By Ninja provides design and content creation services to brand conscious and client-focused people just like you.
This is the Agreement upon which By Ninja will carry out work for you. This Agreement comprising the Schedule, Terms of Service, and any agreed written variations will apply each time that you ask us to do work for you, or carry out a Service and sets out our Services and what you can expect from us.
You are welcomed and encouraged to seek your own independent legal advice in relation to this Agreement. We have provided the key details of the Agreement in the Schedule below for ease of reading and review.
1.1. In this Agreement, the following definitions apply unless the context makes it clear that a definition is not intended to apply:
“Agreement” means this Creative Design Agreement comprising its Schedule, Terms of Service and any agreed variations.
“Background IP” means Intellectual Property Rights owned by either party or which that party has the right to use immediately prior to the date of this Agreement or developed independently of this Agreement.
“By Ninja” means the entity specified in Item 1 and where the context so requires, includes its employees, agents, and/or subcontractors.
“Business Day” means between 8.30am and 5.00pm on a weekday other than a Saturday, Sunday or public holiday in Queensland, unless specified otherwise in this Agreement.
“Commencement Date” has the meaning in Item 3.
“Confidential Information” means all information obtained by either party about the other while performing this Agreement which is not already known to the other party, or which is not available in the public domain, and may include but is not limited to products information; technical information and specifications; product and materials prices and costs.
“Client” means you – our cherished client – details of whom are specified in Item 2, and where the context so requires, includes your employees, agents, and/or subcontractors.
“Creative Brief” means the creative specification produced by us as our interpretation of your instructions setting out the description and scope of Services required to produce the Deliverables and which is agreed between us prior to commencement of the Services and which may be revised as required from time to time as agreed.
“Deliverables” means any products or services produced by us based upon your instructions whether that is carried out by us in a single or multiple phases, which may include the production of a Creative Brief, mood board or other forms of design concept, the proofs, designs, images, photographs, artwork, graphics, models, copy, communications, digital or hard copy, footage, features, characters or other goods or services commissioned by you and set out in any instruction by you that are produced by us in accordance with this Agreement.
“Hourly Rate” means $185.00 plus GST.
“Hourly Overtime Rate” means the Hourly Rate multiplied by 1.5 plus GST.
“Inside-scope Amendments” means amendments to any part of the Project sought by you that result in additional services by us and which, in our opinion, are consistent with the Creative Brief and deliverables provided to you to date.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information including know-how, 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.
“Item” means an item in the Schedule to this Agreement.
“Outside-scope Amendments” means amendments to any part of the Project sought by you that result in additional services and which, in our opinion, are inconsistent with or outside the Creative Brief and deliverables provided to you to date, or which require an additional amount of work by us not contemplated in the Services or the Creative Brief.
“Parties” means us and you.
“Personal Information” means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
“Project” means the collective Services set out in the Schedule and any works specified in a Creative Brief.
“Services” means the services in Item 8 to be provided by us to you.
“Services Quote” means the amount payable by you to us for the Services performed under this Agreement and unless otherwise specified, is exclusive of GST and does not include any Outside-Scope Amendments.
“Term” means the period(s) of this Agreement and any mutually agreed extension of time of the Term or as otherwise agreed in writing between you and us.
“Work in Progress” means any single tranche, or any element of output generated and/or produced by us during the performance of the Services, whether in a hard copy or digital format of whatever form or medium including any element of any Deliverables prior to the Final Deliverables.
2.1. Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They do not form part of this Agreement or have any contractual force.
3.1. While we typically do not amend these Terms during a Project – unless required by law or otherwise deemed necessary by us – we do reserve our right to review and change any of the terms of this Agreement (including pricing).
4.1. We will start the Services on the Commencement Date.
4.2. We will provide you the Services for the period of, or within the Term, or where no Term is specified, for an ongoing month-to-month period, unless this Agreement is terminated in accordance with this Agreement.
5.1. Your instructions form the basis of any Creative Brief, Deliverables, and Services we provide to you.
5.2. Upon receipt of your instructions, we will send you our proposed Services Specification including any recommendations of what is required to produce the Deliverables, which may include our suggested timescales and any project methodologies that we consider may be needed to meet your requirements.
6.1. We will supply the Services to you in accordance with the description contained in Item 8 of the Schedule.
6.2. Photography services attract a separate fee and if required as part of the Project we will discuss this with you at that time.
6.3. The Services will be provided by us under your direction, or your authorised representative, in all material respects.
6.4. If you require any Outside-scope Amendments, we will advise you of the tasks associated with the Outside-scope Amendments and a breakdown of the additional fees we require before providing you with the Services relevant to the Outside-scope Amendments.
6.5. We may subcontract any aspect of the Services without prior notice to you, but we will remain responsible to you for all work conducted under this Agreement.
7.1. Where we consider it appropriate to provide you with an estimate of any phases, performance milestones or completion dates for the Services, any such dates are estimates only and time shall not be of the essence for performance of the Services or the completion of Deliverables.
7.2. Time estimates depend on a number of factors that may change during the course of performing the Services, some of which may be outside our control. We will do our best to communicate any material changes to you as soon as practicable.
7.3. We will use reasonable commercial endeavours to deliver the Services in accordance with any agreed timeframes, but we do not guarantee any timing estimates and we will not be in breach of our obligations if we fail to meet any such timelines.
8.1. Our Fees for the Services are set out in the Services Quote at Item 5.
8.2. The Services Quote for performance of the Services requested by you are based on the Services set out at Item 8.
8.3. Where we identify from your instructions that working outside of Business Day hours is necessary, we reserve our right to charge the Hourly Overtime Rate. We will discuss this with you if we consider this necessary.
8.4. Any request for Outside-Scope Amendments will be calculated in accordance with our Hourly Rate unless otherwise agreed.
8.5. If we provide you with a daily rate this is based on a seven-hour day from 9.00 am to 5.00 pm on Business Days (less an hour break).
8.6. We will invoice you in accordance with the Payment Terms at item 6.
8.7. Where our Services are to be supplied to you in stages as specified in the Schedule, you acknowledge and agree that we may invoice you for Services on the dates specified in the Schedule. These may not be on the same date as the completion of a particular stage or milestone.
8.8. If you fail to pay any invoice within our Payment Terms set out at Item 6 or if you fail to provide us with substantive instructions within 15 Business Days of us requesting this, then in addition to any other rights that we may have under this agreement, we may:
(a) cancel any prior Service Quote provided to you and issue you with an updated Service Quote; and
(b) if you do pay our invoice and/or provide us with substantive instructions, charge you a fee that represents our reasonable costs and expenses in order to re-commence the supply of the Services (“Delay Fee”).
8.9. You acknowledge and agree that the Delay Fee is a reasonable estimate of the additional work and time that we will expend in order to re-commence the supply of the Services as a result of your breach of either clause 8 or 8.8.
8.10. We may require a portion of our Services Quote to be paid in advance of us commencing performance of Services. If we do this, we will send you an invoice for these fees following your acceptance of the Services. Before commencing performance of the Services this invoice must be paid in full, by cleared funds to our bank account contained at Item 7.
8.11. Unless otherwise agreed, any request for a portion of our Services Quote to be paid upfront must be paid within thirty (30) days, failing which the Services Quote will expire and we may issue an updated Services Quote before commencing the Services.
8.12. Unless otherwise specified in the Schedule, on completion of the Services and provision of the Final Deliverables, we will invoice you for the outstanding amount of our Services Quote and any other fees arising from Inside-Scope Amendments exceeding the two allowed, and well as any Outside-scope Amendments.
8.13. You undertake to pay our invoice(s) within fourteen (14) days of receipt of our invoice.
8.14. Our fees are exclusive of GST which will be set out in our invoice and must be payable in full by you in accordance with this clause.
9.1. If your invoice is not paid within the time specified in this Agreement or on the invoice, we may suspend performance of the Services until that invoice is paid in full in cleared funds in our bank account.
9.2. If you fail to pay any of our invoices within the time specified in this agreement, we may charge interest on the outstanding amount at the rate of 5% per annum, compounded daily, until full payment and interest are received by us.
9.3. You agree to pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
9.4. If your invoice is not paid within our payment terms, and we engage a third-party to recover or assist in recovering the outstanding amount (whether that is a collection agency, lawyer, or other service), you agree to indemnify us for all costs incurred by us in recovering the amount owed by you, which will be added to the original amount owing.
10.1. Unless specified in the Service Quote, our fees do not include any third-party costs incurred by us on your behalf, including but not limited to searches, production costs, purchase of stock images, commercial fonts, audio, video, printing/production.
10.2. If we intend to incur third party costs on your behalf which are not specified in the Schedule, and which will exceed the Service Quote, we will obtain your permission before doing so.
10.3. If we purchase any stock images or commercial fonts for use in the Services, we will be the licence holder and that image or font must only be used under the terms of the relevant licence. We may purchase rights to images that we use in providing the Services to you. Such images may be subject to a licence agreement between us and a third party that may restrict your use of those images. Please ask us if you would like to be given a copy of the terms of any such licence. Unless otherwise agreed in writing, we may at our discretion use images that have been used in providing the Services to you, with other clients or on other works. If you require specific images, you may be required to pay additional fee(s) for that use. Even if we agree to provide an image to you exclusively, we cannot guarantee that the image will not be used by other third parties who may have obtained these images from another party.
10.4. You agree to indemnify us and agree to keep us and our employees indemnified, against any and all claims arising out of any use of the abovementioned licenses by you that breaches or is alleged to have breached any of these licenses.
10.5. Subject to the relevant licence, ownership of stock images, audio or video will be transferred to you upon full payment of all our issued invoices.
10.6. We retain ownership to all Work in Progress, working files, drafts and other process items.
11.1. In addition to any other obligations under this Agreement, in working with us you agree to:
(a) be responsible for providing clear instructions and information as requested in an expeditious manner;
(b) inform us of any restrictions or industry specific requirements in relation to the Services;
(c) pay us in the timeframe set out in the Schedule;
(d) ensure that any Work In Progress provided by us to you is kept confidential and not shared with any third-parties including via social media;
(e) ensure that any materials you provide to us does not infringe on a third party’s Intellectual Property Rights;
(f) act courteously to us and not do anything which would harm our reputation
(g) provide us with specifications of any regulatory requirements to which you are required to adhere.
12.1. In addition to any other obligations under this Agreement, in working with you we agree to:
(a) conduct the Services in a professional manner using due care and skill;
(b) provide the Services in a timely manner as agreed;
(c) comply with all legislative, regulatory and other government requirements including in relation to GST, workers compensation, payroll tax, income tax, fringe benefits tax, PAYG tax, group tax and superannuation contributions;
(d) use reasonable efforts to ensure conformity to a commensurate level of professional conduct as normally required to perform similar services;
(e) not do anything to harm your reputation or the reputation of your, clients, suppliers, agents, and will inform you within a reasonable period of becoming aware of any derogation or potential reputation damage by any other employee, contractor, supplier, client or social media follower.
13.1. During a Project or other time when we are in the process of providing you with the Services, you may request amendments or variations to the Services, Project or Deliverables. We will deem these as either Inside-scope Amendments or Outside-scope Amendments (see definitions of these at the start of these Terms).
13.2. The first two (2) Inside-Scope Amendments are complimentary. Any further Inside-Scope Amendments will be subject to our Hourly Rate.
13.3. Outside-Scope Amendments are subject to either our Hourly Rate or a further Services Quote.
13.4. Where multiple concepts of Deliverables are produced by us, you are entitled to choose and use only one of the Deliverables representing the Creative Brief (“the Final Deliverables”). If you wish to use additional versions of the Deliverables, we can discuss this with you, subject to agreement on additional fees. If you require more than one version of the Final Deliverables, please set this out clearly in writing.
13.5. Any of the Deliverables not chosen by you as the Final Deliverables remain our property.
14.1. Unless otherwise agreed in writing, you acknowledge and agree that all Intellectual Property Rights in all creation files, working files, artwork and other documents provided by us in connection with the Services vests in us on its creation. For the avoidance of doubt, this does not include your Background IP or any licenses (such as image licenses).
14.2. We retain all ownership and Intellectual Property Rights in the Deliverables and upon full payment of our Services Quote and any additional fees owed, we grant, you a perpetual, irrevocable licence to use the Final Deliverables.
14.3. In the event that you and us agree that the Final Deliverables are to be provided to you before you have paid the entirety of our Services Quote, we grant you a conditional licence to use the Final Deliverables subject to you meeting any pre-arranged payment obligations. If you default on any such payments, your conditional licence to the Final Deliverables is suspended until full payment of our Services Quote and any other monies you owe to us are paid in full.
14.4. Provided that you have paid all outstanding fees owing to us for the Project the subject of the relevant works, you may assign the licence granted in the above clause.
14.5. Each party retains ownership of its Background IP and grants to the other party a non-exclusive, royalty-free licence as follows:
(a) for By Ninja, to the extent necessary to enable us to provide the Services, exercise our rights in accordance with the provisions of these terms and conditions and otherwise carry out our obligations under these terms and conditions, and
(b) for you only for the purpose and scope of the Deliverables, unless otherwise agreed in writing.
14.6. While Final Deliverables will be unique and tailored to your specifications, if during a Project we develop a general concept or process which is capable of being patented then we retain the ownership to that concept or process, but which will not affect your rights to the Final Deliverable provided in this Agreement.
14.7. To the extent permitted by applicable laws and for your benefit, we will, upon your request in writing procure the consent from the holder of any moral rights in the Project.
14.8. We reserve the right to display all designs that we create for you on our website and our marketing material, including on social media platforms (Display Rights). However, we agree not exercise our Display Rights until the earlier of:
(a) After you have publicly released any of the designs, we have provided you under this Agreement; or
(b) Nine (9) months’ from the date we provided you with the Final Deliverables.
15.1. Each Party must not, and must ensure that its officers, employees, agents and sub- contractors do not, use or disclose any Confidential Information or Personal Information of the other Party without that other Party’s consent, other than for the purposes of performing this Agreement.
15.2. The obligations under this clause do not apply to the extent that:
(a) any information is publicly available (other than as a result of a Party’s breach of this Agreement);
(b) any information is lawfully provided to a Party by a third party;
(c) a Party is required by law to disclose the information (and prior notice of the disclosure is given to the other Party); or
(d) a Party is required by this Agreement to disclose the information to a third party.
15.3. During the Term, each Party must keep all Confidential Information in a secure location so that no unauthorised person is reasonably able to gain access to it.
15.4. If we collect or have access to Personal Information in order to provide the Services, we will:
(a) ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
(b) not use Personal Information other than for the purposes of performance of the Services, unless required or authorised by law;
(c) not disclose Personal Information without your consent, unless required or authorised by law;
(d) ensure that only authorised personnel have access to Personal Information;
(e) immediately notify you if we become aware that a disclosure of Personal Information is or may be required or authorised by law;
(f) make our officers, employees and subcontractors aware of our obligations under this clause;
(g) comply with such other privacy and security measures as you reasonably advise in writing from time to time.
15.5. We will notify you as soon as practicable upon becoming aware of any breach of this clause.
16.1. You agree to indemnify us, our officers, employees and agents (those indemnified) from and against any claim, action, demand, damage, loss, liability, cost, charge, expense, outgoing, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with the Services provided to you, or in relation to your breach of this Agreement.
16.2. Notwithstanding any other provision of this Agreement, the liability of you or us arising under and/or in connection with this Agreement will exclude any liability for indirect or consequential loss.
16.3. To the maximum extent permitted by Law, our aggregate liability in respect of any causes of action arising under or in connection with this Agreement, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to an amount equal to the cumulative total of the Service Quote paid or payable by you to us in the first two (2) months of this Agreement.
16.4. Our supply of the Services may be subject to certain statutory guarantees available to you, including under the Australian Consumer Law. Nothing in this Agreement excludes, restricts or modifies the application of statutory guarantees or any associated rights or entitlements to remedies that you may have.
17.1. All notices between you and us must be provided to the relevant address as provided in the Schedule.
18.1. We may terminate this Agreement by written notice to you effective immediately upon the occurrence of any of the following:
(a) If you are in breach of any of your payment obligations and fail to remedy the breach within five (5) Business Days after written notice to do so, or such longer period as agreed in writing between you and us;
(b) If you or your representatives instruct us to perform an act that is illegal, including but not limited to a breach of copyright or trademark.
(c) If in our reasonable opinion, you are abusive or aggressive to us or any of our representatives;
(d) If you fail to provide us with a substantive response to a request for information or materials that we request in order to perform the Services following three requests by us for such information or materials and 15 Business Days have lapsed.
(e) If you publish any Work In Progress, including on social media without our express written permission.
18.2. Both parties may terminate this Agreement upon written notice to the other party to the relevant address in the Schedule, for any reason by giving no less than twenty (20) Business Days prior written notice, terminating the Agreement.
18.3. Upon termination of this Agreement, in addition to an any outstanding invoices, we will issue you with a final invoice and you must pay us for Services rendered under these invoices including Inside-Scope Amendments exceeding the two allowed, as well as any Outside-scope Amendments.
18.4. If this Agreement is terminated during a Project or prior to the completion of a Project, subject to you paying our fees up to and including the date of termination, we agree to provide you with the most recent draft Deliverables which will become the Final Deliverables.
19.1. If a dispute arises in respect of this Agreement, the Creative Brief or the Project, before any proceeding can be commenced in a Tribunal or Court, the party claiming that a dispute has arisen must give the other party written notice setting out the dispute and allow 14 days’ notice for the other party to respond.
19.2. If after 14 days’ the dispute is not resolved then it must be referred to mediation and the costs of the mediation shall be paid by the parties equally. If the parties cannot mutually agree on a mediator within 7 days, then the parties must ask that the President of the Law Society of Queensland to appoint a mediator.
19.3. If the parties cannot mutually resolve the dispute at mediation or within 10 Business Days from the date of mediation, then either party may commence proceedings in a Tribunal or Court of competent jurisdiction in Queensland.
19.4. Nothing in this clause will prevent either party from seeking urgent interlocutory relief.
20.1. This Agreement is the entire agreement between you and us and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, in relation to this Agreement and Project.
21.1. You engage us as an independent contractor and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise between you and us.
22.1. If any part of this Agreement is found by a competent Court or Tribunal to be void or voidable, then that part is severed from this Agreement but without affecting the continued operation of the remainder of this Agreement.
23.1. The laws of the State of Queensland govern this Agreement and the Parties submit to the non-exclusive jurisdiction of the courts of that State.
24.1. Clauses 1, 8, 14 – 16, 19, 21 and 23 will remain in full force and effect following the expiry or termination of this Agreement.