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  • Designer Agreement Attachment A

Attachment A

Designer Agreement Terms and Conditions


Article 1 - NO EMPLOYMENT:

Neither party is by virtue of the Agreement authorized as an agent, employee, or legal representative of the other. Neither party shall have the power to control the activities and operations of the other and the status of both parties at all times will continue to be that of an independent contractor relationship.


Article 2 - NO LOCATION RESTRICTIONS:

Venue shall not be permitted to place any location restrictions on Designer. Designer does not use any equipment, including electronic equipment, owned by Venue and the Designer does not maintain any equipment at Venue's place of business. Designer may work anywhere Designer chooses.


Article 3 - NO SPECIFIC HOURS:

Venue may not control the hours or timing that Designer works. There is no expectation that Designer works full-time hours.


Article 4 - SUBDESIGNERS:

Designer shall not be permitted to use sub-Designers in the provision of Services to Venue. Designer was hired specifically for Designer's own skill set and may not outsource any work.


Article 5 - EXPENSES:

Designer shall be solely and exclusively responsible for any expenses incurred by the Designer under the Agreement. Venue shall have no part of paying or reimbursing expenses.

Example Expenses include: Adobe Creative Cloud subscription costs or computer maintenance costs.  


Article 6 - INTELLECTUAL PROPERTY:

Designer agrees that all work-product. designs, inventions, trade secrets, and confidential and/or proprietary information conceived, created or developed by Designer which is related to the Venue's actual business or research and development or developed, made, or discovered by Designer in the course of the performance of Designer's duties for the Venue, i.e. anything created through the provision of the designer Services, shall be the property of the Venue. Designer hereby assigns to the Venue the entire right, title, and interest in and to all work created and in and to all proprietary rights therein or based thereon including without limitation any and all copyrights, patents, trademarks, or other intellectual property rights relating to all work.

Nothing contained in this provision shall limit the ability of the Designer to use any designs created for this agreement in the Designer's own portfolio, after such designs have been made public by the Venue and the Venue has provided written consent. Designs created for this agreement and used in the Designer’s portfolio must only be used for advertising purposes. All desires for the design to be purchased must be directed to the Venue.


Article 7 - CONFIDENTIALITY:

Designer hereby acknowledges and agrees that Venue possesses certain non-public Confidential Information (as hereinafter defined) and may also possess Trade Secret Information (as hereinafter defined) (collectively the "Proprietary Information") regarding their business operations and development. The Parties agree that the Proprietary Information is secret and valuable to Venue and that Designer may have access to the Venue's Proprietary Information. Each of the Parties desires to maintain the secret and private nature of any Proprietary Information given.

Confidential Information refers to any information which is confidential and commercially valuable to Venue. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs or other oral or written knowledge and/or secrets and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property and/or finance or any other information which is confidential and commercially valuable to Venue.

Confidential Information may or may not be disclosed as such, through labelling, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed.

Confidential Information shall not mean any information which:

  1. I) is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of Designer;
  2. II) is already known, through legal means, to Designer;

III) is given by Venue to third parties, other than Designer, without any restrictions;

  1. IV) is given to Designer by any third party who legally had the Confidential Information and the right to disclose it; or
  2. V) is developed independently by Designer and Designer can show such independent development.

"Trade Secret Information" shall be defined specifically as any formula, process, method, pattern, design or other information that is not known or reasonably ascertainable by the public, consumers, or competitors through which, and because of such secrecy, an economic or commercial advantage can be achieved.

Designer hereby agrees to:

  1. I) Not disclose the Proprietary Information via any unauthorized means to any third parties throughout the duration of the Agreement and the Parties' relationship with each other;
  2. II) Not disclose the Confidential Information via any unauthorized means to any third parties for a period of 3 (three) years following the termination of the Agreement;

III) Not disclose the Trade Secret Information forever, or for as long as such information remains a trade secret under applicable law, whichever occurs first, to any third party at any time;

  1. IV) Not use the Confidential Information or the Trade Secret Information for any purpose except those contemplated herein or expressly authorized by Venue.



 

Article 8 - WARRANTIES:

The Designer represents and warrants that it will perform the Services using reasonable care and skill for a Designer in their field and that any results, end products, or materials given by the Designer to the Venue under the terms and conditions of the Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.


Article 9 - LIMITATION OF LIABILITY:

Except in cases of death or personal injury caused by either Party's negligence, either Party's liability in contract, tort or otherwise arising through or in connection with the Agreement or through or in connection with the completion of obligations under the Agreement shall be limited to Fees paid by the Venue to the Designer.

To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business.

 


Article 10 - INDEMNITY:

Venue hereby agrees to indemnify Designer against any and all damage, liability, and loss, as well as legal fees and costs incurred, as a result of the Services rendered under the Agreement or any transaction or matter connected with the Services or the relationship between Designer and Venue arising out of the fault of Venue. This clause shall not be read to provide indemnification for any Party in the event that a competent court of law, rendering a final judgment, holds that the bad faith, gross negligence, or wilful misconduct of the Party caused the damage, liability, or loss.


Article 11 - TERMINATION:

This Agreement shall terminate as follows:

At such time that all the designs created in the Agreement are sold and payments have been completed.

This Agreement may also be terminated by either Party, upon notice in writing:

  1. a) if the other Party commits a material breach of any term of the Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not;
  2. b) if the other Party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform;

No on-going relationship between the Parties is contemplated and Venue may not assign additional work to Designer. The Parties may decide, through an addendum to this Agreement, to expand the scope of Services, but such Agreement may only be in writing and with explicit terms.

 

Article 12 - DISPUTE RESOLUTION

If a dispute between the parties arises out of or in connection with the Agreement, either party may issue to the other party a Notice of Dispute outlining the details. Within 7 days after receiving a Notice of Dispute, the parties shall confer at least once to resolve the dispute or agree on methods of doing so. All aspects of any such conference/s except the fact of occurrence shall be privileged. If, after 35 days from the date of the Notice of Dispute, a resolution cannot be reached, the dispute shall be referred to arbitration which shall be held and conducted in New South Wales.

 

 


Article 13 - GENERAL PROVISIONS:

  1. a) GOVERNING LAW: the Agreement shall be governed in all respects by the laws of the state of New South Wales and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the state of New South Wales. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.
  2. b) LANGUAGE: All communications made or notices given pursuant to the Agreement shall be in the English language.
  3. c) ASSIGNMENT: The Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party.
  4. d) AMENDMENTS: The Agreement may only be amended in writing signed by both Parties.
  5. e) NO WAIVER: None of the terms of the Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written Agreement can constitute waiver of any of the terms of the Agreement between the Parties. No waiver of any term or provision of the Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of the Agreement shall not constitute waiver of such term or any other term.
  6. f) SEVERABILITY: If any provision or term of the Agreement is held to be unenforceable, then the Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend the Agreement as provided herein, the invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in the Agreement.
  7. g) ENTIRE AGREEMENT: The Agreement constitutes the entire Agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
  8. h) HEADINGS: Headings to the Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of the Agreement.
  9. i) COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single Agreement. If the dates set forth at the end of this document are different, the Agreement is to be considered effective as of the date that both Parties have signed the Agreement, which may be the later date.
  10. j) FORCE MAJEURE: Designer is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
  11. k) NOTICES ELECTRONIC COMMUNICATIONS PERMITTED: i) Any notice to be given under the Agreement shall be in writing and shall be sent via e-mail, to the address of the relevant Party set out at the head of the Agreement or other address as that Party may from time to time notify to the other Party in accordance with this clause.

Notices sent as above shall be deemed to have been received at 5pm the next working day after sending (in the case of e-mail).

In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.

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