Media Operandi | Terms and Conditions

TERMS AND CONDITIONS

These are the terms and conditions on which MEDIA OPERANDI (Media Operandi Pty Ltd) will carry out work for our clients. They will apply each time that you ask us to do work for you or carry out a Project. They set out our professional services and what you can expect from us. Please read them carefully.

1. Engagement

You may engage us to carry out a Project for you by:

(a) Accepting a quote in writing; or

(b) Giving us written or emailed authorisation to commence a project. Unless we notify you otherwise, we will accept that engagement subject to these terms and conditions. The Project will commence when we accept the engagement.

2. Quotes and Estimates

If we provide, or have provided, you with a quote for the project, then that quote:

(a) Is based on the Specifications and is subject to change if the parties agree to amend the Specifications.

(b) Does not include GST (unless otherwise stated); and

3. Content and Materials Supplied by You

(a) You must supply to us all content & images that will be used in the project, and all other content and materials we reasonably request (Client Content). You must supply all Client Content at or before the commencement of the project.

(b) You must supply all Client Content in the following digital formats:

Text/Tables/Copy: Microsoft Word or Microsoft Excel (in correct order);
Images: High resolution (300dpi JPEG files) for print
Diagrams/Maps: Vector format (Illustrator EPS/.AI).
We may charge additional costs if the Client Content is not provided in the appropriate format set out in this clause above.

Breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or
Compromise the security or operation of our computer systems, through a virus or otherwise.

(d) You indemnify, and agree to keep MEDIA OPERANDI, its directors, officers, and employees indemnified, against all Loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.

4. Use of Media, Images, Audio or Video

(a) The Fees do not include any purchases of photo images, audio or video.

(b) Stock images, audio or video may be used in the creation of the Project as elements. However, we purchase these under a specific license and are for restricted use only and may form part of the Project. They remain the intellectual property of the licensee from where they were purchased.

(c) Should you wish to use the stock images or stock vectors as elements exclusive to your brand, you will need to negotiate with the company directly for copyright and exclusive use. MEDIA OPERANDI is not responsible for ensuring you have done so.

(d) Any images which MEDIA OPERANDI has taken or produced whether it be via photographic, video capture or audio recording remain the intellectual property of MEDIA OPERANDI, if they form part of the Project, we license these to you under the assumption that they are only to be used for this specific Project. You may buy these files outright at an additional cost. (please contact us to determine the cost).

5. Scheduling and Production

(a) If we consider it to be necessary, we will develop production schedules for the Project in consultation with you. We will use reasonable commercial endeavours to carry out the Project in accordance with those production schedules.

(b) If you delay in providing Client Content or in providing feedback we request, then this may result in:

The delivery deadline changing; or
If the delivery deadline cannot be moved, extra costs being incurred, including necessary overtime costs. We will charge these extra costs as Additional Costs.
In the event that Media Operandi has been waiting on the supply of information to continue development of the project for a period of 21 days, Media Operandi will send a notice of delay and levy an invoice for the work carried out to date.

6. Corrections, Proofs and Alterations

(a) The Fees include provision for two sets of alterations (Proofs) by you to the artwork drafts we provide, which will result in us supplying two complete artwork drafts back to you.

(b) If you request further alterations, or the addition of new information after the second draft, resulting in any further drafts being supplied, the additional work will be charged as Additional Costs at our then current Professional Rates.

(c) The alterations referred to in paragraph (a) do not include a change to the Specifications or Parameters of the scope of the Project. If there are any changes to the Specifications after the Project has commenced, the additional work will be charged as Additional Costs at our then current Professional Rates.

(d) Where possible, we will attempt to provide you with an estimate of Additional Costs prior to undertaking the additional work. However, in some cases due to deadline constraints, this will not be possible and we may proceed with the work without providing an estimate.

7. Sign-off

(a) When we provide you with complete artwork drafts, and you do not request any further alterations, then you must notify us in writing that you accept the completed work.

(b) You will be deemed to have accepted the completed work if we do not receive from you, within 7 days after providing you with a completed artwork draft, either notice in writing of acceptance or requests for further amendments.

(c) Your acceptance of the artwork in accordance with paragraph (a) or (b) means that the Project is complete, and no further amendments are necessary.

8. Archiving / Retrieval

We will endeavour to store or archive all electronic files. However, we provide no guarantee that any stored or archived file can be retrieved in the future.

9. Couriers and Disbursements

Couriers and disbursement charges are not included in the Fees (unless otherwise stated). If we incur any disbursements or expenses in the course of the Project, we will charge these to you as Additional Costs.

10. Professional Liability

(a) If you are not a Consumer:

Our liability to you for any Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, whether or not you were aware of the possibility of such Loss to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;
The maximum amount you may claim from us for Loss suffered or incurred by you in connection with this agreement is limited to the aggregate amount of Fees which you have paid us at any time, less any amounts already paid out or due to be paid out by us to you for any reason; and

We are not liable for any

Indirect or consequential loss, or any loss of revenue, loss of profit, loss of business opportunity, or
Payment of liquidated sums, penalties or damages under any agreement sustained by you or any other
Loss, you suffer or incur by in connection with this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party; or
Loss, you suffer or incur due to factors outside our reasonable control.

(b) If you are a Consumer, our liability to you for failure to apply with any applicable Consumer Guarantee is limited to (at our election):

In relation to goods:

Replacing the goods or supplying equivalent goods (or paying the cost of either); or
Repairing the goods, or paying the cost of having the goods repaired;

In relation to services:

Resupplying the services to you; or
Paying the cost of having the services re-supplied.

(c) If you are a Consumer, our liability to you for all Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, other than a failure by us to comply with any applicable Consumer Guarantee, is limited as set out in paragraph (a) above.

(d) Paragraphs (b) and (c) do not apply:

In relation to a Title Guarantee;

To the extent that it is not Fair or Reasonable for us to rely on them; or
In relation to Consumer Goods or Consumer Services we supply to you.

(e) Any condition or warranty which would be implied by law as a term of this agreement is excluded.

11. Intellectual Property and supply of Raw / Editable files / Native Files

(a) All Artwork, and all other designs, artwork and materials used in the design and production of goods or works during the Project, remain our property. All Intellectual Property Rights in them and any other Intellectual Property Rights created during the Project vest in, or will upon their creation vest in, MEDIA OPERANDI.

(b) We grant you a non-transferable, non-exclusive licence to use and reproduce the Artwork, subject to the restrictions set out in paragraph

(c).

Modify or vary the Artwork in any way;
Adapt, create derivative works from or merge the Artwork;
Use the Artwork for any purpose other than the specific purpose or campaign for which we have provided it;
Reverse engineer, disassemble or decompile the Artwork;
Distribute, lend, resell, transfer, assign or sub licence the Artwork, or allow any other person to use it; and
Remove or attempt to remove any proprietary or copyright notices or any labels on the Artwork.

(d) If you want to modify or adapt the Artwork or use it for purposes other than the original purpose for which we provided it, then you must purchase from us the raw / editable /Native files for the Artwork. The supply of raw / editable / Native files is at our discretion. If you request, and we agree to supply raw / editable / Native files, you must pay Additional Costs to us for those raw / editable / Native files as we advise. These Additional Costs may be based upon a percentage of the original Quote or a retrieval and release fee (Additional Cost).

(e) Type fonts always remain the property of MEDIA OPERANDI or it’s licensors and are governed under licensing restrictions and rules.

(f) We do not warrant that your use of the designs, materials or content produced by us for you during the course of the Project will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights.

12. Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Quote. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.

(b) The obligation of confidence in paragraph (a) does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.

Provide a reasonable amount of notice to the other Party of the proposed disclosure;
Consult with the other Party as to the form of the disclosure; and
Take all reasonable steps to maintain such Confidential Information in confidence.

(d) Each party must take all steps and do all such things as may be necessary, prudent, or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

13. Calculation of Fees

These are the design files that a designer uses to create a project. They are the intellectual property of the designer. In some cases where your business has purchased these outright from another design firm, they can be supplied to us and used in the project. Think of them as the Architectural Plans for a building. Media Operandi however, does not supply native files as part of a design project, please see our terms and conditions for more details.

Do you do everything in-house?

(a) If the Fees are not specified (in a Purchase Order, Quote or otherwise) at the commencement of the Project, then we will charge you at the Professional Rates for all work that we carry out for you in the course of the Project.

(b) The Professional Rates may change from time to time. The new Professional Rates will apply from the date that we notify them to you.

(c) Travel time is not included in our quotations; however, we retain the right to charge or waiver this cost to you at our discretion.

(d) Our standard quotation allows for a pre project commencement design brief of approximately 30 minutes. Additional meetings outside of this scope will be charged at the hourly rate of those attending.

14. Payment and Invoicing

(a) You must pay the Fees and Additional Costs to us within 7 days after the date on which we issue you an invoice for those Fees and Additional Costs in accordance with this clause 14.

(b) All fees and invoices are payable as per schedule below;

50% of Fees (deposit) on commencement of the Project;
Balance of 50% of Fees upon delivery of Artwork Draft 2 to you;
We require all invoices to be paid in full before any print, publishing or production commences.
You may cancel the project at any time. However, after the first 48 hours of the deposit being received by us. The deposit is non-refundable after that time.
During our Project engagement should you decide to cancel a project for whatever reason, all works currently carried out shall be paid in full within 7 days.

15. GST

(a) Unless we expressly state otherwise, the Fees and Additional Costs do not include GST.

(c) If at any time we decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.

(d) we reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.

16. Duration of agreement and its termination

(a) Upon execution by both parties this agreement will take effect: immediately and remain in effect until the purpose of the Project has been achieved unless it is terminated earlier under this clause 16.

(b) A party may terminate this agreement by notice in writing to the other party if:

The other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within [14] days after receiving notice from the other Party to do so;
The other party commits a material breach of this agreement that is not capable of remedy (including a breach of clause 11 or clause 12); or
The other Party becomes Insolvent.

You do not provide any information or materials requested within a reasonable time after being asked to do so; or
We consider that mutual confidence and trust no longer exist.

(d) Upon termination of this agreement under paragraph (b) or (c):

Our obligation to carry out the Project ceases;
Each party’s rights and obligations accrued prior to termination are not affected;
The licence granted in clause 11(b) ceases; and
Each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record keeping obligations; and
Except as provided in this paragraph (d), clauses 3(c), 3(d), 10, 11, 12, 17 and 18 will continue.

17. General

(a) Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.

(b) This agreement does not create a relationship of employment, agency, or partnership between the parties.

(d) The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.

(e) If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.

(f) We may change this agreement from time to time, by notifying you of the changed terms and conditions. The new terms will apply to any Project that commences after the date that we notify you of the changed terms and conditions. Your engagement of our services after that date signifies your acceptance of the amended agreement.

18. Interpretation

In this agreement:

(a) A reference to “this agreement” means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);

(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;

(d) Words of any gender include all genders;

(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;

(f) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;

(g) A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;

(h) A reference to a party to a document includes that party’s successors and permitted assignees;

(i) A promise on the part of 2 or more persons binds them jointly and severally;

(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and

(k) Specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.

19. Dictionary

Additional Costs means all additional costs that we are permitted to charge you under this agreement.

Artwork means the artwork and designs we prepare for you in the course of the Project.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (QLD).

MEDIA OPERANDI, we or us means MEDIA OPERANDI Pty Ltd, ACN: 641071776, ABN: 71641071776, PO Box 2259 NORTH IPSWICH, QLD, 4305.

Claim means a demand, action or proceeding of any nature whether actual or threatened.

Client, you, or your means, in relation to any work that we do for you:

(a) The person named as the client in the Purchase Order or Quote;

(b) If there is no purchase order, then the person named as the client in the Quote; or

Client Content is defined in clause 3(a)

Confidential Information of a party:

(a) Means any information:

Regarding that party’s business or affairs;
Regarding that party’s customers, employees, or other people doing business with that party;
Which is by its nature confidential;
Which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
Which the other party knows or ought to know is confidential;

(b) Includes without limitation (unless excluded under paragraph (c)) that party’s Intellectual Property Rights and these terms and conditions; but

(c) Does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).

Consumer has the same meaning as in section 3 of the Australian Consumer Law.

Consumer Goods means “goods of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.

Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).

Consumer Services means “services of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.

Fair or Reasonable means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.

Fees means, in respect of a Project:

(a) The fees payable to us for the Project as set out in a Purchase Order or Quote; or

(b) If no fees are specified, fees for all work we do in the course of the Project calculated in accordance with clause 13. GST means a goods or services tax or similar tax levied in Australia.

Insolvent, in relation to a party, means that:

(a) The party has ceased or taken steps to cease to conduct its business in the normal manner;

(b) The party has entered into or resolved to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;

(d) A liquidator or provisional liquidator is appointed to the party, or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the party’s assets or undertakings;

(e) An application or order is made, or a resolution is passed for the winding up of the party; or

(f) An event similar to one in paragraphs (a) to (e) occurs in respect of the party in any non-Australian jurisdiction. Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:

(a) Copyright, patents, trademarks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and

(b) Any application or right to apply for registration of any of the rights referred to in (a).Loss means

Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction outside Australia. Project means, in relation to any work that we do for you:

(a) The project described in a Purchase Order;

(b) If there is no Purchase Order, the project described in a Quote;

(d) If there are no Specifications, then the work that you have asked us to do.

Purchase Order means a document issued (in writing or electronically) by us to you that sets out:

(a) The services that we will provided to you;

(b) The estimated times within which those services will be provided; and

Quote means a quote, estimate or proposal that we provide to you in respect of any work that you have asked us to do.

Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Project.

Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.