Kylie May Garner & Kathy Margaret Weiland trading as Ink & Ginger ABN 21 785 593 194 (“Ink & Ginger”) provides photography, marketing and design services including photography, marketing, graphic design, brand developmentand illustration (“Services”). You, the client (“You”, “Your”, “Yours”) wishes to use the Services and have engaged Ink & Ginger to provide the Services. Ink & Ginger agrees to provide You with the Services on the terms of the Agreement.
Upon Your acceptance of the Services, You agree that You have entered into an agreement consisting of all quotes and tax Invoices issued to You by Ink & Ginger and the terms below (collectively referred to as the “Agreement”).
1. The Services
Ink & Ginger will always endeavour to do its best to provide You with the Services in a professional, courteous and diligent manner. Ink & Ginger’s ability to provide the Services is subject to Your timely cooperation and You agree to do all things reasonably necessary to ensure that Ink & Ginger can meet its obligations in providing the Services to You.
Where the Services include photography, this clause 2 applies.
(a) Ink & Ginger will provide the photography services to You for the purpose set out in the quote.
(b) The photographs are subject to copyright, which remains with Ink & Ginger as the author and owner of the copyright in the photographs.
(c) The licence granted to You by Ink & Ginger in accordance with this clause 2 is a worldwide, non-exclusive, non-transferrable licence and does not extend to any rights to copy, scan, reproduce, distribute, alter or modify the photographs without written permission from Ink & Ginger, which may be withheld at Ink & Ginger’s discretion.
(d) The licence granted under this clause 2 is subject to Your compliance with the Agreement and in particular, full payment being received in accordance with clause 3.
(e) Ink & Ginger may use the photographs for promotional purposes only.
(f) Any request by You for a reshoot will incur a further Service Fee determined by Ink & Ginger.
3. Service Fees and Payment
3.1 Service Fee
In consideration for Ink & Ginger providing the Services to You, You must pay all fees (including disbursements) for the Services in accordance with any quote and any additional fees due for work provided outside the scope of the quote but in accordance with Your prior instructions (“Service Fee”)
(a) You must pay Ink & Ginger the Service Fee on the payment terms set out in the tax invoice. Where no terms of payment are specified in the tax invoice, You will make payment within 7 days of receiving a valid tax invoice from Ink & Ginger, unless otherwise agreed.
(b) You are liable for payment of all Service Fees and any disbursements or third party fees and charges incurred during the provision of the Services, as and when such fees and charges fall due.
(c) If the Service Fee or a portion of the Service Fee (eg, deposit) is not paid in full by the due date set out in the tax invoice, then Ink & Ginger reserves the right to suspend, cancel or terminate all or any of the Services until all outstanding payments have been received in full. Failure to pay a Service Fee in full by the due date is a fundamental breach of the Agreement.
(d) Ink & Ginger reserves the right to increase the Service Fee from time to time with 3 months notice.
(a) Consideration under the Agreement excludes GST, unless expressly specified otherwise. Where GST is payable by an entity in relation to a supply that it makes under or in connection with the Agreement, and the consideration for that supply excludes GST, the party providing the consideration will pay an additional amount equal to the GST when any part of the consideration is first payable.
(b) Subject to clause 3.3(a), the Service Fee is exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Agreement. Without limiting the foregoing, You will be liable for any taxes, duties or charges imposed in connection with the Agreement, and will pay to Ink & Ginger the amount of any tax, duty or charge imposed on Ink & Ginger in connection with the Agreement.
(c) “GST” means the Goods and Services Tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4. Intellectual property
(a) The Agreement does not grant either party any rights, implied or otherwise, to the other’s Material, content or Intellectual Property Rights. As between the parties, You own all Intellectual Property Rights in Material provided by You to Ink & Ginger and Ink & Ginger owns all Intellectual Property Rights in the Services including all Material developed by Ink & Ginger, with the exception of any intellectual property comprised in any brands or logos developed for you in accordance with provision of the Services, which you will own outright.
(b) Ink & Ginger grants You a non-exclusive, worldwide licence to use Ink & Ginger’s Intellectual Property Rights and Material for the Services, to the extent necessary for You to use the Services in accordance with the Agreement. In addition, Ink & Ginger grants You the exclusive right to use, register, assign or sub licence any trade mark developed by Ink & Ginger for You.
(c) You grant Ink & Ginger a non-exclusive licence to use Your Intellectual Property Rights and Material to the extent necessary for Ink & Ginger to provide the Services.
(d) You are solely responsible for ensuring that You, Your personnel, related parties or any of Your licensees have all necessary rights and permissions to use, licence and register, as the case may be, Your Intellectual Property Rights arising from Services including the Material.
(e) You indemnify, release and hold harmless Ink & Ginger from and against any claims or allegations of Intellectual Property Rights infringement or breach of any laws as a result of:
(i) Material provided to Ink & Ginger by You or Your personnel; or
(ii) You or Your personnel’s use of the Services.
(f) “Intellectual Property Rights” means any and all intellectual and industrial protection rights throughout the world including rights in respect of or in connection with: confidential information; copyright; inventions (including patents); trade marks (registered and unregistered); and designs, circuit layouts, whether or not now existing, and whether or not registered or registrable and includes the rights to apply for the registration of such right and includes all renewals and extensions.
(g) “Material” means any material in any form such as artwork, online content, logos, instructions, terms and conditions, privacy statements or policies, brochures or other promotional material and includes any other works comprising Intellectual Property Rights that are used for the Services.
(h) The rights granted to You in this clause 4 are subject to all other rights and obligations set out in the Agreement.
(a) Except where permitted by clause 5(c), each party will keep confidential and must procure that each of their respective personnel, professional advisers and attorneys keeps confidential, the existence of and the terms of the Agreement, all negotiations between the parties in relation to the subject matter of the Agreement, and all other information given to it under the Agreement.
(b) “Confidential Information” includes, but is not limited to, matters not generally known in the public domain, such as developments relating to existing and future products and services marketed or used or to be marketed or used, or rejected, by the disclosing party and persons dealing with the disclosing party and also information relating to the general business operations with the disclosing party.
(c) Nothing in the Agreement prevents a person from disclosing matters referred to in clause 5(a):
(i) with the prior written approval of the party; or
(ii) where the matter has come into the public domain otherwise than as a result of a breach by any party of the Agreement.
6. Liability and indemnity
(a) You acknowledge that Ink & Ginger makes no representation or warranty regarding the Services. To the extent permitted by law, all express or implied warranties, representations, guarantees, statements, terms and conditions relating to Ink & Ginger and the Services, not expressly set out in the Agreement, are excluded.
(b) To the extent that Ink & Ginger cannot exclude consumer guarantees or terms implied by law, Ink & Ginger’s total aggregate liability for any breach of those terms is limited at its option to:
(i) in the case of goods, either replacing or repairing the goods or paying the cost of replacing or repairing the goods; and
(ii) in the case of services, either resupplying the services or paying the cost of resupplying of the services.
(c) To the extent permitted by law and without limiting any other term of the Agreement:
(i) Ink & Ginger’s liability to You and Your personnel, whether for breach of the Agreement, in tort (including negligence) or otherwise, is limited to the total amount of the Service Fee paid by You to Ink & Ginger under the Agreement in the 12 months preceding the event giving rise to liability or $500, which ever is the lesser; and
(ii) Ink & Ginger will have no liability to You or Your personnel, contractors or licensees for any loss of profits, loss of savings, loss of funds, loss of revenue, loss or corruption of data, or consequential, indirect or special loss.
(d) You agree to indemnify and hold harmless Ink & Ginger, its personnel, contractors, and licensors, and their respective personnel from and against any and all claims and expenses (including legal fees) arising out of Your or Your personnel’s use of the Services, including but not limited to Your breach of the Agreement.
6.1 Postponement or cancellation
Notwithstanding any other provision of the Agreement to the contrary, if You cancel or postpone the Services at any time during the Agreement, You are responsible for payment of all expenses incurred up to the date of cancellation or postponement, and You may also be charged 30% of Ink & Ginger’s Service Fee. However, if notice of cancellation or postponement is given by You less than 1 business day prior to the provision or completion of Services, You may be charged up to 100% of the Service Fee. All fees charged in accordance with this clause 6.1 is at Ink & Ginger’s discretion, acting reasonably.
7. Term and termination
The Agreement commences from the date of Your acceptance and continues until it is terminated in accordance with clause 7.2.
7.2 Termination rights
Either party may terminate the Agreement, in part or whole, immediately by written notice to the other where the other party:
(a) ceases to operate its business or becomes subject to any form of insolvency or bankruptcy administration; or
(b) is in breach of the Agreement and, where the breach is capable of being remedied, has failed to remedy the breach within 7 days after being given notice requiring it to remedy the breach; or
(c) there is a serious breach of the Agreement including a breach of clauses 2(c) or 5.
7.3 Actions on termination
Upon termination of the Agreement:
(a) By Ink & Ginger, all rights granted to You herein cease and You and Your personnel must immediately stop using the Services including use of any Material and Intellectual Property Rights of Ink & Ginger.
(b) Your access to the Services will cease including any online accounts managed or hosted by Ink & Ginger in relation to the Services.
(c) Each party will deliver up the other party’s Material to the respective owner within 7 days after termination.
7.4 Effect of termination
Termination of the Agreement will not affect the operation of clauses 1.2(g), 2(b), 3.2(b), 3.3, 4(e), 5, 6 or 7.3, 8 or any other clause expressed or intended to operate after termination or any rights or remedies already accrued to a party under, or in respect of any breach of, the Agreement.
A party will not assign its rights under the Agreement without the prior written consent of the other party, which will not be unreasonably withheld.
8.2 Entire agreement
The Agreement constitutes the entire agreement between You and Ink & Ginger in relation to its subject matter.
(a) You will comply with all applicable laws, regulations and standards.
(b) Without limiting clause 8.3(a), You are responsible for ensuring that You and Your personnel comply with all applicable laws, codes of practice and policies governed by any relevant social media sites (eg Facebook, Instagram, Pinterest, LinkedIn), the terms of which can be viewed on their respective websites.
(c) You indemnify, release and hold harmless Ink & Ginger and its personnel for Your or Your personnel’s breach of any laws, regulations, codes of practice or policies.
8.4 Force Majeure
If a party is prevented from or delayed in performing an obligation by Force Majeure and promptly acts to mitigate or remove the Force Majeure and its effect, then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances. “Force Majeure” means an event beyond the reasonable control of the affected party, which occurs without the fault or negligence of the affected party.
8.5 Governing law and jurisdiction
The Agreement is governed by and construed in accordance with the law of Queensland and the parties submit to the jurisdiction of the courts of Queensland.
8.6 Parties’ relationship
The relationship between the parties is that of principal and independent contractor. Nothing in the Agreement will be taken as establishing You as an agent of Ink & Ginger without the express written authority of Ink & Ginger.
If any part of the Agreement is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Agreement.
Failure or omission by a party to require strict or timely compliance with any provision of the Agreement will not affect any right of that party to remedies it may have in respect of any breach of a provision.
(a) In the Agreement, unless the context provides otherwise:
(b) A reference to personnel means a party’s officers, employees and agents.
(c) A reference to a person includes corporations
(d) Words including a singular number or word include plural numbers or words and vice versa; and words including a gender includes all other genders.
(e) A reference to a statute (eg, law or regulation) includes all amendments to that statute passed in substitution for that statute.
(f) Except for the purpose of identification, headings have been inserted into the Agreement for the purpose of guidance only and are not part of the Agreement.
10. Refund Policy
Unless otherwise stated, there are no refunds for digital products or services. Ink & Ginger is not required to provide a refund if you simply change your mind or discover a cheaper product or service elsewhere
Refunds will not be provided for those who do not attend scheduled appointments. Notice of cancellation must be made via email to email@example.com 24 hours prior and a credit given towards a future appointment. Appointments cancelled within 24 hours of the allocated time will be forfeited.