of a third party; (b) under a legal obligation to retain such confidential information; or (c) necessary for back-up purposes.
9. DATA PRIVACY
9.1. The Parties acknowledge and agree that they will comply with all data protection and privacy legislation and regulations applicable to the provision of the Services under this Agreement.
10. TERMINATION
10.1. Either Party may terminate this Agreement immediately on written notice to the other on the other Party seeking protection under bankruptcy laws, having a receiver, liquidator, administrator or administrative receiver appointed, ceasing to trade or having a dissolution order entered against it, or passing resolution for its dissolution (other than for a solvent reconstruction or amalgamation) or making any composition or arrangement with creditors generally.
10.2. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and (if capable of remedy) fails to rectify the breach within thirty (30) days following written notice from the other Party.
10.3. Either Party may terminate this Agreement in line with Clause 12.5.
10.4. Termination or expiration of this Agreement will not relieve or release either Party from making payments or performing obligations which may be owing to the other Party under the terms of this Agreement.
10.5. Clauses 4 to 12 (inclusive) shall, notwithstanding anything to the contrary, survive termination or expiration of this Agreement.
10.6. The Studio may terminate this Agreement for convenience by giving thirty (30) days written notice to the Customer.
11. NON-SOLICITATION AND OTHER ACTIVITIES
Nothing in this Agreement shall prevent the Studio from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the Term.
12. MISCELLANEOUS
12.1. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter (including any pre-printed terms on any Customer purchase order). Each Party agrees that it shall have no remedies and has placed no reliance in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. This Agreement may not be modified by the Studio or the Customer unless expressly prior agreed in writing.
12.2. Notices: Notices sent under either this Agreement may be served by personal delivery to the other Party or by sending them by ordinary pre-paid post to the Party's registered office or business address.
12.3. Severability: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
12.4. Assignment: Neither Party may transfer or assign its obligations or rights under this Agreement without the prior written approval of the other Party, with the exception that the Studio may assign its obligations or rights under this Agreement to any affiliate and/or successor corporation or entity (whether by purchase of all or substantially all of the assets or outstanding issued share capital of Studio or by merger or consolidation).
12.5. Force Majeure: Except for obligation for payment properly due, neither Party shall be responsible for any delay or failure to perform when its failure results from a Force Majeure Event and the time for performance of obligations by the Party subject to such event shall be extended for the duration of such a Force Majeure Event. The Parties will consult in good faith with the aim of reaching an agreement as to how to continue with the Services. If the period of delay or non-performance continues for forty-five (45) days, the Party not affected may terminate the Agreement by giving seven (7) days written notice to the affected Party. All payments and/or fees outstanding at the date of termination remain due and payable.
12.6. Waiver: No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.7. No Partnership: Nothing in this Agreement and no action taken by the Parties pursuant to it, shall constitute, or be deemed to constitute, a partnership, contract of employment, joint venture, or the relationship of principal and agent between the Parties. No Party has any authority or power to bind, contract in the name of, or to create a liability against the other Party in any way or for any purpose, unless specifically stated in this Agreement.
12.8. Governing Law: This Agreement and performance under the same shall be governed by the laws of the state of Queensland, Australia and the parties hereby submit to the exclusive jurisdiction of the Queensland courts.
This Order forms part of the Terms and Conditions which can be accessed online at the Studio’s website at: www.mcrt.studio (the “Agreement”). You acknowledge that your placing an order the Services with the Studio constitutes your acceptance of the Agreement and you agree to be bound by the Agreement. In the event of a conflict between the provisions of this Order and those of the Agreement, the provisions of the Agreement will govern.
The Services set out in your @MCRT.Studio Order are subject to these @MCRT.Studio Terms and Conditions (the “Agreement”), unless you have a signed @MCRT.Studio Services Agreement, in which case those terms and conditions apply instead. Please read the Agreement carefully. By proceeding with the Services you agree to be bound by the terms of this Agreement. @MCRT.Studio is the trading name of Maxim Chikanchi and Rozelle Tan (ABN 96 672 273 753) (the “Studio” or "@MCRT") and references to the “Customer” is a reference to you. The Customer or the Studio are each a “Party” and together the “Parties”.
AGREED TERMS
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement, unless the context indicates otherwise, the following expressions shall have the following meanings:
ABN: means an Australian Business Number;
Claim: means a claim made by any third party relating to an actual or alleged breach of a third party’s Intellectual Property Rights;
Commencement Date: means the date set out in the Order or the date on which the Studio starts providing Services, whichever is sooner;
Content: means the Customer’s data, emails, files, names, logos, text, artwork, video, audio and graphics;
Confidential Information: means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Studio or the time being confidential to the Studio and trade secrets including, without limitation, technical data and know-how relating to the business of the Studio or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, and including (but not limited to) information that the Customer creates, develops, receives or obtains in connection with the Agreement, whether or not such information (if in anything other than oral form) is marked confidential;
Fees: means the fees set out in your Order or if not in the Order then as otherwise agreed by the Parties;
Force Majeure Event: means an event or circumstance or cause beyond either Party's reasonable control, including acts of God or public enemies, civil war, insurrection or riot, fire, flood, acts of terrorism, explosion, earthquake or serious accident, change of law, failure of the Internet, pandemic, strike, labour trouble, shortage of raw materials, power or fuel, failures and delays in the banking or payment collections or payment transfer systems, any breakdown of plant or machinery, any failure of any computer software or hardware, or any failure in a communications network;
GST: means the Goods and Services Tax;
Intellectual Property Rights: means patents, utility models, rights to Inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Moral Rights: means the moral rights created under the Copyright Act 1968 (Cth) and in other jurisdictions any similar applicable rights created by law;
Order: means the order of the Services by the Customer, whether by the Studios’ order form or in the absence of an order form as otherwise ordered;
Services: means the services as set out in the Order;
Term: means the period from the Commencement Date until the Completion Date specified in the Order, or if there is no completion date in the Order then upon completion of the Services;
Termination Date: means the date of termination of this Agreement, howsoever arising; and
Works: means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, artwork, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Studio in the provision of the Services.
1.2. The headings in this Agreement are inserted for convenience only and shall not affect its construction.
1.3. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. The Order forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Order. Should a conflict occur between this Agreement and the Order, the Parties agree that this Agreement will prevail to the extent of the conflict.
2. SERVICES
2.1. The Customer during the Term of the Agreement shall purchase the Services and the Studio shall perform the Services in line with the terms and conditions of this Agreement.
2.2. The Studio shall not be liable for any delay or failure in performance to the extent that such delay or failure is due to or arises from any Content being delayed or inappropriate and/or any act or omission of the Customer.
3. TERM
The Services shall commence on the Commencement Date and shall continue for the Term unless and until terminated as provided by the terms of this Agreement.
4. PAYMENT TERMS
4.1. Fees are payable as outlined in this Clause 4 and as further outlined in the Order. If there are no payment terms in the Order, then payment is due no later than 14 days after the Completion Date.
4.2. If the Customer fails to make any payment due to the Studio by the due date for payment, then, without limiting the Studio’s remedies: (a) The Customer shall pay interest on the overdue amount at the rate of four percent (4%) a year above the RBA’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and (b) the Studio may, without liability to the Customer, suspend the provision of the Services, and Studio shall be under no obligation to provide any the Services while the invoice(s) concerned remain unpaid.
4.3. All amounts included in invoices are net of tax. The Customer shall, in addition, pay to the Studio the amount of any tax, duty or assessment, including any applicable GST which the Studio is obliged to pay and/or collect from the Customer in respect of any Services provided under this Agreement (other than tax on the Studio’s income).
4.4. If the Customer makes any deductions or withholdings from the payments to the Studio due to legal requirements to do so, the Customer shall make any additional payment as necessary to ensure that the net payment to the Studio equals the amount due.
4.5. Each Party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this Agreement.
4.6. Where the Customer books the Services of the Studio for a prior agreed time(s) and date(s) and where the agreed location(s) for the performance of the Services during that time(s) and date(s) is not made accessible and/or prepared by the Customer for the Studio to enable the Studio to perform the Services without delay, then the Customer shall pay all the Studio’s travel expenses to and from the location(s) in addition to all costs associated with accessing and/or preparing the location(s) and/or arranging a new time(s) and date(s) for the performance of the Services. All expenses of the Studio under this clause shall be calculated by the Studio at the rate of sixty dollars ($60) per hour per person and are payable by the Customer within seven (7) days of reciept of invoice by the Customer from the Studio.
5. WARRANTIES
5.1. Subject to the limitations in this Agreement, the Studio warrants to the Customer that it has the capacity and authority to enter into and perform this Agreement.
5.2. Except as expressly provided in this Agreement, the Services are provided “as is” without warranty or representation of any kind either express or implied including without limitation any warranties of merchantability, quality, fitness for a particular purpose, title and non-infringement.
6. LIMITATIONS OF LIABILITY
6.1. Neither Party excludes or limits any liability to the other Party under this Agreement for: (a) any fraudulent representations made by it on which the other Party can be shown to have relied; and (b) any liability that may not otherwise be limited or excluded by law. Additionally, nothing in this Clause 6 shall limit or exclude the liability of Customer to pay the Fees due for Services under this Agreement.
6.2. Subject to Clause 6.1, the Studio shall not be liable to the Customer under this Agreement, whether in contract or in tort (including negligence or breach of statutory duty) or otherwise, for: (a) any loss of profit, loss of revenue, loss of contracts, loss of anticipated savings, loss of goodwill, loss of opportunity, loss of data, loss of reputation or loss of business, whether caused directly or indirectly; and (b) any special, indirect, punitive or consequential loss, cost, damages or expenses whatsoever, even (in each case) if any such loss or damage was reasonably foreseeable or the Customer had been advised of the possibility of such loss, cost damage or expense. The Parties agree that each of the heads of loss in sub-Clauses (a) and (b) above (inclusive) are separate terms and are intended to be severable.
6.3. The Studio shall not be liable for any delay or failure in performance to the extent that such delay or failure is due to or arises from any Force Majeure Event, adverse weather, Content being delayed or inappropriate and/or any act or omission of the Customer.
6.4. Subject to Clauses 6.1 and 6.2, the aggregate and entire liability of the Studio for losses or damage howsoever arising out of or in connection with this Agreement (including without limitation negligence or breach of statutory duty) from events, and/or a chain of events shall be limited to the amount of the Fees.
7. INTELLECTUAL PROPERTY
7.1. The Customer agrees that any and all Intellectual Property Rights which are created or generated during the Services, in the Works or in connection with this Agreement (whether prior to or after signing of this Agreement) by the Customer shall vest in the Studio. To the extent the Customer attains any such Intellectual Property Rights, the Customer assigns them to the Studio. Upon termination or expiry of the Agreement, the Customer shall promptly deliver to the Studio all notes, artwork, photographs, recordings and manuscripts in relation of the Services which contain Intellectual Property Rights owned by the Studio.
7.2. Both Parties agree that other than as outlined in this Agreement, neither Party assigns or transfers any pre-existing Intellectual Property Rights to the other Party. Where pre-existing Intellectual Property Rights has been provided by the Customer in Content, the Customer gives the Studio a non-exclusive, royalty free, irrevocable and perpetual licence to use such Content in connection with the Services.
7.3. In consideration of the Customer's promises contained herein and the Customer's full payment of the Fees, Studio grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Agreement, a non-exclusive and non-transferable, perpetual (subject to the termination provisions of the Agreement), non-assignable limited license to use the Works (the “License”) for the Customer’s own internal business purposes as outlined in the Order. Where a permitted use of the Works under an Order includes electronic direct mail advertising and/or social media posts by the Customer, the Customer shall credit the Studio in such permitted use in a form as notified to it by the Studio.
7.4. The Customer shall not permit any third party to use the Services or the Works on behalf or for the benefit of any third party in any manner whatsoever without the prior written consent of the Studio.
7.5. The License granted under Clause 7.3 does not entitle the Customer to access, copy, modify or use the Works outside the permitted use in the Order, nor does it entitle the Customer distribute, sub-license or resell the Works.
7.6. The Customer irrevocably and unconditionally grants to the Studio any consents under the Copyright Act 1968 (Cth) or under any similar laws of any jurisdiction now in force or in the future enacted as are necessary for the Studio in relation to the Works under this Agreement worldwide in all media now known or invented in the future without the need for any payment to the Customer.
7.7. The Customer agrees to notify the Studio immediately of any unauthorised disclosure, possession, or use of any of the Works of which the Customer has knowledge. The Customer shall promptly furnish Studio with, to the best of the Customer’s knowledge, complete details of such a situation and assist in preventing any recurrence thereof and cooperate at the Studio’s expense in any litigation or other proceedings reasonably necessary to protect Studio's rights.
7.8. The Services and Works may contain reusable elements, such as, but not limited to artwork, designs and documentation, that the Studio may use in providing Services to other customers. The Customer recognises that the Studio has the unlimited right to edit, copy, alter, add to, take from, adapt or translate the Works. To the maximum extent permitted by law, the Customer agrees to waive all Moral Rights in relation to the Services and Works.
7.9. The Customer warrants and represents that all Content provided by the Customer is authorised to be provided by the Customer and that its use in association with the Services will not infringe upon the Intellectual Property Rights of any third party. The Customer agrees to indemnify the Studio against any claims, losses or expenses caused by the Customer’s breach of a third party’s Intellectual Property Rights.
7.10. The Customer shall accord the Studio a credit in such form as set out in Order or as notified to the Customer in writing by the Studio.
8. CONFIDENTIALITY
8.1. Subject to Clause 8.2, the Customer shall maintain the confidentiality of Confidential Information that it gains access to in the course of this Agreement. The Customer will use the same degree of care with which it protects its own confidential information of a similar nature (and no less than reasonable care) and shall limit access to such Confidential Information to those of its employees, contractors and agents who need such access for the purposes consistent with this Agreement and who have signed confidentiality agreements containing protections no less stringent than those contained herein.
8.2. Information will not be confidential if it: (a) is previously known by the Customer; (b)is or becomes generally available to the public (other than as a result of its disclosure by the Customer in breach of this Clause); (c) is received from a third party by the Customer without the duty to keep it confidential; (d) is developed by the Customer independently without use of the Studio’s Confidential Information; or (e) is required to be disclosed by law or by any regulatory body to whose rule the Customer subject.
8.3. On expiry or termination of this Agreement, the Customer shall promptly (on request) of the Studio purge, delete or destroy any Confidential Information of the Studio that is in the Customer’s possession or control, save that the Customer may retain such Confidential Information if it is: (a) subject to ownership or user rights of a third party; (b) under a legal obligation to retain such confidential information; or (c) necessary for back-up purposes.
9. DATA PRIVACY
9.1. The Parties acknowledge and agree that they will comply with all data protection and privacy legislation and regulations applicable to the provision of the Services under this Agreement.
10. TERMINATION
10.1. Either Party may terminate this Agreement immediately on written notice to the other on the other Party seeking protection under bankruptcy laws, having a receiver, liquidator, administrator or administrative receiver appointed, ceasing to trade or having a dissolution order entered against it, or passing resolution for its dissolution (other than for a solvent reconstruction or amalgamation) or making any composition or arrangement with creditors generally.
10.2. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and (if capable of remedy) fails to rectify the breach within thirty (30) days following written notice from the other Party.
10.3. Either Party may terminate this Agreement in line with Clause 12.5.
10.4. Termination or expiration of this Agreement will not relieve or release either Party from making payments or performing obligations which may be owing to the other Party under the terms of this Agreement.
10.5. Clauses 4 to 12 (inclusive) shall, notwithstanding anything to the contrary, survive termination or expiration of this Agreement.
10.6. The Studio may terminate this Agreement for convenience by giving thirty (30) days written notice to the Customer.
11. NON-SOLICITATION AND OTHER ACTIVITIES
Nothing in this Agreement shall prevent the Studio from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the Term.
12. MISCELLANEOUS
12.1. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter (including any pre-printed terms on any Customer purchase order). Each Party agrees that it shall have no remedies and has placed no reliance in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. This Agreement may not be modified by the Studio or the Customer unless expressly prior agreed in writing.
12.2. Notices: Notices sent under either this Agreement may be served by personal delivery to the other Party or by sending them by ordinary pre-paid post to the Party's registered office or business address.
12.3. Severability: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
12.4. Assignment: Neither Party may transfer or assign its obligations or rights under this Agreement without the prior written approval of the other Party, with the exception that the Studio may assign its obligations or rights under this Agreement to any affiliate and/or successor corporation or entity (whether by purchase of all or substantially all of the assets or outstanding issued share capital of Studio or by merger or consolidation).
12.5. Force Majeure: Except for obligation for payment properly due, neither Party shall be responsible for any delay or failure to perform when its failure results from a Force Majeure Event and the time for performance of obligations by the Party subject to such event shall be extended for the duration of such a Force Majeure Event. The Parties will consult in good faith with the aim of reaching an agreement as to how to continue with the Services. If the period of delay or non-performance continues for forty-five (45) days, the Party not affected may terminate the Agreement by giving seven (7) days written notice to the affected Party. All payments and/or fees outstanding at the date of termination remain due and payable.
12.6. Waiver: No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.7. No Partnership: Nothing in this Agreement and no action taken by the Parties pursuant to it, shall constitute, or be deemed to constitute, a partnership, contract of employment, joint venture, or the relationship of principal and agent between the Parties. No Party has any authority or power to bind, contract in the name of, or to create a liability against the other Party in any way or for any purpose, unless specifically stated in this Agreement.
12.8. Governing Law: This Agreement and performance under the same shall be governed by the laws of the state of Queensland, Australia and the parties hereby submit to the exclusive jurisdiction of the Queensland courts.
This Order forms part of the Terms and Conditions which can be accessed online at the Studio’s website at: www.mcrt.studio (the “Agreement”). You acknowledge that your placing an order the Services with the Studio constitutes your acceptance of the Agreement and you agree to be bound by the Agreement. In the event of a conflict between the provisions of this Order and those of the Agreement, the provisions of the Agreement will govern.