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Terms & Conditions

Last updated December 21, 2018.

Cowan Australasia Pty Ltd

(ACN 80-092-448-729)

Agreement to be bound

      1. These Terms and Conditions shall apply to the exclusion of all others including any Terms and Conditions of the Customer (whether on the Customer’s order form or otherwise). No services will be supplied by Cowan on any Terms or Conditions other than those set out herein and by requesting the services the Customer shall be deemed to agree to these Terms and Conditions.For the purposes of these Terms and Conditions:’Cowan’ shall mean and include Cowan Pty Ltd (ACN 065 394 167) and Customer shall mean the party to whom the services are sold and/or in whose name an Account is maintained by Cowan. ‘Client’ means any party (including any person acting on behalf of the party) who requests Services from Cowan, and/or any party in whose name an account is maintained by Cowan. ‘Services’ means any services or work described on any project briefs, purchase orders, scoping documents, estimates, quotes, timelines, invoices or on any other forms provided by Cowan to the Client, and includes any request for services made by the Client. ‘Work’ means all work produced by Cowan during the course of providing Services to the Client, including but not limited to preliminary sketches, draft concepts, rejected designs, native files, finished artwork and final deliverables.

Costs and payment

      1. The Client acknowledges and accepts that any quotes or timeframes provided by Cowan are estimates only and may be varied or revised by Cowan in reasonable circumstances, including but not limited to changes in scope of work, approval delays or requests for additional rounds of amendments or refinements not included in the initial quote.
      2. 30 day payment terms (from invoice date) apply to Cowan’s invoices unless otherwise agreed between the parties in writing prior to the issuance of the invoice.
      3. In the event of the Client’s default, the Client shall indemnify Cowan in relation to any costs incurred in pursuing or recovering the outstanding amount, including but not limited to collection agency fees and/or legal costs on a solicitor-client basis.
      4. Cowan reserves the right to suspend or cease the provision of any Services to the Client where there are invoice amounts outstanding. Cowan is not liable for any loss or damages that may be incurred by the Client as a result.

Copyright and use

      1. Cowan retains ownership of copyright in all Work it produces in the course of providing Services to the Client.
      2. The Client acknowledges that Cowan retains the right to use Work it produces for the Client in its portfolios, websites, social media accounts and for participation in industry competitions and publications. Cowan will respect any obligation of confidence and will only display the Work once the project is completed or the Work has been disclosed to the public.
      3. Upon receiving full payment for the final deliverables, Cowan will grant the Client a sole license to use the final deliverables within the geographic location, in the format and for the duration and purposes described in the brief. The Client may only use the final deliverables in additional geographic locations, formats, durations or purposes if it has been agreed between the parties in writing. Cowan reserves the right to charge the Client additional fees to use the final deliverables in any additional geographic locations, formats, durations or purposes not described in the initial brief.
      4. A file retrieval and delivery fee will apply to any Client request for Cowan to resend final deliverables after the completion of a project.
      5. Cowan is under no obligation to provide native files to the Client in any situation.

Typefaces

      1. Cowan retains all rights in relation to any original typeface created by Cowan during the course of providing the Services, including the right to license the original typeface to the Client or third parties.
      2. If Cowan is required to use a typeface owned by a third party during the course of providing the Services, the Client must obtain a license and pay any licence fees required to use the typeface.

Confidentiality

      1. The parties agree to hold each other’s confidential information in strict confidence and will not make any disclosure of that information to third parties unless it has obtained prior written consent or where disclosure is necessary for the provision of the Services. This clause survives any cancellation of Services or termination of relationship between the parties.

Subcontracting

      1. Cowan reserves the right to use subcontractors to perform any part of the Services for the Client.
      2. When engaging a subcontractor, Cowan will ensure that:
        1. the subcontractor is bound by the same confidentiality obligations as set out in these terms and conditions; and
        2. any copyright or other intellectual property created by the subcontractor in the course of performing any part of the Services for the Client is assigned to Cowan.

Cancellation

      1. If the Client cancels any request for Services, the Client shall pay Cowan for any Services done on its behalf up to the date of cancellation, including any out-of-pocket expenses and reasonable administration fees in relation to processing the Client’s requests for Services and/or the request for cancellation. The Client must give Cowan 30 days written notice of any cancellation of Services.
      2. Cowan may decline or cancel a request for Services by giving 30 days written notice to the Client. Upon cancellation by Cowan, any amounts paid by the Client for Services that are yet to be fulfilled by Cowan will be refunded and, if requested, any confidential information belonging to the Client returned or destroyed.

Privacy

      1. The Client agrees that personal data provided may be used and retained by Cowan for the following purposes:
        1. provision of Services, communication, record keeping and marketing;
        2. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of the Services;
        3. processing of any payment instructions, direct debit facilities and/or credit facilities as requested by the Client;
        4. enabling the collection of amounts outstanding in the Client’s account in relation to the Services; and
        5. for any other purposes as agreed between the parties in writing or as required by law.

Goodwill

      1. In order for Cowan to protect its goodwill, the Client agrees not to directly or indirectly, for a period of 6 months after the date of completion or cancellation of the Services, employ or solicit to employ any person who has been an employee of Cowan in the period of 1 year prior to the date of completion or cancellation of the Services.

Changes in client ownership

      1. The Client agrees to notify Cowan in writing of any change of ownership of the Client within 7 days of the date of the change.
      2. The Client shall indemnify Cowan against any loss or damages incurred by Cowan as a result of a failure to notify Cowan of the change in Client ownership.

Approvals and materials

      1. At each stage of a project, Cowan will send material to the Client for its approval. The Client may also be required to supply certain material, such as but not limited to specifications or copy. The Client acknowledges that for quality control reasons, Cowan may not be able to proceed to the next stage of the project until the required approvals and/or materials have been provided by the Client.
      2. The Client acknowledges that it is solely responsible for any material it has approved or supplied to Cowan. The Client acknowledges that Cowan is not responsible for any delays, errors, loss or damages in relation to Client approved or supplied material.
      3. To ensure that the final deliverables can be used for the intended purpose, the Client warrants that it will perform all necessary checks and/or obtain all necessary clearances or permissions in relation to Client approved or supplied material.
      4. The Client will indemnify Cowan against all claims arising from Cowan’s use of materials supplied by the Client or for any act carried out by Cowan on the Client’s instructions or with the Client’s approval.

Disclaimer

      1. While Cowan will take all care in providing the Services, the Client acknowledges that the Services can be highly subjective and the operation of outside factors and variables may affect the way the final deliverables are received once released to the public. Any projections, advice or other information provided by Cowan are to be taken as estimates or indications of possible outcome only based on the information available at the time.

Liability

      1. To the fullest extent permissible by law, Cowan will not be held liable for any loss or damages arising out of the Client’s use of the Services. Where liability cannot be legally excluded, Cowan’s liability shall be limited to the cost of resupply.

Anti-corruption

      1. Cowan does not tolerate bribery or corruption in any form and is committed to providing the Services in an honest and ethical manner. To the best of its knowledge, Cowan and its subcontractors are in compliance with applicable anti-bribery and anti-corruption laws and regulations.

Review

      1. The Client acknowledges that these terms and conditions may be reviewed and amended by Cowan without notice.

Dispute resolution

      1. The parties agree to attempt to resolve any disputes that may arise by negotiation. If the parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration. This clause does not preclude either party from commencing legal proceedings to seek an urgent court order for the other party to cease-and-desist (also known as an interlocutory injunction).

Jurisdiction

      1. These Terms and Conditions are to be read in accordance with the laws of the State of Victoria, Australia.

No waiver

      1. Failure by either party to enforce any of its rights under this agreement does not constitute a waiver of that or any other rights.

Severability

      1. If any provision of these Terms and Conditions is held to be invalid or unenforceable, it will, to the extent of the invalidity or unenforceability, be deemed severable and will not affect any of the remaining provisions.

Surviving clauses

    1. The terms, conditions and/or obligations regarding indemnities, copyright ownership, folio use, licensing, native files, confidentiality, privacy and protection of goodwill as set out in clauses 4, 6, 7, 8, 10, 13, 18, 19, 21, 25 and 27 continue to operate after the end of the parties’ relationship.