Blockhead Standard Terms and Conditions of Service

1. Definitions
1.1 In this Agreement:
Agency means Blockhead VFX Pty Ltd (NZ Company No. 6090707; ABN 14 615 291 677), with its assigns.
Agency IP means Intellectual Property Rights in any content or materials (if any) of any nature created by or on behalf
of the Agency which are not created for the Client as part of the Services, or are not specifically related to the Services,
and which form part of the Agency’s know how, techniques, methodologies, service concepts or operational assets,
proprietary technology, proposals, reusable code, scripts, libraries, and templates.
Agreement means the agreement formed as contemplated by clause 2 below between the Agency and the Client,
comprising these Terms and Conditions of Service and the accompanying Estimate.
Client means the person or entity to whom the Estimate is addressed.
Client Materials means any content or materials of any nature provided by the Client to the Agency for incorporation in
the Delivery Materials or in connection with the provision of Services.
Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient)
or otherwise obtained by the Recipient, whether before or after the execution of these terms that (a) is by its nature
confidential; (b) is designated by the Discloser as confidential; or (c) the Recipient knows or reasonably ought to know is
confidential, and includes the terms of this Agreement.
Delivery Materials means all products and proceeds of the Services delivered to the Client.
Estimate means the scope of work and fee estimate document which accompanies these Terms and Conditions of
Service.
Estimated Fee means the total estimated cost, as set out in the Estimate.
Fee means the total actual cost, as determined upon the viewing of an approved offline.
Insolvency Event in relation to the Client means:
(a) in the case of a Client who is a natural person, bankruptcy proceedings are commenced or threatened against the
Client, or the Client is declared bankrupt;
(b) any step is taken to enter any scheme of arrangement between the Client and its creditors;
(c) any step is threatened or taken by a mortgagee to take possession or dispose of the whole or any part of the Client’s
assets or business;
(d) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, an administrator
or other like person to the Client;
(e) the Client suspends or threatens to suspend payment of its debts generally;
(f) the Client is or becomes unable to pay its debts when they are due or a party is or is presumed to be insolvent for
the purposes of any provision of the Corporations Act 2001 (Cth); or
(g) anything in the nature of (a) to (f) happens to the Client.
Intellectual Property Rights means all industrial and intellectual property rights of whatever nature throughout the
world conferred under statute, common law or equity, whether existing now or at any time in the future, and includes
rights in respect of or in connection with copyright, designs, inventions (including patents), formulae, databases,
business processes and methods, trade marks, service marks, business names, trade names, domain names, designs,
confidential information, trade secrets and know-how and similar industrial and intellectual property rights, whether or
not registered or registrable, and includes the right to apply for or renew the registration of such rights.
Services means the services set out in the Estimate, and any other services supplied by the Agency to the Client which
the parties agree in writing.
Term has the meaning given to in clause 2.4.
Third Party Materials means any content or materials (if any) of any nature licensed by the Agency from a third party
and included in the Delivery Materials.
1.2 A term which is defined in the Corporations Act 2001 (Cth) or the Copyright Act 1968 (Cth) has the same meaning in
this Agreement.
2. Formation of Agreement and Term
2.1 If the Client delivers to the Agency a copy of the Estimate that is executed by Client, or otherwise gives the Agency
instructions to proceed with providing the Services, the Client accepts the Agency’s offer to provide the Services on the
terms and conditions of this Agreement.
2.2 The terms set out in this Agreement are the only terms that apply to the Estimate and the Agency’s services to
be provided under it. The Client cannot impose further or different terms, such as in a purchase order or similar
communication. The Agency’s offer to provide the Services on the terms set out in this Agreement remains open for
acceptance for the period set out in the Estimate or, if there is no period set out in the Estimate, 30 days from the date
the Estimate is provided to the Client.
2.3 These Terms and Conditions of Service will prevail to the extent there is any inconsistency between these Terms and
Conditions of Service and the Estimate.
2.4 The term of this Agreement commences on the “Project Start Date” set out in the Estimate and expires upon completion
of the Services, unless terminated earlier in accordance with this Agreement (Term).
3. Services
3.1 The Agency will provide the Services to the Client in accordance with the terms of this Agreement.
3.2 Subject to clause 3.3 below, the Agency will use reasonable effort to provide the Services to the Client in accordance
with the Estimate.
3.3 The Client will approve animation/CG in accordance with the Approvals Schedule (or otherwise as mutually agreed upon
acceptance of the Estimate). Once an approval has been given, any further changes will incur additional cost.
3.4 The Agency will have no liability whatsoever to the Client if the Agency fails to provide any element of the Services by the
relevant due date as a result of any act or omission by the Client.
3.5 Any services listed under ‘Out of Scope’ in the Estimate will be additional at additional cost and charged on an
hourly basis.
3.6 The Services are provided for the Client’s benefit only. The Agency relies on the Client’s instructions in providing the
Services. Where the Services include elements such as advice, opinion, procedures, instructions, guidelines or strategic
planning, such elements are provided solely in relation to the matter or project which is expressly the subject of the
Estimate. The Client relies solely on its own skill and judgment in entering this Agreement and acquiring the Services
and using the Delivery Materials. The Client has not received nor relied upon any promise, representation, guarantee,
warranty or undertaking in relation to the Services or the Delivery Materials, except as expressly set out in this
Agreement.
3.7 Any materials and/or files provided to the Agency by the Client is done so at the Client’s risk. The Agency will not be
held responsible for any damage, loss or destruction of such materials and/or files. All such materials and/or files will be
deleted or destroyed upon delivery of the Delivery Materials.
3.8 The Agency will only keep the Delivery Materials (and any rushes) on file for 7 days from delivery. Any revisions or
changes requested after this time will incur a further restoration fee.
4. Fees and payment
4.1 The Client must pay to the Agency 50% of the Estimated Fee on acceptance of the Estimate, followed by a second 25% at midway through the project and the balance of the Fee
(being the Fee minus the 75% already paid) on the completion of the Services.
4.2 The Estimated Fee is an estimate of costs only, and is subject to change.
4.3 If the Client does not pay the Agency the Fee by the date on which the Fee falls due, the Fee will incur interest at a rate
of 10% per annum, calculated daily and compounding monthly.
4.4 Any exchange rates applied in the Estimate are sourced from www.googlefinance.com, and are correct as at the time of
generating the Estimate.
4.5 Any consideration (including payments) under this Agreement are stated as exclusive of GST and all applicable taxes,
charges and levies. If any GST is payable in respect of any payment made under this Agreement, the final amount
payable will be increased by the amount of such GST, provided that: the payer is registered for the purposes of GST; and
the payee provides the payer a GST compliant invoice.
4.6 The Client must make all payments under this Agreement in full without deduction, counter-claim or set-off to the Agency’s nominated bank account, within the dates specified on the invoice.
4.7 Unless the parties agree otherwise in writing, any services provided by the Agency to the Client outside of the scope of
work set out in the Estimate will be charged to the Client at the Agency’s then-current hourly rates and other ordinary
charges.
4.8 Subject to clauses 7.4 and 7.5, the Client must pay the full Estimated Fee to the Agency where the Client cancels this
Agreement any time after accepting the Estimate.
5. Intellectual Property
5.1 Unless otherwise expressly set out in the Estimate, until the Fee is paid in full, all right, title and interest (including
Intellectual Property Rights) in the Agency IP and the Delivery Materials belong to the Agency now (if such rights already
exist) or upon creation (if such rights arise later). Upon payment of the Fee in full, all right, title and interest (including
copyright) in the Delivery Materials (excluding in any of the Agency IP and any Third Party Materials incorporated in the
Delivery Materials) is assigned automatically to the Client.
5.2 The Agency has procured, or will procure, and will provide to the Client on request, all necessary moral rights consents
from natural persons who are the authors of any Delivery Materials licensed or assigned to the Client for use in
connection with the Services under this Agreement.
5.3 Except as expressly agreed otherwise by the Agency in writing or as expressly set out in the Estimate, the Agency
licenses the Third Party Materials and the Agency IP to the Client for the sole purpose of using the Third Party Materials
and the Agency IP as incorporated in the Materials.
5.4 The Client grants the Agency the right to use, reproduce, adapt, communicate and exhibit the Client Materials for the
purposes of providing the Services and creating the Delivery Materials.
5.5 The Client represents and warrants to the Agency that it has the right to grant the rights granted under clause 5.4 above
and that the Agency’s use of the Client Materials in accordance with this Agreement will not infringe any third party’s
Intellectual Property Rights or other rights.
5.6 The Client indemnifies the Agency against all losses, liabilities, damages and claims, and all related costs and expenses
(including all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest
and penalties) arising from any breach of any term of this Agreement by the Client, or from any breach of the warranty
given by the Client under clause 5.5 above.
5.7 The Agency can describe the Services, and (subject to the Client’s approval of the material selected for such use) can
use images of designs or photographs of designed elements and extracts of other public-facing Delivery Materials
produced for the Client in the course of the Services, or for “portfolio” use in connection with the promotion of the
services of the Agency, in any media or format, in perpetuity, for no fee.
5.8 The Agency is under no obligation to the Client to:
(a) search, register or advise on the prospects of registration of any brands, business names, trademarks, logos or
designs forming part of the Delivery Materials;
(b) secure, register, advise on the prospects of registration, or maintain the registration of any URLs or domain names;
(c) update, maintain, or advise on or procure for the Client any software incorporated in the Delivery Material or which the
Client requires for the use of the Delivery Materials; or
(d) keep or store any Delivery Materials, Client Materials, or any other files or records relating to the Services. The Agency
is not a bailee of any property delivered to the Agency by or on behalf of a Client.
5.9 Without limiting clause 5.8, the Client is solely responsible for the clearance and registration of all trade marks, trade
names, titles, service marks, logos, business names, trade names, domain names, and designs incorporated in the
Client Material, and any such names, marks or devices required to be cleared or registered in relation to the Services
and all due diligence associated with the selection of a particular mark or design. The Agency relies exclusively on the
instructions and representations of the Client in relation to any such clearance or registration. The Agency will have no
liability for any loss, claim, damages or costs arising in connection with any such requirement of clearance or registration.
6. Liability
6.1 To the maximum extent permitted by law, except as expressly set out in the Estimate:
(a) the Agency makes no representations or warranties to the Client;
(b) the Agency hereby excludes all representations, warranties, terms and conditions whether express or implied (and
including without limitation, those implied by statute, custom, law or otherwise);
(c) the Agency’s cumulative liability to the Client for all claims made by the Client under or in relation to this Agreement
will not exceed in aggregate the Fee amount paid by the Client to the Agency;
(d) neither the Agency now any of its directors, officers, employees, or related bodies corporate will be liable to the Client
in respect of any claim for any loss of profit, data, goodwill or business, for interruption to business, for any failure to
realise anticipated savings or for any consequential, indirect, special punitive or incidental damages.
6.2 Certain legislation may imply warranties or conditions, impose obligations or give statutory guarantees (together,
Statutory Provisions) which cannot be excluded, restricted or modified except to a limited extent. This Agreement must
be read subject to the Statutory Provisions. If the Statutory Provisions apply, notwithstanding any other provision of this
Agreement, to the extent to which the Agency is entitled to do so, the Agency limits its liability in respect of any claim to:
(a) in the case of goods, at the Agency’s option:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of having the goods repaired; and
(b) in the case of services, at the Agency’s option:
(i) the supply of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
7. Suspension of Services and Termination
7.1 Without limiting any of the Agency’s other rights, the Agency may suspend the provision of some or all of the Services if
the Client does not make payment as required under this Agreement.
7.2 The Agency will have no liability to the Client if the Agency suspends the Services under clause 7.1 above.
7.3 The Agency can terminate this Agreement with immediate effect by written notice to the Client if:`
(a) the Agency becomes aware that the Client Materials infringe or may infringe a third party’s Intellectual Property
Rights or other rights;
(b) the Client commits a breach of this Agreement that is remediable and fails to remedy the breach within 7 days of
written notice from the Agency requiring the Client to do so;
(c) the Client commits a breach of this Agreement that is incapable of remedy; or
(d) the Client undergoes an Insolvency Event.
7.4 The Client can terminate this Agreement with immediate effect by written notice to the Agency if:
(a) the Agency commits a breach of this Agreement that is remediable and fails to remedy the breach within 7 days of
written notice from the Client requiring the Agency to do so;
(b) the Agency commits a breach of this Agreement that is incapable of remedy; or
(c) the Agency undergoes an Insolvency Event.
7.5 If this Agreement is terminated for any reason or upon its expiry:
(a) every payment to be made by the Client to the Agency in relation to works undertaken by the Agency or its
contractors up to the date of termination becomes due and payable to the Agency on the date of termination;
(b) clauses 5 (Intellectual Property), 6 (Liability), 8 (Confidentiality), 9 (General), and this clause 7 (Suspension of Services
and Termination) survive termination or expiry of this Agreement.
8. Confidentiality
8.1 When a Recipient receives Confidential Information, the Recipient must:
(a) keep the Confidential Information confidential;
(b) only use the Confidential Information for the purposes of this Agreement; and
(c) not disclose the Confidential Information, except to its officers, employees, agents, contractors or advisors who:
(i) have a need to know that information for the purposes of this Agreement (and only to the extent that each has a
need to know); and
(ii) have agreed to keep the Confidential Information confidential on terms substantially identical to this clause 8.
8.2 The Recipient’s obligations in clause 8.1 do not apply to the extent (if any) that:
(a) the Confidential Information is or becomes generally available to the public (other than through a breach of an
obligation of confidence arising from this Agreement);
(b) the Recipient can prove by contemporaneous written documentation that the Confidential Information was already
known to it at the time of disclosure pursuant to this Agreement (unless such knowledge arose from disclosure of
information in breach of an obligation of confidentiality);
(c) the Confidential Information has been independently acquired from a source other than the Discloser; or
(d) the Recipient is required by law to publicly disclose the Confidential Information.
8.3 The Recipient:
(a) will, always, remain liable for all acts of its officers, employees, agents, contractors or advisors to whom it discloses
the Confidential Information; and
(b) retains the onus to prove that any exclusion set out in clause 8.2 applies in relation to Confidential Information.
8.4 The Recipient must immediately on demand, or on the expiration or termination of these Terms, return to the Discloser
any documents in its possession, power or control containing Confidential Information. The Recipient must not retain
copies of any Confidential Information in any form.
8.5 All the obligations of confidentiality set out in this Agreement continue in full force and effect after this Agreement ends.
9. General
9.1 The Agency can subcontract the provision of all or part of the Services, provided that the Agency maintains supervision
over the subcontracted element of the Services.
9.2 A party can only assign this Agreement or a right under this Agreement with the prior written consent of the other party.
However, notwithstanding any other provision of this Agreement, the Agency can assign the benefit of this Agreement to
any of its related bodies corporate, without the Client’s prior consent.
9.3 This Agreement constitutes the entire agreement between the parties in connection with its subject matter and
supersedes all previous agreements or understandings between the parties in connection with its subject matter.
It can only be amended in writing, signed by both parties.
9.4 This Agreement can be executed by electronic communications and in any number of counterparts and all such
counterparts taken together will constitute one instrument. Each party consents to the other party executing its
counterpart by affixing a digital or electronic signature, and a party is entitled to assume that a digital or electronic
signature affixed to this Agreement has been affixed by the person who is named as the signatory.
9.5 If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it must, if possible,
be read down for the purposes of that jurisdiction so as to be valid and enforceable. If, however, the whole or any
part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or
unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of
that provision in any other jurisdiction.
9.6 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.
A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or
another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving
the waiver.
9.7 The relationship of the Agency and the Client will at all times be one of principal and independent contractor.
This Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
9.8 This Agreement will be governed by and construed in accordance with the law for the time being in force in New South
Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State