The following conditions are the standard terms of engagement of Mochi Marketing. Except where agreed in writing, these terms apply to all Services undertaken by Mochi Marketing and its agents. These terms prevail where inconsistency exists between these terms and any other documentation.
Please take time to read through our Terms and Conditions thoroughly and ensure you understand them before you commence a project with us. By requesting designs and/or services from Mochi Marketing you agree to our Terms and Conditions and you are aware that you are entering a binding contract – payment is required.
The below conditions have been construed under Australian Law and apply to all individuals, businesses or companies (Client/s) engaging the services of Mochi Marketing, its contractors, subcontractors and employees (the Company) unless otherwise agreed to in writing by both parties.
1.0 General Conditions of Contract:
1.1 These Terms and Conditions cover all Contracts entered into by a Client with the Company for services relating to design, printing, copywriting, visual media, websites, brand identity, illustrations, images and photography (Artwork).
1.2 These Terms and Conditions are subject to change without notification by the Company.
1.3 These Terms and Conditions apply to the Company and all of its contractors and subsidiaries.
1.4 A payment of a Deposit or Material costs is deemed an acceptance of our Terms and Conditions.
2.0 Project(s) Approval:
2.1 Quotations are valid for 30 days from date on Marketing Proposal unless otherwise stated. Quotations may be subject to change if additional work is required.
2.2 A schedule of Deliverables will be specified in the agreed Marketing Proposal. All turnaround time quotations are estimates and are based on calendar working (business) days. No quoted printing, artwork or delivery dates are guaranteed and may vary.
2.3 The Client, within ten (10) business days of receipt of any deliverable, shall notify The Company, in writing, of any failure of such deliverable to comply with proposed specifications, or of any other objections. In the absence of such notice from the Client, the deliverable shall be deemed accepted.
2.4 Unless otherwise provided for in any proposal, the Client shall pay additional charges, on a time and materials basis, for changes requested by the Client which are outside the scope of the services proposed. The Company reserves the right to extend or modify any delivery schedule or deadline as may be required by such changes.
3.0 Client Responsibilities:
3.1 The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
3.1.1 Coordination of any decision-making with parties other than The Company;
3.1.2 Provision of client content in a form suitable for reproduction or incorporation into the deliverables without further preparation, unless otherwise expressly provided for in the proposal; and
3.1.3 Final proofreading.
3.2 The Client shall review deliverables within any time frame identified for such reviews and to promptly either:
3.2.1 Approve the deliverables in writing or
3.2.2 Provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to The Company.
3.3 The Client acknowledges and agrees that The Company’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to a proposal and that any delays in the Client’s performance or changes in the services or deliverables requested by Client may delay delivery of the deliverables.
3.4 In the event that the Client has approved deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
3.5 During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this agreement, the Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, or any other kind of basis, any employee or agent of The Company, whether or not said person has been assigned to perform tasks under this agreement.
3.5.1 In the event such employment or consultation occurs, the Client agrees that The Company shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with the Client, or (b) 25 percent of fees paid to said person if engaged by the Client as an independent contractor.
3.5.2 In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for the Client.
3.5.3 The Company, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law.
4.0 Our Fees & Deposits:
4.1 Our services require a full upfront payment unless stated otherwise. Payment will be made in instalments as outlined below.
4.2 A Deposit of 50% of the total Service Cost payable under our agreement is due immediately upon request of Services/Work. A Deposit invoice will be generated and delivered to client via email and payment is expected within 7 days. By remitting Deposit funds to the Company, the Client is accepting the Terms and Conditions and entering a contract with the Company.
4.3 Unless specifically otherwise provided for in any proposal, project costs include The Company’s professional fees only and exclude all outside costs including, but not limited to, production, photography and/or artwork licences. 100% of Outside/ Material costs are to be paid prior to Service commencement and will be invoiced separately.
4.4 The Company will invoice the Client for the remaining cost of Services prior to Service commencement. The Company reserves the right to not proceed with these Services until payment has been received in full from the Client.
4.5 A 5 percent monthly service charge shall be payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance.
4.5.1 The Company reserves the right to immediately stop work/service for Clients with overdue balances. The exception is when the Client has A) received approval from the Company in writing prior to the invoice due date, or B) supplied a payment receipt prior the invoice due date.
4.5.2 Where work/service has been stopped due to an overdue balance, the Client has 3 working days to provide proof of payment to secure the original priority and schedule. Payment outside of this will require re-scheduling within 4 weeks subject to the Company’s availability.
4.6 The Company reserves the right to invoice prior to the time detailed in clause (4.4) if the Client has been uncontactable or unresponsive for more than 15 days. Refer to our Cancellation & Variation Policy – Clause (5.0)
4.61.1 Under Clause (4.6) the Company reserves the right to immediately stop work/service and the Client has 3 working days to respond to secure the original work priority and schedule. Contact outside of this will require re- scheduling within 4 weeks subject to the Company’s availability.
4.7 The Company reserves the right to invoice for work completed if the project exceeds 30 days.
4.8 The Client reserves the right to request a payment plan which may be accepted by the Company at its discretion. All payment plans must be agreed to both parties in writing.
4.9 All prices quoted on the Company’s web site and advertising material include delivery and exclude GST.
4.10 All payments are to be made within 7 days of invoicing.
4.11 The Client shall be responsible for all collection or legal fees necessitated by late payment. The Company reserves the right to suspend all services provided to the client and withhold delivery and any transfer of ownership of any current work if accounts are not current. All grants of any licence to use or transfer of ownership of any intellectual property rights under this agreement are conditioned upon receipt of payment in full.
5.1 Termination or suspension of this contract must be done in writing prior to service commencement or a minimum notice period of 2 weeks applies after work has commenced. The Company reserves the right to recover any losses, damages or expenses incurred prior to termination or as a result of termination.
5.2 In the event of the termination of a project by the Client, the Client acknowledges that The Company shall be compensated for the services performed through to the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by The Company or its agents as of the
date of termination, whichever is greater; and the Client shall pay all fees and expenses incurred through and up to the date of cancellation.
5.2.1 If the determined monies payable is less than the deposit paid, a refund will be issued by the Company to the Client for the difference.
6.0 Intellectual Property:
All documentation including proposals, strategy, reports, scopes, electronic copies and information in connection with or arising from the Service is the property of The Company, until such time as the final invoice has been paid in full. The Company places copyright on all documentation. All Services provided by The Company are done in the strictest of confidence.
6.1 The Client agrees that The Company retains the right to reproduce, publish and display any deliverables in promotional materials, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the deliverables in connection with such uses.
6.2 Client content shall remain the sole property of the Client or its respective suppliers. The Client hereby grants to The Company a non-exclusive, non-transferable licence to use, reproduce, modify, display and publish all client content solely in connection with The Company’s performance of services and limited promotional uses of the deliverables.
6.3 The Client acknowledges that all third party materials are the exclusive property of their respective owners. The Company shall inform client of all third party materials that may be required to perform the services or otherwise integrated into the final art.
6.3.1 Under such circumstances The Company shall inform Client of any need to licence, at the Client’s expense, and unless otherwise provided for by the Client, The Company shall obtain the licence(s) necessary to permit the Client’s use of the third party materials consistent with the usage rights granted herein.
6.3.2 In the event the Client fails to properly secure or otherwise arrange for any necessary licences or instructs the use of third party art, the Client hereby indemnifies, saves and holds harmless The Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the final art.
6.4 The Client acknowledges that The Company retains all rights in and to all preliminary works. The Client shall return all preliminary works to The Company within thirty (30) days of completion of the services and all rights in and to any preliminary works shall remain the exclusive property of The Company.
6.5 Upon completion of services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, The Company hereby assigns to the Client all right and title in and to final art, excluding website source code for which The Company hereby assigns a non-exclusive, non-transferable licence.
6.6 The Client acknowledges that it shall have sole responsibility for ensuring that any proposed trademarks or final deliverables intended to be a trademark are available for
use in commerce and federal registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless The Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the trademark.
7.0 Relationship of the parties:
7.1 The Client acknowledges that The Company is an independent contractor, not an employee of the Client or any company affiliated with the Client. The Company shall provide services under the general direction of the Client, but The Company shall determine, in its sole discretion, the manner and means by which the services are accomplished. This agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this agreement.
7.2 The Client expressly acknowledges that this agreement does not create an exclusive relationship between The Company and the Client. The Client is free to engage others to perform services of the same or similar nature to those provided by The Company, and The Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise its services.
8.0 Force Majeure:
8.1 The Client acknowledges that The Company shall not be in breach of any agreement if it is unable to complete the services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond The Company’s control (collectively, ‘Force Majeure Event’).
9.0 Breach of contract:
9.1 If the client breaches the contract in any form The Company shall be entitled to retain any information and documentation. In the occurrence of any breach of contract, cancellation or non-payment, all documentation must be returned within 7 days.
10.0 Commencement & Completion Date:
10.1 The Company will only commence Service once satisfied that they are in receipt of all required information and documentation from the client, and the clients’ agents if applicable, inclusive of a signed letter of acceptance of the Marketing Proposal and consultancy agreement. The client indemnifies The Company from any damages as a result from delays in Service. The client indemnifies The Company from any damages as a result of its agents.
11.1 The Company is indemnified against any claim by, or liability to, a third party arising from, in respect of or in connection with the Services and all expenses we incur defending or settling such claim or liability.
12.0 Additional work:
12.1 If The Company is required to complete additional work above and beyond quoted amount in relation to original scope, the client must provide in writing within reasonable time, confirmation of a variation order. Work will not commence until
agreement of price for relevant additional work has been made. The Company reserves the right to deny any additional work.
13.1 The Company reserves the right to publish articles, photographs and other illustration relating to this Service. The Company will keep all personal information confidential unless required to be provided by law.
14.0 Work limits:
14.1 The Company are responsible to complete work written in the Marketing Proposal only. The engagement of Service is also subjected to any exclusion or conditions written within Marketing Proposal document.
Agent: any personnel or entity acting on the behalf of the client or The Company;
Agreement: the agreement executed by the parties in connection with the Service, including this consultancy agreement and Marketing Proposal;
Client: the person or entity who has engaged the Service of The Company; Documentation: written or electronic information pertaining to the Service; Terms: the terms of engagement;
Liability: means liability for loss or damage, whether arising under, in connection with or for the breach of the agreement, or in connection with the performance or non-performance of the Services and any additional Service, whether such liability arises in contract, in tort including negligence, under statute or otherwise, and whether arising in connection with one or more events;
The Company: means Mochi Marketing, Australia (ABN 84 858 131 693).
Marketing Proposal: Proposal of work and price to engage for described Service.
Materials: Product and services purchased from 3rd party suppliers on behalf of the client in order to deliver the Services.
Services: the provision of marketing management consultancy pertaining to the Marketing Proposal.
16.0 Governing Law and Dispute Resolution:
16.1 The formation, construction, performance and enforcement of these terms and conditions shall be in accordance with the laws of Australia and the State of New South Wales.