These are the terms and conditions on which Bose Creative ABN 65 673 542 047 (we/us/our) is willing to trade with you.

The client will be referred to as “you/yours” in these Terms and Conditions.

1. AGREEMENT

1.1 Acceptance of our Agreement may be by giving us instructions (such as you speaking with or writing to us) after receiving this document or by oral acceptance.

1.2 This Agreement constitutes a valid and legally binding agreement in accordance with its terms and may not be varied unless with the express written consent by us.

1.3 This Agreement supersedes all prior agreements between the parties and represents the entire Agreement for the Project Specifications.

1.4 You agree that the signatory to the Agreement has the requisite authority to enter the Agreement. Otherwise, you will ratify the Agreement by giving us instructions (such as you speaking with or writing to us) in relation to the Agreement and to complete the Project Specifications.

1.5 If you are a corporation, partnership or group, a person(s) will be nominated/authorised contact. Such decision making will be binding on the corporation, partnership, or group of people, and will be available and/or contactable should we require him/her to perform the Services.

2. DEFINITIONS AND INTERPRETATION

2.1 In this Agreement, unless the context otherwise require:

• Agreement means this document and Terms and Conditions, and any other document issued by us to you which relates or concerns the Project Specifications, Services and Deliverables, including but not limited to variations.
• Business Day means Monday to Friday, excluding public holidays;
• Commencement Date means the date of this Agreement;
• Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
• Completion Date means the date to complete Project Specifications, Services and the Deliverables;
• Confidential Information means information that:
  • (a) is by its nature confidential;
  • (b) is designated by any party as confidential; or
  • (c) a party knows or ought to know is confidential, and includes
    • (i) information of, or about, your entity, including financial information and other reports or records of or relating to you and your operations, acquired by us solely by virtue of the performance of the Services pursuant to this Agreement;
    • (ii) information created, discovered, developed or made known to us by you during the period of, or arising out of, our performance of the Services;
    • (iii) trade secrets, procedures, designs, processes, inventions and marketing information of either party;
    • (iv) matters of a technical nature, research and development details, financial statements, books and records, details of asset holdings, liabilities, planning, management, marketing and promotional procedures, quotations, concepts, methods, your customer information, systems, data bases and all sources of computer hard and software either party;
    • (v) information relating to either party’s customers including, lists of customers and the photographers, details of contracts and dealings with customers and the photographers and other parties; and
    • (vi) any other information classifiable in equity as confidential information.
• Intellectual Property means intellectual property used in but not created as part of the development of the Deliverables by us;
• Deliverables means the deliverables to be provided by the Company to you;
• Deliverables Date means the date in which the Company will supply the Deliverables to you;
• Expenses means any expenses incurred by us in performing the Services;
• Fees means the fee we will charge you to complete the Project Specifications, Services and the Deliverables;
• Intellectual Property means:
  • (a) copyright;
  • (b) all rights conferred under statute, common law or equity in relation to inventions (including patents);
  • (c) registered and unregistered trademarks;
  • (d) registered and unregistered designs;
  • (e) circuit layouts;
  • (f) confidential information; and
  • (g) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
• Force Majeure means any event beyond the reasonable control of the party affected and includes any event due to natural causes that happens independently of human intervention;
• GST means any tax, levy, charge or impost levied on the value of any facilities, Deliverables, services or other things supplied by us to you under this Agreement by any other Bill or Act of the Parliament of the Commonwealth of Australia;
• Material means any material, whether tangible or intangible, and includes:
  • (a) documents, records, equipment and any other Deliverables; and
  • (b) software (whether in human or machine-readable form), data and any other information;
• Services means services provided or to be provided by us to you in accordance with the Project Specifications, including the development and/or delivery of any Deliverables.
• Payment means the Fees and Expenses payable to us under this Agreement. If not specified, then for the Services performed at your request, direction and/or benefit;
• Project Specifications means the Project Specifications the Services and the Deliverables to be performed by the Company and supplied to you;
• Taxes means all taxes imposed by any government or authority of Australia or elsewhere including, but not limited to, all income tax, PAYG tax, capital gains tax, stamp duty, financial institutions duty, Customer tax, payroll tax and GST;
• Tax Invoice means an invoice that has been issued by us to you pursuant to this Agreement;
• Term means the period from the Commencement Date to the Completion Date, unless otherwise terminated pursuant to the terms of this Agreement;
• Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into a Deliverables;
• Third Party Rights means Intellectual Property Rights owned by or licensed to third parties Third Party Software including:
  • (a) computer programs owned by third parties and licensed by Developer and any subcontractors of Developer to develop a Deliverables; and
  • (b) any literary, dramatic, artistic and musical works owned by third parties and licensed to Developer for inclusion in a Deliverables;
• Third Party Software means any computer program or modification or enhancement of a computer program, which is not owned by us or any related entity and which is used by us in connection with performing the Services, or which is at any time supplied to you by us or its subcontractors or incorporated into a Deliverables;
• Work Product means the finished product, as well as any drafts, texts, graphics, photos, videos, designs, visual elements, trademarks, code and anything else that we work on, conceive, create, design, develop, invent or reduces to practice as part of this project.

2. SERVICES, DELIVERABLES

2.1 We will provide you the Services, develop and provide the Deliverables under the terms of this Agreement, and any Work Product.

Upon entering the Agreement, or a reasonable time after entering the Agreement, a photographer and editor will be assigned to complete the Services and the Deliverables. The photographer and/or editor may be changed due to illness, scheduling conflicts, or any other reason we believe is reasonable.

2.2 Time Frame

We will use our best endeavors to provide the Services and Deliverables required by you by the Deliverables Date and/or Completion Date. The parties agree that the Deliverables Date and/or the Completion Date is an estimate time-frame only.

2.3 Deliverables

You will review the Deliverables, answer any questions regarding the Project Specifications and provide feedback within a reasonable time if requested.

The Deliverables will be available to you to download for a period of two (2) months from the date of supply of the Deliverables.

You are entitled to one (1) complimentary change to the Deliverables, but must notify us in writing of the change at bookings@bosecreative.com.au, within thirty (30) days of supply of the Deliverables (Notice of Change). The Notice of Change must specify all change requests.

We will attend to the Notice of Change and supply the changed Deliverables to you within thirty (30) days of receipt of the Notice of Change, or as otherwise notified to you in writing.

If a Notice of Change is not received within thirty (30) days of supply of the Deliverables, then unless otherwise agreed by us, it will be deemed that you have accepted the Deliverables as is, and any Notice of Change after thirty (30) days of supply of the Deliverables will be subject to a new quote.

2.4 Change Requests

You must notify us in writing at bookings@bosecreative.com.au of any change requests to the Project Specifications.

If the change request materially effects this Agreement, including you cannot proceed at the Commencement Date, then the following apply:

• (a) clause 3.5 and 3.6; and/or
• (b) we will provide you with a quote for any additional Payments or Expenses associated with the change requests within ten (10) days. You acknowledge and agree that we are not required to commence, continue, or complete any work under the Change Requests until the quote is accepted in writing by you.

3. PAYMENTS AND EXPENSES

3.1 We will Invoice you our Fee and Expenses per the terms of the Agreement, unless otherwise agreed in writing.

3.2 Should we be instructed or directed to undertake additional work on the day we attend to perform the Services that are outside the Project Specifications, then all additional charges may apply.

3.3 You agree to pay for all expenses reasonably incurred by us in undertaking the work for you as follows:

• (a) up to $100.00 without your pre-approval from you;
• (b) over $100.00, pre-approved by you either orally or in writing.

3.4 You must pay the Invoice sum within 15-days of the date of the Invoice, without any matter of counter claim, sett-off or deduction.

3.5 If you do not proceed at the Commencement Date for whatever reason, change the Commencement Date for whatever reason, or terminate the Agreement prior to the Commencement Date, then the following apply:

• (a) fourteen (14) days before the Commencement Date, then we may charge you a fee equal to 30% of our Fee for the hours and/or days set aside set aside in the Project Specifications; or
• (b) seven (7) days before the Commencement Date, then we may charge you a fee equal to 50% of our Fee for the hours and/or days set aside set aside in the Project Specifications; or
• (c) two (2) days before the Commencement Date, then we may charge you a fee equal to 100% of our Fee for the hours and/or days set aside set aside in the Project Specifications.

3.6 In circumstances where the Agreement is terminated after the Commencement Date but before the Deliverables date and/or the Completion Date, we are entitled to Invoice you for the work done from the Commencement Date up to and including the date of termination, including any Expenses incurred or that we would otherwise remain liable to pay (time allocated for the editing). You will pay the amount owed within 15 days of receiving the Invoice.

3.7 If payment is not made within the required time frame, a late fee of 5.0% per month on the outstanding amount is due will become due and payable by you.

4. OWNERSHIP

4.1 Rights, Title and Interest

You acknowledge and agree that you will only be entitled to have absolute and beneficially right, title and interest to the Deliverables and any Work Product upon full payment of all Invoices and complying with all terms under the Agreement.

Should you fail to make payment of the Invoices and complying with all terms under the Agreement, you cannot use the Deliverables and Work Product, for any purpose.

4.2 You hereby acknowledge and agree that:

• (a) we will have a lien over all the Deliverables and Work Product to secure payment of any or all amounts outstanding from time to time;
• (b) our lien is a security interest within the meaning of section 51A of the Corporations Act (Cth) 2001 and/or section 12 of the Personal Property Securities Act (Cth) 2009 (PPSA);
• (c) we may register its security interest, and you will sign and/or provide any further information which we may reasonably require to register; a financing statement in relation to a security interest on the Personal Property Securities Register, register any other document required by the PPSA, or correct a defect in a financing statement;
• (d) all costs and expenses incurred by us in registering a financing statement on the Personal Property Securities Register will be reimbursed by you;
• (e) for the purpose of registering a financing statement on the Personal Property Securities Register:
  • (i) the parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this agreement;
  • (ii) you hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  • (iii) you waive your rights as a grantor and/or an amount owing or under sections 142 and 143 of the PPSA.
  • (iv) Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with section 157 of the PPSA; and
  • (v) you shall unconditionally ratify any actions taken by us in registering a financing statement on the Personal Property Securities Register, or more generally registering its security interest.

4.3 Proof of Ownership

Subject to payment of all Invoices, we agree to assist you to prove ownership of the Deliverables and Work Product, if required.

4.4 Pre-Existing Material

This Agreement does not affect any pre-existing intellectual property rights owned by us or licensed from a third-party which may be used to create the Deliverables and Work Product, or performance of the Services or part of the Deliverables and Work Product.

4.5 Our Right to use your Intellectual Property

You agree to grant permission for us to use your Intellectual Property for the sole purpose of the creation of the Deliverables and Work Product, and performance of the Services or part of the Deliverables and Work Product.

4.6 Our Right to use your Deliverables

You agree to grant us an irrevocable permission to use the Deliverables in the following ways: portfolios and websites, in galleries, and in other media, so long as it is to showcase the Deliverables.

5. REPRESENTATION

5.1 Degree of Skill, Care and Diligence

We have the know-how, qualifications and facilities necessary to perform the Services, and create and deliver the Deliverables and Work Product.

5.2 No infringements of Intellectual Property Rights

You warrant that any material you provide to us for the purpose of incorporation into the Deliverables or performance of the Services will not infringe the Intellectual Property Rights of any person including any Third-Party Rights, Materials or Software.

We warrant that the Deliverables, the performance of the Services and the Deliverables we produce and supply you will not infringe the Intellectual Property Rights of any person including any Third-Party Rights, Materials or Third-Party Software.

5.3 Compliance with Laws and Defamation

We will comply with all your reasonable and lawful requests and directions within the scope of this Agreement.

The parties warrant that the Deliverables or performance of the Services will not contain any defamatory, offensive, racially inflammatory matter or breach any contract or duty of confidence, contempt of court or expose either party to any civil or criminal proceedings.

6. TERM AND TERMINATION

6.1 Term

This Agreement commences or is deemed to have commenced on the Commencement Date and continues until the work is completed at the Deliverables Date, end of Term, unless otherwise agreed in writing.

6.2 Termination

Either Party may terminate this Agreement for any reason with 14 days written notice to the other party in compliance with Clause 10.

6.3 We will cease working on the Deliverables upon receipt of the notice given under clause 10 and will issue you an Invoice in accordance with clause 3, specifically clause 3.5 and 3.6.

6.4 Ongoing Clauses

The following clauses may continue to apply even after termination of the Agreement pursuant to Clause 6:

• (a) Clause 3 (Payment and Expenses);
• (b) Clause 4 (Ownership);
• (c) Clause 8 (Confidential Information);
• (d) Clause 9 (Liability and Indemnity); and
• (e) Clause 11 (General).

7. RELATIONSHIP OF PARTIES

7.1 The parties agree that we are strictly independent contractors, only. Neither party will deem, consider, or represent to anyone that we are an employee of yours.

7.2 The parties agree that:

• (a) we will use our own equipment, tools and material to complete the work;
• (b) we are responsible for the day-to-day performance and operation of the project;
• (c) you will not intervene and control the way in which we carry out the work; and
• (d) you will not provide us with any training.

7.3 Neither party can bind the other to any agreement with a third party.

8. CONFIDENTIAL INFORMATION

8.1 We agree to keep the Confidential Information you provide to us or obtained by us pursuant to or as a result of this Agreement strictly confidential and not to disclose or divulge the same to any other person or entity except if disclosure is required by law.

8.2 Each Party must also:

• (a) use the Confidential Information, only for the purpose of this Agreement;
• (b) maintain the confidentiality of the Confidential Information and ensure that the Confidential Information is not disclosed to or used for the benefit of any third party without the prior written consent of the other party;
• (c) take all steps and do all things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information.

9. LIABILITY AND INDEMNITY

9.1 Our Liability

We will not be liable for:

• (a) any loss of interest, revenue, profit, or any data, or for any consequential, indirect, incidental or special damages suffered by you relating to the subject matter of this Agreement, including but not limited to:
  • (i) the maintenance of confidentiality of any and all access codes, log in details, and passwords;
  • (ii) the installation of security mechanisms to maximise the use of the Services;
  • (iii) the failure of computer equipment, software, or any other Deliverable used in connection with use of the Services;
  • (iv) the unauthorised use of the Services, access codes, log in details, and passwords;
  • (v) the failure to achieve any goals through the use of the Services; and
  • (vi) any and all activities in connection with the improper or unauthorised use of the Services.
• (b) To the fullest extent permitted by law, our liability to you (whether such liability is in contract, tort, negligence, or for any breach of warranty, representation or statute) for any act or omission done in connection with the subject matter of this Agreement, will be limited in aggregate to an amount equal to the payment made by you under this Agreement.

9.2 You Indemnify Us

You agree to indemnify us on a full indemnity basis against any loss or damage from and against all third-party claims or proceedings arising out of:

• (a) a breach of your obligations under this Agreement; or
• (b) a breach of a representation or warranty under the Agreement.

10. NOTICE

10.1 Form of Notice

All notices and other communications by or to the parties to this Agreement shall be in writing and signed by a director, secretary or other duly authorised officer or the solicitor of the party giving such notice or communication.

10.2 Addresses for Notices

Notices issued by you to us must be sent to bookings@bosecreative.com.au. Notices we issue to you, will be sent to the email address, postal or street address you nominated and recorded by you.

10.3 Time of Service

Any notice issued by either party via email will be deemed served within 2-business days of the date of issuing.

You acknowledge and agree that any notice, demand or document issued through a court or Court may be served at the email address, postal or street address you nominated and recorded by you.

11. GENERAL

11.1 Assignment

The parties cannot assign its rights or delegate its obligations under this Agreement to a third party without the express written consent of the other party.

11.2 Counterparts

This Agreement may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument, including if counterparts are in electronic form.

11.3 Costs

Each party must bear its own costs of and incidental to the preparation and execution of this Agreement.

11.4 Force Majeure

If by an act of Force Majeure a party is unable to perform in whole or in part any obligation of this Agreement, that Party is relieved of that obligation to the extent and for the period that it is unable to perform and is not liable in respect of such inability.

11.5 Severability

This Agreement shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:

• (a) that provision shall, so far as is possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
• (b) if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.

11.6 Independent Legal Advice

You acknowledge that you have read the terms of this Agreement and have been given equal bargaining power to negotiate the terms of the Agreement.

You further acknowledge that you have had the opportunity to obtain independent legal advice regarding the effect and impact of the Agreement. If you elected not to obtain independent legal advice, then you have done so on your own free-will.

11.7 Governing Law and Jurisdiction

(a) This Agreement shall be governed by and construed in accordance with the laws of New South Wales.

(b) The Parties irrevocably submit to and accept, generally and unconditionally, the exclusive jurisdiction of any of court or Courts of New South Wales with respect to any legal action or proceedings which may be brought at any time relating in any way to this Agreement.