ARTISTIC DRAWING AND IMAGE SERVICES CONTRACT (‘Contract’)
These terms and this Contract form the basis of our arrangement to provide you with our Services.
‘Client’, ‘you’means the individual, company or business engaging our Services.
‘Quote’means the most recent fully inclusive cost quote or proposal for the Project provided to the Client.
‘Licensed Material’means any still and digital image, portrait, drawing, art or any other product in any medium protected by copyright, trademark, patent or other intellectual property rights, which is the Project product of our Services and is licensed under the terms of these License Terms.
‘Project’means the Client work outlined in detail in the Quote.
‘Personal Use’means any use not primarily intended for or directed towards commercial advantage or monetary compensation but does include the right to post on social media.
‘Service’ or‘Services’means the provision and production of all types of images, drawings, art and related work, in any medium including digital and print, for personal use and other licensed purposes as may be agreed in writing from time to time.
‘We’, ‘our’ and ‘us’means Marika Paarman, The Etchings Collection, its directors, employees, contractors and affiliates.
2. SERVICES AND VARIATIONS
2.1 We provide our Services in a professional manner and in accordance with generally accepted industry practice and standards. We agree to perform our Services using our team, representatives and service providers who have appropriate qualifications and skills to perform the Services.
2.2 You agree to ensure that any image, photograph, drawing or material (‘Project Material’) you may provide to us as part of our Services is a copy only and you have retained the original or multiple copies of the Project Material in the event the Project Material may be lost or damaged and unable to be returned.
2.3 At any point in the provision of the Services, you may request or require a variation (‘Variation’) to the Services for which we will provide a cost estimate. In the event we both agree to this Variation, we will agree timing for the additional work and the timing for payment for the Variation. If we agree to proceed, the agreed Variation will form part of and be on the same terms as the Services in this Contract.
2.4 We provide our Services and the Project using our artistic license with our original creativity and in the style for which you have viewed samples. You agree the resulting Services and Project will not be an exact replica of the image provided and will be in the style which was agreed from the samples provided and viewed by you and any other written instructions which you may provide to us.
3. DELAYS AND CANCELLATION
3.1 There may be additional costs involved should you request any specific requirements or restrictions which may contribute to or cause the delay in commencement or finalisation of elements of the Project. These may be discussed and brought to your attention prior to the commencement of the Project.
3.2 If you cancel the Project prior to payment of the full balance, the deposit is non-refundable as we have booked in your time period and any change or cancellation would be detrimental to the business for loss of this period that we had blocked out.
3.3 Where you cancel or terminate the Project after commencement there is no refund of any amounts paid as we have commenced the work, and allocated the blocked full period for the Project.
4. DELIVERY AND TIMELINES
4.1 All deliveries and timelines will be agreed at the point of receipt of the deposit amount and agreement for Services. You acknowledge that there may be delays in the delivery of the Project which may be out of our control and for which we may not be held responsible.
4.2 Where appropriate, we may ask for feedback on our Projects to enable us to finalise and deliver the final production of the Project. You acknowledge and agree that any delay in such feedback may cause a delay to the delivery of the Project. In the event that you do not provide feedback within a reasonable period of time, we reserve the right to charge an additional administration fee to cover any costs we may incur as the result of the delayed feedback.
4.3 Where requested, if we do not receive any feedback within 4 weeks of presentation of the Project pending final feedback, we may finalise the Project and any other changes or variations will be at an agreed additional fee where it is possible to make such changes.
5. PAYMENT TERMS
5.1 A non-refundable deposit of 50% of the full cost of the Project is due prior to commencement to confirm and book our Services. We will agree timelines and final delivery once this amount is received. The final payment is due 3 weeks prior to commencement of the Project.
5.2 In the event of any late, overdue or unpaid invoice of final amounts due prior to commencement of the Project, we will provide you with a late payment reminder after which you will have a 1 week additional period to make final payment. If we do not receive the final balance by the date indicated in the reminder notification, we will cancel your Project, booking and there will be no refund of any deposit paid.
6. OWNERSHIP OF COPYRIGHT AND MODEL RELEASE
6.1 On full payment for the Project and all Services, you will have the licensing rights to all images and ideas relating to the Project in accordance with the License Terms contained in clause 7 of this Contract.
6.2. We at all times, retain ownership of the Copyright of the Project and product of the Services. We may use it for our own promotion, advertising, portfolio, or any other commercial use relating to our business as we may determine and see fit.
6.3 From time to time, you may provide us with information, directions or Content to be included in the Project. You warrant that the information and Content is owned by you and able to be used as part of the Project. You also agree to indemnify us for any claims that may arise directly or indirectly as a result of any information, directions or Content you provide including but not limited to copyright, defamation, reputational and other claims.
6.4 By providing us with your Project Material, you hereby grant permission to the rights of the content subject model (‘Model’) including but not limited to any person, animal or other model contained in the Project Material, to be used in any advertising, publicity, social media, commercial and other business purposes relating to The Etchings Collection’s business and services without payment or any other consideration. You understand and consent to the use of the Model image which may be edited, copied, modified, exhibited, published, distributed, displayed or reproduced in any manner, medium including on any product, for any commercial or other business distribution, and release The Etchings Collection from all claims of any kind for such use.
You understand that this permission is irrevocable and agree that there is no time limit on the validity of this release nor is there any geographic limitation on where these materials may be distributed.
7. LICENSE TERMS
7.1 The Etchings Collection grants you a perpetual, exclusive, non-transferable, non-sublicensable, revocable and worldwide right to use the Licensed Material only as permitted on the terms in these License Terms. You may use the Licensed Material for your Personal Use only and may not copy, alter, reproduce, in any means the Licensed Material.
You agree you will not use the Licensed Material in any other manner without our express permission in writing.
7.2 The Etchings Collection warrants that they are the sole owner of the Licensed Material. The Etchings Collection is solely responsible for all litigation in relation to any trademark, copyright or other intellectual property claims that may arise as a result of the License provided in these License Terms. The Etchings Collection will immediately take over any litigation, claims or other issues that may arise regarding intellectual property rights, including and in particular, that may arise by use of the Licensed Material in a manner consistent with these License Terms.
7.3 No ownership or copyright in any Licensed Material shall pass to you or any other person as a result of the License provided in these License Terms. Except as expressly stated in these License Terms, The Etchings Collection grants you no right or License, express or implied, to the Licensed Material. You may not falsely represent, expressly or implied, that you are the original creator of the Licensed Material.
7.4 You may at no time use the Licensed Material in a way that infringes third party rights, is defamatory or otherwise may be considered illegal. You shall defend, indemnify and hold The Etchings Collection harmless from all damages, liabilities and expenses, including reasonable legal fees, arising out of or as a result of claims by third parties relating to your use of the Licensed Material outside the scope of these License Terms. Any use of Licensed Material in a manner not expressly authorised by these License Terms will result in termination of the License and the rights granted hereunder. Upon termination, you must immediately stop using the Licensed Material and destroy or return the Licensed Material to us. We reserve the right to charge, and you agree to pay, a royalty fee for unauthorised use of the Licensed Material.
8.1 We agree that we will keep confidential, not use directly or indirectly and will not disclose directly or indirectly this Contract, the Project and all information relating to, arising under or acquired under or as a consequence of this Contract except as required by law or any regulatory authority or otherwise with your express consent.
8.2 We will not disclose or allow access to any other person or third party unless required to perform the Services in which case we will ensure they are under the same duty of confidentiality.
8.3 All Project information and the related duties of confidentiality will remain and exist unless and until it is in the public domain at which time the duty of confidentiality no longer exists.
9. LIMITATION OF LIABILITY
9.1 You agree and acknowledge that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from your use of our Services or the Project itself. For the sake of clarity, in no event will we be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits, interruption of business even if the possibility of such loss was made known to us.
9.2 We are not responsible for and you agree to take over and indemnify us for any third party claims that may arise as a direct or indirect result of your use of the Project and our Services.
9.3 Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (‘Statutory Rights’). Our liability is governed solely by the ACL and these terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
9.4 Except for your Statutory Rights, all goods and services are provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of that the Services will be provided with due care and skill and fitness for a particular purpose.
9.5 When your Statutory Rights apply, to the extent possible, our liability in respect of any claim is limited to, at our option: the supply of any services again; or the payment of the cost of having any services supplied again.
9.6 No agency, partnership, joint venture, or employment is created as a result of these terms, and you do not have any authority of any kind to bind us in any respect whatsoever.
9.7 Our failure to exercise or enforce any right or provision of these terms shall not constitute a waiver of such right or provision.
10. GOVERNING LAW AND DISPUTE RESOLUTION
This Contract is governed by the laws of Victoria, Australia which are in force from time to time. In the event of any dispute arising out of or in connection with this Contract, the parties agree to first attempt to submit to arbitration in accordance with and subject to the rules of the Institute of Arbitrators and Mediators Australia prior to litigation through any court process.