Terms and Conditions


  • 1 DEFINITIONS AND INTERPRETATIONS

Definitions

In these terms and conditions:

Artwork means the artwork described in the Brief.

Artistic Content means all sketches, proofs, samples and paintings and materials provided by the Artist to the Client in relation to the creation of the Artwork.

Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.

Intellectual Property Rights means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of moral rights, copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.

Loss means any claim, damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.

  • 2 GENERAL

The Artist agrees to create the Artwork for the Client on the terms of this Agreement in a professional manner, with due care, skill and diligence.

  • 3 DELIVERY
  • The Artist will use all reasonable endeavours to achieve the milestones in the Artistic Brief. Any delivery time or milestone the Artist gives the Client is only an estimate.  The Artist is not liable to the Client for any Loss arising from late delivery.
  • 4 LOCATION

The Artist will attend the location to photograph, observe and paint the scene of the Artwork as described in the Artistic Brief. Any costs associated with the Artist’s travel and accommodation at the Location must be paid by the Client on the terms of the Artist’s Invoice and in accordance with clause 6.

  • 5 DELIVERY AND FREIGHT

Unless otherwise stated in the Artistic Brief:

  • the Artist will arrange for the freight of the Artwork to the Delivery Address at the Client’s cost; and
  • the Client bears all risk, expenses and taxes in connection with the Artwork from the point of despatch by the Artist; and
  • the Artist will not arrange insurance of the Artwork during freight; and
  • the price for the Artwork is exclusive of all freight and all freight and other carrier costs and any insurance associated with a delivery must be paid by the Client on the terms of the Artist’s Invoice and in accordance with clause 6.
  • 6 PRICE AND COSTS
    • The Artist will invoice the Client for the Artwork supplied in accordance with the Artistic Brief, or otherwise monthly.
    • For any work undertaken by the Artist which is outside of the scope of the Artistic Brief, the Artist is entitled to charge her hourly rates in place from time to time.
    • The Artist is entitled to be reimbursed for any out of pocket expenses reasonably incurred in connection with the performance of this Agreement.
    • The Client must pay all amounts due to the Artist (whether under these terms and conditions or otherwise) without set-off, deductions counter-claims or conditions and in available cleared funds.
    • If the Client owes any amount to the Artist (whether under these terms and conditions or otherwise), the Artist may suspend work, demand all monies owing as due and payable and set-off any amount against an amount the Artist owes the Client.
    • The Artist is not obliged to deliver the Artwork to the Client until paid in full.
    • Amounts stated in the Artistic Brief are GST (and any other applicable sales tax) exclusive. If GST (or any other applicable sales tax) is payable by the Artist, the Client must pay an additional amount on account of GST (and any applicable sales tax) at the same time as it pays the consideration for the
  • 7 CHANGE AND CANCELATIONS
    • Subject to clause 6(e) and 10, neither party may suspend or cancel performance of this Agreement without the consent of the other party.
    • Either party may request a change to any matter related to the Artwork, including the performance of any additional services by the Neither party will be obliged to accept any change request made by the other party.
    • If a change request is accepted, any matter identified in the relevant change request as being affected by that change request (e.g. the scope of the Artistic Brief) shall be deemed to be immediately amended in the manner specified in the change request.
  • 8 LIMITATIONS OF LIABILITYANDINDEMNITY
    • The Artist makes no express or implied warranties under these terms and conditions in relation to the Artwork.
    • To the maximum extent permitted by law, the Artist limits its liability for any Loss in connection with this Agreement, to the price of the Artwork.
    • To the maximum extent permitted under the Australian Consumer Law, the Artist’s liability for breach of a Consumer Guarantee, if the Consumer Guarantees apply at law, is limited to any one or more of the following, at the Artist’s election:
      • refund of the price of the Artwork; or
      • the supplying of the Artwork again.
    • Subject to this clause 8, the Client releases, indemnifies and holds the Artist harmless to the full extent permitted by law for any Loss whatsoever or howsoever arising in connection with the supply of the Artwork to the Client.
  • 9 INTELLECTUAL PROPERTY

Unless specified otherwise in the Artistic Brief, the Artist retains all Intellectual Property Rights in the Artwork and Artistic Content and may reproduce the Artwork and Artistic Content at its discretion.

  • 10 TERMINATION
    • Events of Default

Each of the following events is an Event of Default, namely:

  • if the Client fails to pay any amount due and payable under this Agreement on the due date for payment and such failure continues for more than 5 Business Days;
  • either party fails to perform or observe any of the covenants or provisions of this Agreement and (if capable of remedy) such default continues for more than 10 Business Days after notice from the non-defaulting party requiring remedy the breach;
  • either party dies or is insolvent.
  • Termination Rights

If an Event of Default occurs the non-defaulting party may at its option:

  • by proceeding by appropriate court action, either at law or in equity, enforce performance of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and / or
  • terminate this Agreement.

11       FORCE MAJEURE

The Artist will not be liable for any Loss incurred as a result of delay or failure to observe any of these terms and conditions due to an event of force majeure, being any cause or circumstance beyond the Artist’s control, During the continuance of an event of force majeure the Artist’s obligations under these terms and conditions will be suspended and will resume as soon as the cause of circumstance has ceased to have effect.

  • 12 General
    • This Agreement may only be varied in writing by the parties.
    • Except as required by law, the parties must not disclose to any person without the other’s prior written consent the existence of, or details in, this Agreement or any other information which is confidential and not otherwise in the public domain.
    • If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
    • All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
    • Clause 1, 6, 8, 9, 12 and any indemnities survive termination or expiration of this Agreement.

The Agreement is governed by and is to be construed in accordance with the laws applicable in Australia.