1)     In these terms and conditions, unless the context otherwise requires:

a)     the singular includes the plural and vice versa;

b)     a reference to a clause is a reference to a clause of these terms and conditions;

c)      a reference to a party to these terms and conditions or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;

d)     where an expression is defined, another part of speech or grammatical form of the expression has a corresponding meaning;

e)     a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period;

f)      GST means A New Tax System (Good and Services Tax) Act, 1999 (Cth)

2)     The scope of our services to you will be set out in an estimate or proposal.  We will not undertake tasks unless they are set out in any such statement or proposal or otherwise agreed in writing.  If there is any inconsistency, the terms of the estimate statement or proposal will take precedence over this agreement.

3)     You acknowledge that our services are as described in our estimate statement or proposal and may include marketing strategy, consulting and advice, marketing project management and execution, general marketing assistance, digital marketing, SEO, social media, PR, customer and employee communications, event management, graphic design, multimedia production, customer experience, product management, CRM management and web design and maintenance.

4)     You acknowledge and agree that we may refer You to third party service providers like Hubspot (third party) as part of providing our services to you. In exchange for us referring You to that third party, the third party may provide us with a financial incentive or benefit, which includes, but is not limited to, a commission on amounts paid by You to that third party or a once-off referral fee.

5)     Acceptance by you of an estimation or quote will constitute acceptance by you of these terms and conditions.

6)     For the purposes of this agreement, 1 business day will be the equivalent of 8 hours and is means a day on which banks are open for general banking business in the State or Territory in which our premises are located. Unless otherwise agreed, we will only provide our services to you on business days.

7)     In consideration of the services to be provided by us, you will pay our fees according to the payment schedules provided by us.  Unless otherwise agreed in writing, our services and payment schedules include but are not limited to monthly marketing retainers (paid one month in advance, for a minimum term of 3 months and terminable on 1 month’s written notice thereafter), marketing projects (to be paid in two instalments – 50% of agreed or estimated fee before commencement, and 50% on completion) or consulting charged at standard hourly rates (billed monthly). All invoices are payable within 7 days.  Graphic Design (and some other third-party services) may be charged 100% upfront. Payment is required prior to delivery for all print/signage/promotional merchandise/media production and other services/products supplied by third parties.

8)     We may charge interest on amounts not paid within 7 days.

9)     Once work has been approved to proceed no refunds will be provided if you change of mind or have a change of circumstances.

10)   If we provide you with proofs, you must check and provide us with notification of any errors in the proofs. You agree that we will not be responsible for any errors in the proof, which were not corrected by you before the order was completed. You will be responsible for all costs associated with fixing any errors.

11)   If we agree a fixed fee, and the scope of the work increases beyond the basis on which you originally instructed us, such work will be charged at our standard out-of-scope hourly rates of the particular staff involved with a minimum of $150 per hour plus GST, unless another arrangement is agreed. Where the out-of-scope work requires the Director(s) or senior managers of the business, the rate will be a minimum of $220 per hour plus GST. Additionally, overtime hours will be charged for out-of-scope work requested by the client and required to be done urgently or on weekends (to avoid confusion this is in addition to the standard out of scope hourly rates). We will provide you with the details of these hourly rates prior to completing any of this work. Fixed fee agreements will increase by CPI each year.

12)   Our disbursements include charges for services or products supplied by others. Unless otherwise agreed in writing, we will charge you the amount charged to us by others for such items plus an additional handling fee of 20%. 

13)   We may also charge you for services supplied by us which are not included in our agreed fees we reasonably consider are required to perform our services for you as well as associated costs of supplying such services.  Such services and associated costs may include (without limitation) any preliminary work performed at your request, printing, photocopying, scanning, telephone calls, faxes, postage, travel expenses, meals when travelling, design or creative work, third party images or intellectual property, web hosting or domain name fees.

14)   For any meetings held in person located more than 15km from Mordialloc, Victoria, we reserve the right to charge travel time to and from the meeting at an hourly rate of $100 per hour for the travel of distances above the 15km.

15)   If our bills remain unpaid, we may cease providing our services to you immediately upon notice. You agree to indemnify us for any costs or fees that we incur in order to have our bills paid by you.

16)   To the extent permitted by law, we are not liable for any loss, damage or liability directly or indirectly arising from or in connection with our services.  You waive any right to bring a claim arising from or in connection with our services. 

17)   You agree to indemnify us against any loss, damage, liability or cost that we incur, or any claim made against us by any third party (“Loss”), arising in connection with our provision of the Services, to the extent such Loss arises out of your breach of the warranty provided at clause 19).

18)   In the course of our engagement, you may disclose to us, and we may collect, information that is subject to privacy law or regulations, including Personal Information (as that term is defined in the Privacy Act 1988 (Cth) (“Privacy Act”). We note the following:

a)     We are committed to the transparent management of your Personal Information;

b)     To provide our services to you, we will need to collect certain personal information, which may include information submitted to us via our website;

c)      We agree to take all reasonable steps to protect your Personal Information in accordance with our privacy notice, located here: https://www.ebonysalt.com.au/privacy-statement ;

d)     We will use that information and disclose it to our affiliates, subcontractors, suppliers and contractors solely for the purpose of providing our services to you; and

e)     We will not disclose such information to other third parties without your approval, unless required by law.

19)   You warrant that in respect of any Personal Information provided by you to us, or received, accessed, disclosed or otherwise handled by us (or any of our subcontractors and personnel) in connection with the services you have obtained all necessary consents, authorisations and permissions required under all applicable privacy laws (including, if applicable, the Privacy Act) and you are lawfully entitled to provide such Personal Information to us and to authorise us to collect, use, disclose, and otherwise handle the Personal Information in connection with the performance of our services under these terms and conditions.

20)   You agree to notify us promptly in the event you believe or suspect that any Personal Information we have obtained has been the subject of unauthorised access, disclosure or loss in relation to such event. You further agree to provide us with reasonable assistance and information in relation to any such event.

21)   Ideas and concepts, including design concepts shown to you, remain our property and you must keep these confidential and not use any of these which have been communicated to you without our written consent.

22)   All materials provided by you, or materials concerning your business that are publicly accessible to us (“Client Materials”) will remain your property. You grant us a licence to use the Customer Materials in order to perform our obligations under this agreement or as required by law. You warrant that our use of the Customer Materials do not infringe any third party rights.

23)   Once completed we will provide you with final non-editable versions of the deliverables to be supplied under this agreement or as outlined in the estimate statement or proposal (“Final Deliverables”). We do not provide editable files (known as raw or source files), otherwise agreed by us in writing (where additional fees may apply).

24)   We agree that the intellectual property in the Final Deliverables (the “Developed IP”), will be assigned from us to you throughout the world in perpetuity upon payment in full by you of all our fees under this agreement.  However, you agree, the Developed IP does not include Our IP, Third Party IP, material not capable of being protected by copyright or other intellectual property rights, our internal notes, preliminary drafts, drawings, illustrations and designs, preliminary electronic works, draft deliverables which are rejected by you or inputs produced by us for AI Tools.

25)   We grant you a non-exclusive, worldwide, perpetual, royalty-free, sub-licensable and transferrable licence to use the intellectual property owned by, or licensed to us prior to this engagement, or created by us independently of the provision of the services under this agreement which are incorporated into the Final Deliverables (“Our IP”) solely as part of your use of the Final Deliverables. You must not adapt, reverse-engineer, sub-license, or otherwise use any of Our IP separate from the Final Deliverables.

26)   We may at our discretion (or at your request) incorporate intellectual property owned by third parties into the deliverables to be supplied under this agreement, such as images, fonts, source code, output of AI Tools (as defined below) and other third party materials (“Third Party IP”). Your use of the Third Party IP as part of the Final Deliverables is subject to terms imposed by the relevant third party owner (“Third Party Licences”). You will be responsible for maintaining and paying for all applicable Third Party Licences unless otherwise notified by us in writing.

27)   You acknowledge that we may (in our discretion) utilise artificial intelligence (“AI”) software (including generative artificial intelligence software) (“AI Tools”) in the course of providing the services and whilst we exercise reasonable care to ensure originality and compliance with third party intellectual property rights, the nature of AI generated content means we make no guarantee that any deliverables (including any Final Deliverables) will be free from any unlicensed Third Party IP.

28)   You consent to us uploading, reproducing, or otherwise using the Customer Materials in conjunction with AI Tools, provided such uses are solely for the purpose of providing the services under this agreement to you and provided we will not upload, reproduce or otherwise use an individual item of Customer Materials with AI Tools where you expressly advise us in writing that we are not permitted to upon, such obligation which shall commence upon your written notification to us.

29)   You warrant that you have all necessary rights, licences, and consents to provide your Customer Materials to us for use with AI Tools. You agree to indemnify us against any and all claims, liabilities, costs, and expenses (including legal fees on a full indemnity basis) arising from or in connection with any claim that our use of your Client Materials with AI Tools infringes the intellectual property rights or other rights of any third party.

30)   The terms and conditions of this agreement are severable. If any clause, or part thereof, of this agreement is determined by any court or other competent authority to be unlawful or unenforceable, the remainder of such clause and all other clauses will continue to apply.

31)   Unless otherwise agreed in writing, either party may terminate our engagement by giving one month’s written notice to the other.  If our engagement is terminated, you agree to pay our fees, disbursements and charge for services incurred up to termination and for any work that we are required to do after termination.

32)   Force Majeure. We will have no liability to you in relation to any loss, damage or expense caused by your failure to complete works or provide services as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, pandemic, the inability of our usual suppliers to supply necessary goods and services or any other matter beyond our control.

33)   Your continued instructions to us will confirm your acceptance of the terms and conditions of this agreement.

34)   These terms and conditions may change from time to time without notice, however, will be available on the Ebony & Salt website (www.ebonysalt.com.au) at all times.

35)   This agreement is governed by Victorian law. Any disputes relating to these terms and conditions shall be subject to the exclusive jurisdiction of the courts of Victoria.