Terms & Conditions


Sketch Collective - Terms of service

Agreed terms

1           Term and Order Forms

1.1        Term of the agreement

This agreement commences on the Commencement Date and continues until it is terminated in accordance with clause 8 (Term).

1.2        Details of Services set out in Order Forms

(a)         During the Term, the parties may agree Services to be provided by Sketch Collective to the Customer in an Order Form. Each Order Form forms part of this agreement.

(b)         Sketch Collective has no obligation to provide any Services under this agreement until and unless the provision of the Services are agreed in an Order Form.

1.3        Term of each Order Form

Each Order Form commences on the Order Form Start Date and continues for the Order Form Term or until it is terminated in accordance with its terms or this agreement.

2           Services

2.1        Provision of Services

Sketch Collective must provide the Services agreed in any Order Form:

(a)         in accordance with this agreement and the applicable Order Form;

(b)         with due care and skill; and

(c)         in a professional manner.

2.2        Customer’s requirements

(a)         The Customer must:

    (i)           not use the Services to engage in fraudulent or illegal behaviour, or in a way that the Customer knows or ought to reasonably know, infringes any third party’s Intellectual Property Rights; or

    (ii)          ensure that its Personnel comply with clause 2.2(a)(i) above.

(b)         The Customer must:

    (i)           give Sketch Collective all information, access and assistance reasonably necessary to enable Sketch Collective to provide the Services;

    (ii)          promptly perform any customer responsibilities described in an Order Form; and

    (iii)         cooperate with Sketch Collective and act reasonably in connection its receipt of the Services.

(c)         The Customer acknowledges and agrees that if the Customer does not comply with subclause 2.2(b) above Sketch Collective:

    (i)           may not be able to supply the Services to the Customer; and

    (ii)          is not responsible or liable for any delay in the provisions of the Services arising in connection with any failure of the Customer (or the Customer’s Personnel) to comply with clause 2.2(b) above.

2.3        Assumptions

Sketch Collective will not be responsible for any failure to provide the Services where any assumptions stated in the Order Form are not met.

3           Fees and invoices

3.1        Fees

The Customer must pay all applicable Fees to Sketch Collective.

3.2        Invoice and payment

(a)         Sketch Collective must invoice the Customer from time to time for the Fees and any other amount payable by the Customer to Sketch Collective in accordance with this agreement and the relevant Order Form.

(b)         The Customer must pay any invoice issued by Sketch Collective by the date specified on the invoice.

(c)         Fees paid in advance are non-refundable except in the event of termination of this agreement due to the breach of Sketch Collective.

(d)         The Customer shall pay Sketch Collective electronically to Sketch Collective's bank account or by any payment method reasonably stipulated by Sketch Collective.  No payment shall be considered paid until it is received in cleared funds by Sketch Collective.

(e)         Unless otherwise stipulated in this agreement or agreed in writing between the parties, payment shall be in the currency in force in Australia from time to time.

3.3        Late payment

(a)         If the Customer is late in paying any part of any monies due to Sketch Collective, Sketch Collective may (without prejudice to any other right or remedy available to it whether under this agreement or by any statute, regulation or by-law) do any or all of the following:

    (i)           charge Interest on the amount due but unpaid and on amounts that have been disputed where the dispute has been resolved in Sketch Collective's favour from time to time from the due date until payment (after as well as before judgment); and

    (ii)          suspend provision of the Services pursuant to clause 8.5(a).

4           Intellectual property

4.1        Sketch Collective Materials

(a)         Sketch Collective (or its licensors, as applicable) retains ownership of all Intellectual Property Rights subsisting in all Sketch Collective Materials.

(b)         Any modification or enhancement to any Sketch Collective Material is deemed to form part of the Sketch Collective Materials and all Intellectual Property Rights in such modification or enhancement vest in Sketch Collective immediately from creation.

(c)         If any Sketch Collective Materials are modified or enhanced by or on behalf of the Customer, then the Customer:

    (i)           assigns to Sketch Collective all Intellectual Property Rights it has in such modification or enhancement immediately from creation; and

    (ii)          where applicable, must procure that the relevant third party assigns to Sketch Collective all Intellectual Property Rights that the relevant third party has in such modification or enhancement, and must ensure that any necessary document is signed, or any other necessary things are done, as required to give effect to that assignment.

(d)         Sketch Collective grants to the Customer, for the relevant Order Form Term, a non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any Sketch Collective Materials and Third Party Material, solely for purpose of enjoying those Services. 

4.2        Customer Material

(a)         The Customer or its licensors (as applicable) retains ownership of all Intellectual Property Rights subsisting in all Customer Materials.

(b)         The Customer grants to Sketch Collective for the Term a non-exclusive, global licence to use, reproduce and modify the Customer Material solely for purposes providing the Services to the Customer and otherwise to perform its obligations under this agreement. This licence includes the right to sublicense.

4.3        Developed Material

(a)         Subject to clause 4.3(c), any Developed Material is owned by Sketch Collective, and to the extent Developed Material does not automatically vest in Sketch Collective, the Customer assigns all Intellectual Property Rights in or in relation to any Developed Material to Sketch Collective.

(b)         If requested by Sketch Collective, the Customer must bring into existence, sign, execute or otherwise deal with any document or take any action which may be necessary to enable the vesting of the Intellectual Property Rights contemplated by clause 4.3(a) in Sketch Collective.

(c)         Once a Final Design is delivered to the Customer, approved, and full payment is received, the copyright in that Final Design is assigned to the Customer by Sketch Collective.

(d)         Unused concepts remain the property of Sketch Collective. Sketch Collective may still use paid-for concepts in its promotional materials and in its studio portfolio, provided that all branding related to the Customer and its brand have been significantly modified to not visually be associated with the Customer and its brand. This modification will include utilising collateral made and owned by Sketch Collective, such as logos, illustration, colour palettes and layout design.

4.4        Moral Rights

Each party warrants that to the best of its knowledge and belief, it has procured the necessary consents in relation to Moral Rights to grant the other party the rights to own and use (as applicable) the relevant Intellectual Property Rights described in this clause 4 in accordance with this agreement.

4.5        Use of the Customer’s marks and promotional content

(a)         The Customer grants Sketch Collective the right to use the Customer’s name, logo, trade marks and branding in Sketch Collective’s promotional and marketing material from time to time for the purpose of identifying the Customer as a customer of Sketch Collective.

(b)         Sketch Collective reserves the right to use all artwork and concepts produced in the course of a project (including those concepts not selected) and revisions for the purposes of promoting Sketch Collective in print or digital media portfolios, website, awards, PR features, social media and blogs, except where the Customer has specifically requested in writing otherwise.

(c)         Sketch Collective acknowledges the confidential nature of Customer’s projects and agrees to only display project work once the campaign, product or site has been publicly launched or commenced.

4.6        Customer responsibilities

(a)         The Customer agrees to exercise due diligence in its direction to Sketch Collective regarding preparation of all materials and the Customer must be able to substantiate all claims and representations. The Customer is responsible for obtaining all Intellectual Property Right clearances in relation to Customer Material, and any Sketch Collective Material and Developed Material that the Customer chooses to use. The Customer is also responsible for arranging, prior to publication, any necessary legal clearance of such material. Subject to clause 6.4, Sketch Collective is not liable for (and the Customer indemnifies Sketch Collective against) any Loss arising in connection with artwork being distributed or published under the direction of the Customer. Notwithstanding anything else to the contrary in this document, no limit or exclusion of liability applies to the liability of the Customer under this clause 4.6(a).

(b)         Sketch Collective will take all reasonable care to check proofs carefully for accuracy in all respects, ranging from spelling to technical illustrations. However, it is the responsibility of the Customer to check all artwork carefully before final sign off and publishing. As a result, subject to clause 6.4, Sketch Collective is not liable for Loss caused by any act or omission in relation to failure to check proofs carefully for accuracy in all respects.

Confidential Information

4.7        Protection of Confidential Information

Each party must only use or copy the other party’s Confidential Information for the purposes of this agreement and must take all steps reasonably necessary to:

(a)         maintain the confidentiality of the other party’s Confidential Information;

(b)         ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this agreement; and

(c)         enforce the confidentiality obligations required by this agreement.

4.8        Restriction on disclosure

(a)         Each party must not disclose the Confidential Information of the other party to any person except:

    (i)           to its Personnel who need to know the Confidential Information for the purposes of this agreement;

    (ii)          where the disclosure is required by applicable law, or under compulsion of law by a court or Government Agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:

(A)         discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(B)         before disclosing any information, gives a reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;

    (iii)         if the other party has given its consent to the disclosure or use; or

    (iv)         as expressly permitted by this agreement.

(b)         Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations that are substantially similar to those set out in this agreement.

4.9        Return of Confidential Information

(a)         Subject to clause 4.9(b), each party must return (or, if requested by the other party, destroy or permanently de-identify) all copies of the other party’s Confidential Information in its possession or control within 10 Business Days of expiry or termination of this agreement.

(b)         If a party needs to retain the other party’s Confidential Information for the purpose of:

    (i)           complying with any applicable law;

    (ii)          litigation;

    (iii)         internal quality assurance and record-keeping; or

    (iv)         performing its obligations or exercising its rights under this agreement,

then it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 4.9(a) promptly after it is no longer required for this purpose.

4.10      Exclusions

The obligations of confidence in clauses 4.7 and 4.8 do not apply to Confidential Information:

(a)         that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or

(b)         that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

4.11      Injunctive relief

Each party acknowledges that:

(a)         the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and

(b)         in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 4.6(a).

5           Privacy

5.1        Sketch Collective’s obligations

If and to the extent Sketch Collective collects, stores, uses, discloses or otherwise deals with Customer Personal Information, Sketch Collective must:

(a)         treat the Customer Personal Information as Confidential Information of the Customer;

(b)         only collect, store, use, disclose or otherwise deal with Customer Personal Information:

    (i)           subject to the Customer’s compliance with clause 5.2(b) in accordance with applicable Privacy Laws; and

    (ii)          only as required for the purposes of providing the Services or as otherwise expressly permitted under this agreement; and

(c)         take such steps as are reasonable in the circumstances to protect the Customer Personal Information from misuse, interference and loss, and from unauthorised access, modification or disclosure.

5.2        Customer’s obligations

(a)         The Customer must comply with the Privacy Laws when handling any Personal Information provided or made available to it by or on behalf of Sketch Collective.

(b)         If the Customer provides, discloses or otherwise makes available to Sketch Collective (or its Personnel) any Customer Personal Information, the Customer must make all disclosures and obtain all consents required to ensure that:

    (i)           the Customer is lawfully (including without breaching the Privacy Laws) able to provide, disclose or make available the Customer Personal Information to Sketch Collective and its Personnel; and

    (ii)          Sketch Collective is lawfully (including without breaching the Privacy Laws) able to collect, store, use, disclose or otherwise deal with the Customer Personal Information for the purposes of providing the Services and otherwise performing its obligations under this agreement.

6           Limitation of liability

6.1        Limitation of liability

Subject to clauses 6.2, 6.3, 6.4 and 6.5, the aggregate liability of a party for all Loss suffered by the other party in connection with this agreement is limited to the total Fees paid or payable by the Customer in connection with those Services.

6.2        Reduction of liability

To the extent permitted by law, the liability of a party under or in connection with this agreement will be reduced proportionately by the extent, if any, to which a breach of this agreement by, or the negligent acts or omissions of, the other party (or its Personnel) caused or contributed to the relevant Loss suffered or incurred by the other party.

6.3        Consequential Loss

Subject to clauses 6.4 and 6.5, neither party is liable for any Consequential Loss however caused (including by the negligence of a party or its Personnel), suffered or incurred in connection with this agreement.

6.4        Australian consumer law

If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any good or service supplied by Sketch Collective in connection with this agreement, and Sketch Collective’s liability for failing to comply with that guarantee cannot be excluded but may be limited, clauses 6.1 and 6.3 (and any inconsistent limitation or exclusion expressed elsewhere in this agreement including any Order Form) do not apply to that liability and instead Sketch Collective’s liability for such failure is limited to (at the election of Sketch Collective), in the case of a supply of goods, Sketch Collective replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Sketch Collective supplying the services again or paying the cost of having the services supplied again.

6.5        Uncapped heads of liability

Subject to clause 6.2, the parties agree that the limitations and exclusions of liability set out in this agreement do not apply where a party’s liability party arises from:

(a)         death of, or personal injury to, any person that is caused by that party or its Personnel;

(b)         loss of, or damage to, tangible property that is caused by that party or its Personnel;

(c)         any breach of a confidentiality obligation set out in this agreement by that party or its Personnel;

(d)         any breach of a privacy obligation set out in this agreement by that party or its Personnel; or

(e)         any unlawful or fraudulent act or omission of that party or its Personnel.

7           Print

(a)         As a marketing agency, Sketch Collective does not offer printing services, but outsources printing for the Customer if requested. It is agreed that Sketch Collective is not responsible or held liable for any errors contained in the final product after the final product has been approved by the Customer (approval may be given in writing), committed to print or posted in view of the public. Sketch Collective will not be held responsible for any change or amendment made after approval. It is the sole responsibility of the Customer to notify Sketch Collective of any such errors during the revision stage and before the final files have been generated. This clause is subject to clause 6.4.

(b)         Whilst Sketch Collective strives to ensure all colours are maintained in both digital and print format, with all printing there may be some colour variations from what the Customer has seen on screen to what the final product looks like and what it did in previous orders. This is due to the nature of CMYK printing and bulk-run printing systems. There will be no reprints at the expense of Sketch Collective. Sketch Collective will endeavour to acquire test prints before the projects are printed in full to ensure Customer satisfaction, but due to the nature of large format printing, some particular jobs may not be able to have test prints made. This will be discussed with the Customer.

8           Termination and suspension

8.1        Termination for breach

If:

(a)         a party (the first party) commits a breach of this agreement or any Order Form that has a material and adverse effect on the other party, and fails to remedy that breach within 30 days of receiving notice from the other party requiring the first party remedy that breach (where capable of remedy);

(b)         the first party commits a breach of this agreement or any Order Form that has a material and adverse effect on the other party (where not capable of remedy); or

(c)         an Insolvency Event occurs in relation to the first party,

then the other party may terminate this agreement (in the case of 8.1(c), subject to any provision of the Corporations Act or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this agreement) or the relevant Order Form (at its option) by notice to the first party in which case this agreement or the relevant Order Form (as applicable) will terminate on the date specified in that notice or, if no date is specified, immediately.

8.2        Termination for convenience

Where indicated in an Order Form, a party terminate this agreement for convenience by giving the other party written notice of no less than the Minimum Notice Period.

8.3        After termination or expiry of this agreement

On termination or expiry of this agreement:

(a)         accrued rights or remedies of a party are not affected;

(b)         except as expressly specified otherwise in this agreement, all licences and similar rights granted under this agreement cease to be granted immediately; and

(c)         within a reasonable period of time after termination or expiry of this agreement, the Customer must return to Sketch Collective all Sketch Collective Materials and Sketch Collective must return to the Customer all Customer Materials.

8.4        Survival

Termination or expiry of this agreement will not affect indemnities, clauses  3, 4, 4.6(a), 5, 6, 8.3, 9, 10, 11 and this clause 8.4, or any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination or expiry.

8.5        Suspension

Without limiting any other remedy Sketch Collective may have under this agreement or at law, Sketch Collective may suspend provision of the Customer’s access to the Services if:

(a)         the Customer has not paid Sketch Collective the Fees in accordance with this agreement, provided that Sketch Collective shall first have given to the Customer at least seven days' notice that the Services would be suspended if the outstanding sums are not paid in full;

(b)         Sketch Collective has reasonable grounds to suspect that the Customer has done or is likely to do any of the things described in clause 2.2(a);

(c)         a third party alleges and provides reasonable evidence that the Customer has done or threatened to do any of the things described in clause 2.2(a); or

(d)         Sketch Collective receives a notice from a third party with a legitimate interest to be protected (including any regulatory body) requiring Sketch Collective to cease providing the Services to the Customer or remove any content the Customer is making available through the Services. Subject to any contrary legal requirements, Sketch Collective shall provide the Customer with a copy of the notice.

Sketch Collective will resume provision of the Services as soon as reasonably possible once the reason for the suspension has been addressed or removed. 

9           Dispute resolution

9.1        Dispute

Clause 9 applies to any dispute which arises between the Customer and Sketch Collective in connection with this agreement (Dispute).

9.2        Dispute Notice

(a)         If either the Customer or Sketch Collective considers that a Dispute has arisen, it may issue a notice to the other party, setting out reasonable particulars of the matters in dispute (Dispute Notice).

(b)         Subject to clause 9.4, the Customer and Sketch Collective must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with clause 9.

9.3        Discussions

The Customer and Sketch Collective must promptly hold discussions between representatives of each party after the issue of a Dispute Notice to attempt to resolve the Dispute.

9.4        Mediation

If the parties fail to resolve the Dispute within 30 days of the date of the applicable Dispute Notice (Discussion Period), either party may during the next 10 Business Days after the end of the Discussion Period, by notice to the other party, refer the dispute to mediation to be conducted by the Australian Commercial Disputes Centre under its then-current mediation rules and guidelines. If a dispute is referred to mediation:

(a)         any meetings organised will be held in Sydney (Australia), or such other place as may be agreed by the parties in writing;

(b)         the parties agree to share the costs associated with the engagement of the mediator equally; and

(c)         each party may be represented by a duly qualified legal practitioner.

9.5        Summary or urgent relief

(a)         Subject to clause 9.5(b), neither party may commence legal or arbitration proceedings in relation to any Dispute in connection with this agreement unless, despite following the procedures set out in this clause 9, the parties have been unable to resolve the Dispute within 90 days of the date that the applicable Dispute Notice was received.

(b)         Notwithstanding anything in this clause 9, a party may at any time commence court proceedings in relation to a Dispute or claim arising in connection with this agreement where that party seeks urgent interlocutory relief.

9.6        Unresolved Disputes to be referred to arbitration

(a)         Any Dispute that is not resolved in accordance with clauses 9.1 to 9.5 within 90 days of the date that the applicable Dispute Notice was received must be referred to and finally resolved by arbitration in accordance with the arbitration rules of the Australian Centre for International Commercial Arbitration (known as ACICA Arbitration Rules).

(b)         The parties agree that:

    (i)           the seat of the arbitration will be Sydney;

    (ii)          the number of arbitrators will be one; and

    (iii)         the language of the arbitration will be English.

(c)         Any award made in respect of arbitration conducted pursuant to this clause 9.6 will be final and binding upon the parties.

10        Force majeure

A party will not be:

(a)         in breach of this agreement as a result of; or

(b)         liable for,

any failure or delay in the performance of its obligations (other payment obligation) under this agreement  to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event, provided that:

(c)         that party advises the other party of the details of the Force Majeure Event, and its likely effect on the performance of its obligations under this agreement; and

(d)         that party takes all steps reasonably necessary to recommence performance of the affected obligations and minimise the delay caused by the Force Majeure Event.

11        Notice

11.1      Method of giving notice

A notice, consent or communication under this agreement is only effective if it is:

(a)         in writing, in English, signed by or on behalf of the person giving it;

(b)         addressed to the person to whom it is to be given; and

(c)         given as follows:

    (i)           delivered by hand to that person’s address;

    (ii)          sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; or

    (iii)         by email to that person’s email address. When a Dispute Notice, termination or breach given under this agreement, is given by email a copy must also be given by hand or pre-paid post, failing which the notice sent by email will be void and have no effect.

11.2      When is notice given

A notice, consent or communication given under clause 11.1 is given and received on the corresponding day set out in the table below. The time expressed in the table is the local time in the place of receipt.

 

If a notice is

It is given and received on

Delivered by hand

(a)         that day, if delivered by 5.00pm on a Business Day; or

(b)         the next Business Day, in any other case.

Sent by post

(a)         three Business Days after posting, if sent within Australia; or

(b)         seven Business Days after posting, if sent to or from a place outside Australia.

Sent by email

The second Business Day after the date of sending provided that the party giving notice has not received a delivery failure or similar notification (in which case notice will not have been given).

11.3      Address for notices

The relevant addresses and email addresses of each party are those set out at the start of this agreement or as the person notifies the sender (as applicable).

12        GST

12.1      Definitions

Terms used in this clause 12 that are defined in the GST Act have the meaning given to them in the GST Act.

12.2      GST exclusive

Except under clause 12, the consideration for a Supply made under or in connection with this agreement does not include GST.

12.3      Taxable Supply

If a Supply made under or in connection with this agreement is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:

(a)         the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply, in addition to and in the same manner as the consideration otherwise payable under this agreement for that Supply; and

(b)         the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.

12.4      Later GST change

For clarity, the GST payable under clause 12.3 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.

12.5      Reimbursement or indemnity

If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).

12.6      Warranty that Tax Invoice is issued regarding a Taxable Supply

Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.

12.7      Progressive or Periodic Services

Where a Supply made under or in connection with this agreement is a Progressive or Periodic Supply, clause 12.3 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.

13        General

13.1      Precedence

(a)         Subject to clause 13.1(b), if there is any inconsistency between the provisions of this agreement, a descending order of precedence will be accorded to:

    (i)           the agreement clauses; then

    (ii)          any Order Form; then

    (iii)         any document referred to in an Order Form,

so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.

(b)         Subject to 13.1(c), where a term in an Order Form is inconsistent with any of the terms of this agreement, that term will prevail over the inconsistent term(s) of the agreement only in relation to that Order Form and only where it clearly:

    (i)           states that the parties have agreed to a provision that is inconsistent with the agreement; and

    (ii)          identifies the provision in the agreement with which it is inconsistent.

(c)         In the event of any inconsistency, clauses 4, 5, 6, 8 and 9 will always prevail over any term in an Order Form.

13.2      Rights cumulative

Unless expressly stated otherwise in this agreement, the rights and remedies under any indemnity or otherwise provided under this agreement are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.

13.3      Amendments

This agreement may only be amended or varied by written agreement between the parties.

13.4      Discretion

Where Sketch Collective may exercise any right or discretion or make any decision under this agreement, Sketch Collective may do so in its absolute discretion, conditionally or unconditionally, and without being required to give reasons or act reasonably.  Clause 13.4 applies unless this agreement expressly requires otherwise.

13.5      Costs

Each party must bear its own costs in relation to the preparation, negotiation, signing and performance of this agreement.

13.6      Assignment, novation and change of Control

(a)         The Customer may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of Sketch Collective, whose consent must not be unreasonably withheld.

(b)         The Customer must not undergo a Change of Control without Sketch Collective’s prior written consent.

(c)         A breach of clause 13.6(a) or clause 13.6(b) by the Customer entitles Sketch Collective to terminate this agreement.

(d)         Clause 13.6(c) does not affect the construction of any other part of this agreement.

13.7      Counterparts

This agreement may be executed in any number of counterparts and all counterparts together make one instrument.

13.8      Entire agreement

(a)         This agreement supersedes all previous agreements about its subject matter.  This agreement embodies the entire agreement between the parties.

(b)         To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this agreement.

(c)         Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this agreement.

13.9      Further assurances

Each party must do all things necessary to give effect to this agreement and the transactions contemplated by it. Without limiting the foregoing, during the Term, the Customer will make available to Sketch Collective adequate information and facilities necessary to perform the Services.

13.10   Continuing obligation

Each indemnity contained in this agreement is a continuing obligation notwithstanding:

(a)         any settlement of account; or

(b)         the occurrence of any other thing,

and it is not necessary for Sketch Collective to incur expense or make payment before enforcing or making a claim under an indemnity.

13.11   Governing law and jurisdiction

(a)         The laws of New South Wales, Australia govern this agreement.

(b)         Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and courts competent to hear appeals from those courts.

13.12   Joint and several liability

If a party to this agreement consists of more than one person, or a term is used in this agreement to refer to more than one party:

(a)         an obligation of those persons is joint and several; and

(b)         a right of those persons is held by each of them severally.

13.13   No waiver

(a)         The failure of a party at any time to require full or partial performance of any provision of this agreement does not affect in any way the right of that party to require that performance subsequently.

(b)         A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

(c)         A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.

13.14   Relationship between parties

Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.

13.15   Severability

A clause or part of a clause of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining clauses or parts of the clause of this agreement continues in force.

13.16   Subcontracting

(a)         Sketch Collective may subcontract the performance of all or any part of its obligations under this agreement.

(b)         The Customer must not subcontract the performance of all or any part of its obligations under this agreement without the prior consent of Sketch Collective.

14        Definitions and interpretation

14.1      Definitions

In this agreement:

Term

Definition

Business Day

means a day that is not a Saturday, Sunday or public holiday in Sydney, Australia.

Change of Control

means the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Claim

any allegation, debt, cause of action, liability, claim, proceeding, suit or demand.

Commencement Date

the date on which this agreement is agreed to by the parties either through written acceptance or payment of the first invoice

Confidential Information

of a party means the terms of this agreement and any information:

(a)         relating to the business and affairs of that party;

(b)         relating to the customers, clients, employees, sub‑contractors or other persons doing business with that party;

(c)         which is by its nature confidential;

(d)         which is designated as confidential by that party; or

(e)         which the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Sketch Collective, includes any Sketch Collective Material and, in the case of the Customer, includes Customer Material.

Consequential Loss

Consequential Loss means:

(a)         loss of profits;

(b)         loss of revenues;

(c)         indirect loss;

(d)         loss of use of the Services;

(e)         loss of reputation;

(f)          consequential loss;

(g)         loss of actual or anticipated savings;

(h)         lost opportunities, including opportunities to enter into arrangements with third parties;

    (i)          loss or damage in connection with claims against the Customer by third parties; or

(j)          loss or corruption of data.

Corporations Act

means Corporations Act 2001 (Cth).

Customer Material

means any material provided by or to which access is given by the Customer to Sketch Collective for the purposes of this agreement including documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.

Customer Personal Information

means any Personal Information provided or made available to Sketch Collective by the Customer or its Personnel.

Developed Materials

means materials (of any nature) created by or on behalf of Sketch Collective in the course of providing the Services but does not include any Sketch Collective Material or Third Party Material

Fees

mean the fees set out in an Order Form and any other amounts contemplated by this agreement as being payable by the Customer to Sketch Collective.

Final Design

means a design that the parties agree in writing to be a Final Design.

Force Majeure Event

means any occurrence or omission outside a party’s control including, but not limited to:

(a)         a physical natural disaster including fire, flood, lightning or earthquake;

(b)         war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;

(c)         epidemic, pandemic, public health emergency, communicable disease outbreak, quarantine restriction, and precautionary measures relating to the same;

(d)         ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;

(e)         failure of a third party service provider;

(f)          failure of a third party to provide a necessary input;

(g)         confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any Government Agency;

(h)         law taking effect after the date of this agreement; and

    (i)          strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors.

Government Agency

means:

(a)         a government or government department or other body;

(b)         a governmental, semi-governmental or judicial person; or

(c)         a person (whether autonomous or not) who is charged with the administration of a law.

GST Act

means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Act Supplier

means the entity making the Supply.

Insolvency Event

means any of the following events:

(a)         a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;

(b)         the party becomes bankrupt;

(c)         a controlling trustee is appointed to the party, or over any of the property of the party;

(d)         the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);

(e)         the party is unable to pay its debts when they become due and payable;

(f)          the party ceases to carry on business; or

(g)         any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition. Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.

Intellectual Property Rights

means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Interest

means interest on any payment owing under this agreement calculated:

(a)         at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for commercial overdrafts or, if lower, the maximum rate permitted by applicable law; and

(b)         daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.

Loss

means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs on a full indemnity basis.

Moral Rights

the rights conferred by Part IX of the Copyright Act 1968 (Cth) and including any similar rights existing or that may come to exist anywhere in the world.

Order Form Start Date

has the meaning given in the corresponding Order Form.

Order Form Term

has the meaning given in the corresponding Order Form.

Order Form

means an Order Form, in the form required by Sketch Collective from time-to-time, validly executed by both parties.

Personal Information

has the meaning given to that term in the Privacy Act.

Personnel

means a party’s employees, secondees, directors, officers, contractors, professional advisers and agents.

Privacy Act

means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued there under, as amended from time to time.

Privacy Laws

means:

(a)         the Privacy Act;

(b)         the Australian Privacy Principles (or APPs) contained in Schedule 1 of the Privacy Act ; and

(c)         all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.

Progressive or Periodic Supply

means a Taxable Supply that satisfies the requirements of section 156-5 GST Act.

Services

means all items, deliverables and services to be provided by or on behalf of Sketch Collective to the Customer under an Order Form and in accordance with this agreement.

Sketch Collective Material

means any material provided by or to which access is given by Sketch Collective to the Customer for the purposes of this agreement including documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means. Sketch Collective Material does not include Third Party Material.

Term

has the meaning given to it in clause 1.1.

Third Party Material

means Intellectual Property Rights owned or licensed by a third party and to which access is given by Sketch Collective to the Customer for the purposes of this agreement.

14.2      Interpretation

In this agreement:

(a)         a singular word includes the plural and vice versa;

(b)         a word which suggests one gender includes the other gender;

(c)         a reference to a clause, annexure or party is a reference to a clause of, and a annexure or party to, this agreement and references to this agreement include any annexures;

(d)         a reference to a party to this agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

(e)         if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(f)          a reference to a document or agreement (including a reference to this agreement) is to that document or agreement as amended, novated, supplemented, varied or replaced;

(g)         a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(h)         a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;

(i)          a reference to ‘month’ means calendar month;

(j)          no rule of construction applies in the interpretation of this agreement to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it;

(k)         a reference to ‘$’ or ‘dollar’ is to Australian currency;

(l)          the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;

(m)        a reference to ‘writing’ includes any method of representing or reproducing words, figures or symbols in permanent and visible form, but does not include electronic form unless expressly stated to include electronic form;

(n)         clause headings are for convenient reference only and have no effect in limiting or extending the language to which they refer;

(o)         a reference to a clause means the relevant clause in the agreement clauses unless the reference or context requires otherwise; and

(p)         a reference to a party is a reference to Sketch Collective or the Customer, and a reference to the parties is a reference to both Sketch Collective and the Customer.

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