1. ACCEPTANCE
By accepting the proposal, the Client agrees that these Terms of Business shall apply to all Services provided to it by KOJO, whether or not the Client signs the Agreement.
2. BASIS OF AGREEMENT
The Client acknowledges that it is responsible for adequately identifying all issues which it seeks to address by asking KOJO to carry out the Services.
3. DEFINITION
a) Services means services as outlined in the project Estimate description
b) Deliverables are the final output files and raw footage as agreed
c) Proposal is the Estimate form with the project description and project costs.
4. KOJO OBLIGATIONS
KOJO will:
a) perform the Services with due professional care and skill; and
b) use its best endeavours to deliver the Deliverables by the dates set out in the proposal but will not be liable for any loss, damage or expenses incurred by the Client as a result of any delay.
5. PAYMENT
Payment terms are strictly NET 14 days of Invoice date unless, otherwise stipulated.
5.1 The Client must pay KOJO:
a) the fee as set out in this estimate together with any amounts in respect of GST and any disbursements charged to KOJO on the Client’s behalf.
b) interest on all outstanding amounts calculated at a rate equivalent to current overdraft rate of the Commonwealth Bank of Australia at the time of the due date for payment until the date payment is made.
5.2 The Client may not set off or deduct any amounts which the Client claims is payable to it against any amounts due to KOJO under this Agreement.
5.3 Any discounts offered are based upon meeting our agreed payment terms and are provided on the basis of cash payment. Any discounts applied to the services are based on the package proposed. Discounts may be reviewed if elements of this proposal are added or deleted.
6. OWNERSHIP AND RIGHTS TO USE DELIVERABLES
6.1 In this Agreement, ‘IPR’ means all intellectual property rights, including:
a) know-how including original concepts, technical skills and expertise;
b) patents, copyright, registered designs, trademarks, and any right to have confidential information kept confidential; and
c) any application or right to apply for registration of any of the rights referred to in (a) or (b).
6.2 Each party retains ownership of any IPR, software and materials it provides to enable the Services to be carried out.
6.3 KOJO owns all IPR created in carrying out the Services, including without limitation, all IPR subsisting in any software source code used or developed to provide the Services.
6.4 In consideration of payment received under this Agreement KOJO grants to the Client a non-exclusive perpetual license to use any of KOJO’s pre-existing IPR.
7. CLIENT INFORMATION AND MATERIALS
7.1 Client warrants that all information and materials provided to KOJO in relation to the Services:
a) is accurate and complete;
b) will be provided in sufficient time so as to permit KOJO to carry out the Services in accordance with the Proposal; and
c) does not infringe the IPR of any person.
7.2 It is the policy of KOJO to decline or suspend involvement in any project that contravenes the ‘Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 – Act No. 90/1995’ relating to ‘Objectionable Film’. As a part of confirming our involvement in this production, we require notification of any scenes that may involve explicit sexual acts or excessive violence. This may affect the scheduled time for Services and the staff involved.
8. CONFIDENTIAL INFORMATION
8.1 Each party must in relation to the Confidential Information of the other party: keep it confidential;
a) use it only as permitted under this Agreement and only disclose it to employees, contractors, agents and visitors who have a need to know;
b) promptly comply with any request by the disclosing party to return or destroy all copies of Confidential Information unless required by law to be retained.
9. WARRANTIES AND LIABILITY
9.1 To the extent permitted by law, KOJO:
a) excludes all terms, conditions and warranties implied by custom, the general law or statute; and
b) limits its liability to the Client for breach of any non-excludable warranty, at KOJO’s option, to re-performing the relevant part of the Services or paying the cost of having the relevant part of the Services re-performed. The total liability of KOJO for loss or damage of every kind with respect to the performance of its obligations under this Agreement is limited to the total amount paid to KOJO under this Agreement.
9.2 The Client:
a) assumes all risk for any loss or damage resulting directly or indirectly from the Client’s use of the Deliverables; and
b) shall indemnify and keep indemnified KOJO from any claims, damages, injury, losses or costs KOJO may sustain, arising directly or indirectly from the provision of the Services to the Client under this Agreement.
10. VARIATION AND CANCELLATION OF THE SERVICES
10.1 Where the Client wishes to vary or postpone the Services which will result in additional or lost costs to KOJO, the Client agrees that the Fees will be increased by an amount equivalent to the additional costs that will be incurred by KOJO to vary or postpone the Services including, without limitation, the costs and expenses associated with the reservation and/or hire of staff, equipment and venues.
10.2 Any changes to the requirements of the proposal/project may change the delivery date.
10.3 Where the Client cancels the Services at any time after acceptance of the Proposal, it agrees to pay
a) KOJO a minimum 25% cancellation fee of the total estimate if the Services is cancelled or postponed after the project is awarded; and/or
b) if the Services are cancelled any time before deliverables, then the Client will need to pay KOJO all third party costs and Services performed to date.
c) KOJO agrees that the amount of claim limits the Client’s liability to KOJO for any loss or damage KOJO suffers if the Services are cancelled.
11. END OF AGREEMENT
This Agreement will end:
a) when KOJO has provided the Deliverables to the Client and the Client has made all payments due under clause 4; or
b) if either party ends it, which it can do immediately by giving notice to the other party if the other party breaches any provision of this Agreement and fails to remedy the breach within 30 days of receiving notice requiring it to do so.
12. AFTER THE END OF THE AGREEMENT
a) unless the Client has ended the Agreement as a result of breach by KOJO, the Client must pay KOJO for work done and expenses incurred up to the end of the Agreement; and
b) the following clauses survive: clauses 5 (Ownership and Rights to use Deliverables), 7 (Confidential Information) and 8 (Warranties and Liability).
13. GENERAL
13.1 This Agreement:
a) records the entire agreement between the parties and supersedes all earlier agreements and representations by the parties about its subject matter;
b) is governed by the law of each respective State of Australia; and
c) may only be altered in writing signed by both parties.
13.2 If there is any inconsistency between provisions then the order of precedence shall be:
a) Special Conditions (if any);
b) Terms of Business;
c) Proposal;
d) any attachments.