CLIENT TERMS & CONDITIONS
The terms of the Project Agreement based upon the submitted quotation are as follows:
PROJECT PAYMENT PLAN:Initial payment of 50% of the final balance required on commencement of the project with the balance required on completion.
CHANGES TO PROJECT SCOPE
If the Client wants to change the Scope of Work after acceptance of the initial briefing, the Client will be required to send Big Idea Design a written Change Order describing the requested changes in detail. Within seven days of receiving a Change Order, Big Idea Design will respond with a statement proposing the impact to the project timeline, any additional fees and any modification to the Terms and Conditions. Big Idea Design will evaluate each Change Order at its standard rate and charges. The Client will be billed on a time and materials basis at Big Idea Designs hourly rate of $60 per hour. Such charges shall be in addition to all other amount payable under this Project Agreement, despite any maximum budget, contract price or final price identified. Big Idea Design may extend or modify any delivery schedule or deadlines in the Project Agreement as may be required by such changes. The Client will have seven days to respond in writing accepting or rejecting the new proposal. If the Client rejects the proposal, Big Idea Design will not be obligated to perform any services beyond those in the original Project Agreement.
The Client shall use all reasonable efforts to provide needed information, materials and approvals in a timely manner. Any delay by the Client will result in a day-for-day extension of the due date for the Project. Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of any delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
ACCREDITATION AND PROMOTION
Big Idea Design shall be entitled to place accreditation, as a hyperlink, in the form, size and location as per Big Idea Designs specifications. Big Idea Design retains the right to reproduce, publish and display the final Project on Big Idea Design’s website, social media, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence and to be credited with authorship of the Project in connection with such uses.
All material considered confidential by either party shall be designated as confidential. Confidential information shall not be disclosed to third parties and shall only be used as needed to perform this Project. Confidential information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
RELATIONSHIP OF THE PARTIES
Big Idea Design is an independent contractor. Big Idea Design shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Project Agreement. Neither party is authorised to act as agent or bind the other party except as expressly stated in this Project Agreement. Big Idea Design and the work product or Deliverables prepared by Big Idea Design, shall not be deemed a work for hire as defined under Copyright Law. All rights granted to the Client are contractual in nature and are expressly defined by this Project Agreement.
REPRESENTATIONS AND WARRANTIES
The Client represents and warrants to Big Idea Design that to the best of the Client’s knowledge, use of the Current/Client Content does not infringe the rights of any third party. Big Idea Design represents and warrants to the Client that to the best of Big Idea Design’s knowledge, the Deliverables will not violate the rights of any third parties.
Except for the express representations and warranties stated in this agreement, big idea design makes no warranties whatsoever. Big idea design explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project, indemnification and liability.
The Client shall indemnify Big Idea Design from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in deliverables at the request of the Client.
The services and the work produced of big idea design are sold “as is.” In all circumstances, the maximum liability of big idea design, its directors, officers, employees, design agents and affiliates (“designer parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of big idea design. In no event shall big idea design be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by big idea design, even if big idea design has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy, term and termination.
This agreement shall begin when both parties proceed with the Project and shall continue until all Services are complete and delivered, or until the Project Agreement is Terminated. Either party may terminate this agreement at any time, on ten business days prior written notice if the other party breaches any of its material responsibilities or obligations under this Project Agreement and fails to cure that breach during that ten business day period. Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it. In the event of termination, the Client shall pay Big Idea Design for the Services performed through the date of termination in the amount of a prorated portion of the fees due. The Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Big Idea Design grants to the Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Project Agreement. The rights granted to the Client are for use of the Final Deliverables in its original form only. The Client may not change, create derivative works or extract portions of the Final Deliverables.
Big Idea Design retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to Big Idea Design within 30 days of completion of the Services. All Big Idea Design Tools are and shall remain the exclusive property of Big Idea Design or third party Contractors. Big Idea Design grants the Client a nonexclusive, nontransferable, perpetual, worldwide license to use Big Idea Design Tools solely to the extent necessary with the Final Deliverables for the Project.
During the first two months following expiration of this Project Agreement, Big Idea Design shall provide up to 20 hours of Support Services at no additional cost to the Client. Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. Requests for additional support will be billed on a time and materials basis at Big Idea Designs standard rate. The services in the Warranty Period do not include enhancements to the Project or other services outside the scope of the initial briefing of the Project.
Alteration of any Deliverable is prohibited without the express permission of Big Idea Design. Big Idea Design will be given the first opportunity to make the required alterations. Unauthorised alterations shall constitute additional use and will be billed accordingly.
Parties agree to attempt to resolve any dispute by negotiation between the parties. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties. The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Modifications to this Project Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Project 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. All notices under this Project Agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt. Rights or obligations under this Project Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party. This Project Agreement shall be governed by the law of Victoria. If any provision of this Project Agreement is held invalid or unenforceable, the remainder of this Project Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law. Headings and numbering used in this Project Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Project Agreement, and shall not have any legal effect. This Project Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Project Agreement.