Terms

Definitions

1.1 Agreement means the entire content of this document and the proposal document(s), including supporting documentation.

1.2 Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by the client for use in the preparation of and/or incorporation in the Deliverables.

1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under the Australian Copyright Law.

1.4 Deliverables means the services and work product specified in the Proposal to be delivered by the agency to the client, in the form and media specified in the proposal.

1.5 Agency Tools means all tools developed and/or utilised by the agency in performing the Services, inc. without limitation pre-existing and newly developed software including source code, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts.

1.6 Final Deliverables means the final versions of Deliverables provided by the agency and accepted by the client.

1.7 Final Works means all creative content developed by the agency, or commissioned by the agency and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, sounds, typographic treatments, modifications to the client’s content, and the agency’s selection, arrangement and coordination of such elements together with the client content and/or third party materials.

1.8 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the agency.

1.9 Project means the scope and purpose of the client’s identified usage of the work product as described in the Proposal.

1.10 Services means all services and the work product to be provided to the client by the agency as defined within the Proposal.

1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables.

1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.

1.13 Working Files means all underlying work product and digital files utilised by the agency to create the preliminary works and final works other than the format comprising the Final Deliverables.

1.14 The client means the recipient of the services as stipulated on the proposal, approach document or scope of work.

1.15 The agency means Hatchet Agency Pty Ltd and associated brands.

2. Proposal

2.1 The terms of the Proposal shall be effective from 30 calendar days after presented to the client. In the event this agreement is not executed by the client within the time identified, the proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. Fees and Charges

3.1 Fees: In consideration of the Services to be performed by the agency, the client shall pay to the agency fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2 Expenses: Client shall pay the agency’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus the agencies standard markup of percent (10%), and, if applicable, a mileage reimbursement at per mile; and (b) travel expenses including transportation, meals, and lodging, incurred by the agency with the client’s prior approval.

3.3 Additional Costs: The Project pricing includes the agency’s fee only unless otherwise stipulated within the proposal. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to the client.

3.4 Invoices/Payments: The client shall pay all invoices within (14) calendar days of the invoice date. The agency reserves the right to charge fair and reasonable fees on outstanding accounts as permitted by law. The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. The agency reserves the right to withhold Deliverables if accounts are not current and up to date or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full, including any outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the cost of Changes.

4. Changes

4.1 General Changes: Unless otherwise provided in the Proposal or this agreement, the client shall pay additional charges for changes requested by the client which are outside the scope of Services on a time and materials basis, at the agency’s standard hourly rate of $175 p/hour plus taxes. Such charges shall be in addition to all other amounts payable under the proposal, despite any budget’s previously agreed upon, contract price or estimate. The agency may extend or modify any delivery schedule or deadline previously agreed upon as a result of required such changes.

4.2 Substantive Changes: If the client requests or instructs changes that amount to a revision in or near excess of percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, the agency shall be entitled to submit a new and separate Proposal to the client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by the agency.

4.3 Timing: The agency will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The client agrees to review Deliverables within the time identified for such reviews and to promptly either (i) approve the Deliverables in writing or (ii) provide written comments sufficient to identify the client’s concerns, objections or corrections. The agency shall be entitled to request written clarification thereof. The client acknowledges and agrees that the agency’s ability to meet schedules is entirely dependent upon the client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the client’s performance or Changes in the Services or Deliverables requested by the client may delay delivery of the Deliverables. Any such delay caused by the client shall not constitute a breach of this Agreement by the agency.

4.4 Testing and Acceptance: The agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the client. The client, within five (5) business days of receipt of each Deliverable, shall notify the agency, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the agency will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the client, the Deliverable shall be deemed accepted.

4.5 Suspension Fee: The client acknowledges that the agency has reserved time exclusively to perform the Services. Accordingly, in the event the client causes a delay in the Services (“Client Delay”), The client shall pay to the agency, in addition to fees and expenses already incurred through the date of such Client Delay, a Suspension Fee equal to the agency’s hourly fees for idle time caused by the Client Delay, unless the agency is able to secure other work for that time for the same or greater compensation. The client acknowledges that if agency accepts other work because of a Client Delay, the agency may adjust time to complete the Services as necessary to accommodate such other work.

5. Client Responsibilities

5.1 The client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the the agency; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; (c) final proofreading and 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 ; and (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in the client’s industry.

6. Attribution/Promotions

6.1 The client agrees to include in all displays or publications of the Final Works attribution and/or copyright notice in the agency’s name in the form, size and location as incorporated by the agency in the Deliverables, or as otherwise directed by the agency. The agency retains the right to reproduce, publish and display the Final Works, Deliverables, and Preliminary Works, to the extent they do not contain the client’s Confidential Information, in the agency’s portfolios, websites, social media profiles, and in galleries, 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. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project, and, if applicable, the services provided to the other party on its website and in other professional materials, and, if not expressly objected to, include a link to the other party’s website.

7. Confidential Information

7.1 Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project, except as may be required by a court or government authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

8. Relationship of the parties

8.1 Contractor: The agency is a contractor, not an employee of the client or any company affiliated with the client. The agency shall provide the Services under the general direction of the client, but the agency shall determine, in the agency’s 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. All rights, if any, granted to the client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

8.2 Agents: The agency shall be permitted to engage and/or use third party agents or other service providers as independent contractors in connection with the Services (“Agents”). The agency shall remain fully responsible for such Agents’ compliance with the various terms and conditions of this Agreement.

8.3 No Solicitation: During the term of this Agreement, and for a period of six (6) 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, work-for-hire or any other kind of basis, any employee or Agent of the agency, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, the client agrees that the agency 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. 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. The agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

8.4 No Exclusivity: Both parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The client is free to engage others to perform services of the same or similar nature to those provided by the agency, and the agency shall be entitled to offer and provide similar services to others, solicit other clients and otherwise advertise the services offered by the agency.

9. Warranties and Representations

9.1 By The Client: The client represents, warrants and covenants to the agency that; (a) The client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of the client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the the client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) The client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) The client shall comply with all laws and regulations as they relate to the Services and Deliverables.

9.2 By The Agency: (a) The agency hereby represents, warrants and covenants to the client that the agency will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) The agency further represents, warrants and covenants to the client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of the agency and/or the agency’s agents, (ii) if the Final Deliverables include the work of the agency’s agents, The agency shall have secured agreements from applicable agents granting all necessary rights, title and interest in and to the Final Deliverables sufficient for the agency to grant the intellectual property rights provided in this Agreement, and, (iii) to the best of the agency’s knowledge, the Final Works (excluding Client Content and Third Party Materials), and use of same in connection with the Project, will not violate the rights of any third parties. The client acknowledges that the agency will not conduct any type of intellectual property clearance search (e.g., copyright, trademark, utility patent or design patent searches). If the client or any third party authorised by the client modifies or uses the Deliverables outside the scope of rights granted in this Agreement, or otherwise in violation of this Agreement, all representations and warranties of the agency shall be void. (a) Except for the express representations and warranties stated in this Agreement, the agency makes no warranties whatsoever. The agency explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.

10. Indemnification/Liability

10.1 By The Client: The client agrees to indemnify, save and hold harmless the agency 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 any breach of the client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances the agency shall promptly notify the client in writing of any claim or suit; (a) The client has sole control of the defence and all related settlement negotiations; and (b) The agency provides the client with commercially reasonable assistance, information and authority necessary to perform the client’s obligations under this section. The client will reimburse the reasonable out-of-pocket expenses incurred by the agency in providing such assistance.

10.2 By The Agency: The agency agrees to indemnify, save and hold harmless the client from any and all damages, liabilities, costs, losses or expenses (collectively “Liabilities”) arising out of any meritorious claim, demand, or action by a third party which is inconsistent with the agency’s representations and warranties made herein, except in the event any such Liabilities arise directly as a result of the client’s gross negligence or misconduct, provided that (a) The client promptly notifies the agency in writing of the claim; (b) The agency shall have sole control of the defence and all related settlement negotiations; and (c) The client shall provide the agency with the assistance, information and authority necessary to perform the agency’s obligations under this section. Notwithstanding the foregoing, the agency shall have no obligation to defend or otherwise indemnify the client for any claim arising out of or due to Client Content, Third Party Materials, modifications of or content added to the Deliverables by the client or third parties, improper or illegal use of Deliverables, use of Deliverables not authorised under this Agreement, or the failure to update or maintain Deliverables.

10.3 Settlement Approval: The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.

10.4 Limitation of Liability: The services and the work product of the agency are provided “as is.” In all circumstances, the maximum liability of the agency, its directors, officers, employees, design agents and affiliates, to the client for damages for any and all causes whatsoever, and the client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total Project fee of the agency. In no event shall the agency be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by the agency, even if the agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

11. Term and Termination

11.1 Term: This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered, or otherwise terminated as set forth herein.

11.2 Termination: This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

11.3 In the event of termination: The agency shall be compensated for the Services performed through 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 agency and/or it’s agents as of the date of termination, whichever is greater; and the client shall pay any outstanding Additional Costs, Taxes, Expenses, Charges, and costs of Changes incurred through the date of termination. In the event of termination for convenience by the client, the client shall pay in addition to the above an early termination fee equal to 25% of the total Project fee, and the client shall not have rights to use the Deliverables except upon written consent from the agency provided after such termination.

11.4 Upon expiration or termination of this Agreement: Each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

11.5 Work Stoppage Option: If the agency has grounds to terminate this Agreement for breach under Section 11.2(b), the agency may elect to suspend work until the client cures the breach and agrees to amend the Proposal to adjust fees, including Suspension Fees, and schedules as reasonably required by the agency.

12. General

12.1 Modification/Waiver: This Agreement may be modified by the parties only in writing and signed by both parties, except that the agency’s invoices may include, and the client shall pay, Additional Costs, Expenses, Charges, and costs of Changes that Client authorises by email or a project management platform utilised for the Project. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

12.2 Notices: All notices to be given hereunder shall be transmitted in writing via a project management platform utilised for the Project, e-mail, or certified or registered mail, return receipt requested, to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt (by automated confirmation or reply by the recipient).

12.3 No Assignment: Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.

12.4 Force Majeure: The agency shall not be deemed in breach of this Agreement if the agency is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of the agency including it’s agents or any local, state, federal, national or international law, governmental order or regulation or any other event beyond the agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the agency shall give notice to the client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

12.5 Governing Law and Dispute Resolution: The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws within Australia and the state of without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved shall be entitled to recover its legal fees and costs.

12.6 Severability: Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

12.7 Interpretation: Section headings are solely for convenience and reference only and shall not effect the scope, meaning, intent or interpretation of the provisions of this Agreement nor otherwise be given any legal effect. Any design terminology shall be defined according to standard design industry usage, and any dispute as to the meaning or scope of design terminology shall be determined by the agency in good faith. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions.

12.8 Integration: This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. The parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

13. Rights in the Final Deliverables

13.1 Final Works: Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, the agency grants to the client limited usage rights for the purpose intended as set out in the initial scope of the project. Any additional uses will require separate pricing. All other rights, including Copyrights, are reserved by the agency. The rights granted to the client are for usage of the Final Works in their original form only. The client may not crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions, intentionally alter the colour of the Final Works, or otherwise create derivative works based on the Final Works.

13.2 Trademarks: Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, the agency assigns to the client all rights to trademarks and copyright created by the agency where agreed previously in writing at the initiation of the engagement, trademark and copyright transfer fees may be applicable at the agency’s request. The agency shall cooperate with the client and shall execute any additional documents reasonably requested by the client to evidence such assignment. The client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and the client shall indemnify, save and hold harmless the agency from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of the client’s failure to obtain trademark clearance or permissions, for the use of Trademarks.

13.3 Client Content: Client Content, including pre-existing Trademarks, shall remain the sole property of the client or its respective suppliers, and the client or its suppliers shall be the sole owner of all trademarks, trade secrets, patents, copyrights, and other rights in connection therewith. The client hereby grants to the agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with the agency’s performance of the services and promotional uses of the Deliverables as authorised within this Agreement.

13.4 Third Party Materials: Intellectual property rights in Third Party Materials shall be owned by the respective third parties. The agency shall inform the client of all Third Party Materials to be procured by the agency that the client may need to license at the client’s own expense, and unless otherwise arranged by the client, the agency shall obtain a license for the client to use the Third Party Materials consistent with the usage rights granted herein. The client shall indemnify, save and hold harmless the agency 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 the client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at the client’s request.

14. Rights Reserved to the Agency

14.1 Preliminary Works/Working Files: The agency retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and the client shall return to the agency all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

14.2 Original Artwork: The agency retains property ownership in any physically tangible original artwork comprising the Final Works, including all rights to display or sell such artwork. The client shall return all original artwork to the agency within thirty (30) days of completion of the Services.

14.3 Agency Tools: The agency’s tools and all intellectual property rights therein, including Copyrights, shall be owned solely by the agency. The agency hereby grants to the client a nonexclusive, nontransferable (other than the right to sublicense such uses to the client’s publisher, web hosting or internet service providers), perpetual, worldwide license to use the agency tools solely with the Final Deliverables for the Project. The client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any of the agency’s tools.

15. Printed Works

15.1 Samples: The client shall provide the agency with (3 to 5) samples of each printed or published form of the Final Deliverables, for use in the agency’s portfolio, website, social media, galleries and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.

15.2 Finished Work: The printed work, and the arrangement or brokering of the print services by the agency, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, the agency shall provide copies of the current or standard trade practices to the client. Notwithstanding, the agency shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.

16. Environmental Specific

16.1 Photographs of the Project: The agency shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for the agency’s promotional purposes in accordance with Section 6 of this Agreement.

16.2 Engineering: The Services shall include the selection and specifications for materials and construction details as described in the Proposal. However, the client acknowledges and agrees that the agency is not a licensed engineer or architect, and that responsibility for the work performed under this Agreement is the sole responsibility of the client and/or its architect, engineer or fabricator.

17. Motion Specific

17.1 Warranty of Compliance: The agency represents, warrants and covenants that the deliverables will comply with the client’s technical requirements and applicable industry standards for final output, such as duration, file format, resolution, and color specifications.

17.2 Standard of Care: The agency represents, warrants and covenants that the Deliverables shall be artistically produced with direction, photography, sound, art, animation, synchronisation and other physical and aesthetic content of a technical quality equal to current standards for multimedia development services of similar character and purpose.

17.3 Screen Credits: For film and television projects, the client is responsible for approving the content and placement of all screen credits and assuring their compliance with any and all applicable laws.

17.4 Defects in Client Content: The agency is not responsible or liable for any defects with components provided to the agency by the client, including but not limited to: (a) Production footage, including physical effects (such as models, puppets, prosthetics, et cetera) and/or mechanical effects (also known as “special effects,” such as rain, wind, crashes, explosions, et cetera); (b) Visual effects (such as animations, matte shots, computer-generated images, et cetera); and (c) The agency is not responsible for any federal, state or local licenses, certifications, insurance, or legal requirements related to any components provided by the client.

18. Trade Secrets

18.1 Definition: Each Party’s “Trade Secrets” shall mean a party’s proprietary property, including information, ideas, patterns, compilations, data, lists, documents, memoranda, processes, programs, devices, methods, techniques, formulas or improvements, whether or not patentable, which meets the following criteria: (a) the other Party becomes aware of the property as a consequence of performing its obligations under this Agreement; (b) the property has independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (c) the Party has made reasonable efforts under the circumstances to maintain the secrecy of the property. Each Party acknowledges that the other Party’s Trade Secrets are Confidential Information subject to the Confidentiality provisions of this Agreement.

18.2 The Client’s Trade Secrets: Client’s Trade Secrets include, by way of illustration but without limitation: (a) Client’s customer and vendor information, including, but not limited to, identity, contacts, decision makers, financial and legal dealings; (b) customer files, records, or images from any client project (whether on film, paper, digital or other media); and (c) third party materials entrusted to the client as confidential, such as scripts, story boards, story ideas, identity of actors, and identity of technical resources involved in the client’s projects or potential projects; (d) The client’s business plans, business opportunities, business partners, contracts, negotiations, personnel, finances, legal matters, research, development, information systems, product and software concepts.

18.3 The Agency’s Trade Secrets: The Agency’s Trade Secrets shall include, by way of illustration but without limitation: (a) The Agency’s Tools; (b) Customer and vendor information, including, but not limited to, identity, contacts, decision makers, financial and legal dealings; (c) The agency’s business plans, business opportunities, business partners, contracts, negotiations, personnel, finances, legal matters, research, development, information systems, product and software concepts.

19. Kill Fee

19.1 The Client acknowledges and agrees that the Agency has reserved availability of the agency and/or the agency’s employees and/or sub contractors (collectively “Agency Personnel”) to work on each Proposal for the projected time required to deliver the Services, and that by reserving such availability, the agency’s personnel necessarily forgo opportunities to work on other projects for other clients. Accordingly, the client agrees that, in the event that a project is canceled for any reason other than a material breach by the agency or mutual agreement, the client agrees that it would be impracticable and extremely difficult to calculate the actual damages resulting from such lost opportunities, and Client agrees to pay the agency a project kill fee in the amount of (25% of the estimated project fee’s), which the client agrees represents reasonable compensation for such lost opportunities. This provision replaces and supersedes Section 11.3, except with respect to termination for a material breach by the agency as set forth in Section 11.2(b), of this Agreement.

20. Content Restrictions

20.1 The client understands and agrees that the agency will not perform or be asked to perform services with respect to content comprising adult entertainment, gambling, violence, sexuality, nudity, politics, religion, vulgarity, obscenity, or alcohol or substance abuse.

Contact
For more information about our terms of engagement, if you have questions, please contact us by e-mail at hq@mkrst.co or by snail mail using the details provided below:

Suite 1, 247 St Pauls Terrace, Fortitude Valley, QLD, 4006, Australia