1. Formation

Studio Helm Pty Ltd ABN 52 634 403 339 (Studio Helm) has provided the client (Client) with an estimate or proposal for work (Estimate).

The Estimate and these terms and conditions collectively form the agreement between Studio Helm and the Client for the work outlined in the Estimate (“Agreement”).

The Agreement is made when the Client returns a signed copy of this document to Studio Helm. Alternatively, where the Client instructs Studio Helm to commence work, without first providing a signed copy of this document, that instruction is taken as acceptance of this Agreement by the Client and this Agreement becomes legally binding immediately.

2. Estimate

The Estimate is valid for 30 days from its issue date.

Studio Helm has prepared the Estimate in good faith, based on its interpretation of the initial client brief, its understanding of the scope of the work and deliverables required and the time and/or cost required to complete.

It remains the Client’s responsibility to ensure the Estimate reflects the scope of work and deliverables the Client requires having regard to the Client’s purposes, business, expectations and specifications, whether the Client has communicated these to Studio Helm or not. Any changes must be raised by the Client and agreed with Studio Helm prior to commencement of work.

3. Studio Helm’s obligation

Studio Helm will exercise due care and skill in providing the services and deliverables in the Estimate.

4. Out of scope

Where works and/or deliverables are not included in the Estimate they are outside of scope. If the Client requires such work and/or deliverables from Studio Helm, these will be performed at additional charges.

5. Fees and charges

Studio Helm will charge the Client in accordance with the Estimate. Studio Helm endeavours to complete work in the amount of time and at the cost specified in the Estimate. However, unless the Estimate specifically states that a charge is fixed, it is an estimate only.

Where there is a variance in time spent on the project in excess of the Estimate, or the work undertaken is out of scope, the Client is required to pay an additional amount for that time, which is calculated at the applicable hourly or daily rates set out in the Estimate. If no such rates are set out in the Estimate, Studio Helm applies its usual hourly or daily rates for the type of work.

Similarly, where Studio Helm’s third party costs exceed the Estimate or are out of scope, the Client is required to pay an additional amount for that cost, generally no greater than Studio Helm’s cost plus a further 10% of the third party cost to reflect Studio Helm’s management time.

Where out of scope work, additional time or costs are likely to result in Studio Helm’s charges exceeding the Estimate by more than 10%, Studio Helm will seek the Client’s prior approval before continuing further with that work, time or incurring that cost. On request, or otherwise at Studio Helm’s discretion, Studio Helm will provide a revised Estimate prior to continuing further.

6. Additional design elements

One common example of out of scope work is where, as part of the design process, Studio Helm suggests the use of a particular design element (for example, font, image, graphic, etc.) which may require additional costs not represented in the Estimate (for example, the purchase of a licence for a font used in a design concept). Studio Helm informs the Client of the Client’s likely liability for additional costs associated with a design element prior to the Client choosing whether to proceed with that particular design element.

7. Revisions

The Estimate permits the Client two rounds of revisions following the presentation of initial concepts, unless otherwise agreed. Where multiple options are presented (for example, logo work), the client must choose one option to approve or refine. Any additional revision rounds are out of scope and the Client will be charged accordingly.

8. Project timescales

Studio Helm will deliver the project in a reasonable timescale. However, whilst Studio Helm endeavours to deliver a project to meet the timescales in the Estimate, these are Studio Helm’s best estimates only. The project timescales are not a condition of this Agreement or of the essence.

To the maximum extent permitted by law, Studio Helm is not responsible for any project over-runs, regardless of the cause, and is not liable for any claims for losses, damages, costs, expenses or penalties of any kind whatsoever (including any third party claims or liquidated damages) that the Client or any other entity suffers or incurs, directly or indirectly, by reason of project over-runs.

9. Client obligations

The Client must:

(a) provide a clear and complete briefing to Studio Helm;

(b) ensure all of the Client’s requirements and specifications are clearly reflected in the Estimate in full prior to instructing Studio Helm to commence work;

(c) provide clear and complete instructions to Studio Helm as needed throughout the project;

(d) make project decisions, and communicate these to Studio Helm, in a timely manner;

(e) provide Studio Helm with such information, project components and/or access to facilities or services as Studio Helm reasonably requires from the Client to enable it to comply with its obligations under this Agreement; and

(f) supply all Client deliverable design elements (for example images, graphics, text, etc.) at the commencement of the project, in a suitable agreed format, unless otherwise agreed with Studio Helm.

Any delays or failure by the Client to meet the above obligations may result in Studio Helm exceeding its time and cost estimates, and out of scope work, which may result in the additional charges set out in clause 5.

10. Proofs and cosmetics

Studio Helm checks digital proofs of all artwork before printing or publishing, but the Client is entirely responsible for checking that the digital proof meets the Client’s requirements, specifications and expectations, and is without error.

By approving the digital proof, the Client acknowledges that it is completely satisfied that all details are correct and bears all risk and responsibility in relation to errors found after the Client has given approval for printing or publishing, regardless of fault. To the maximum extent permitted by law, Studio Helm is not liable for any such errors.

In regards to colour, texture, dimensions and cosmetic matching, to the maximum extent permitted by law, Studio Helm excludes any warranty and/or representation as to the colour, texture, dimensions or cosmetics of published artwork. If colour, texture, dimension or cosmetic accuracy is important to the Client, Studio Helm recommends the Client review a physical printer’s proof which Studio Helm can, on request, supply at the Client’s cost, prior to printing.

11. Client content and direction – intellectual property and laws

The Client is responsible for ensuring that the usage of material it supplies to Studio Helm, and any material it directs Studio Helm to produce or amend, does not infringe intellectual property rights (including copyright) of any person, nor infringe laws in any jurisdiction, when supplied and when incorporated into project deliverables by Studio Helm.

By supplying the material to Studio Helm, the Client:

(a) represents to Studio Helm that, immediately prior to providing the materials or direction to Studio Helm, it has made reasonable enquiries to confirm it holds the intellectual property rights in all materials or, where the material is not the Client’s own, the Client has been granted the right from all owners to use the materials as intended;

(b) acknowledges that Studio Helm is acting in reliance on the Client’s representation;

(c) accepts responsibility for any emerging intellectual property or legal issues;

(d) absolves Studio Helm from any liability whatsoever for intellectual property or legal breaches in any jurisdiction; and

(e) indemnifies Studio Helm against, and holds it harmless from, any claim by any third party, or losses, damages, costs, expenses or penalties suffered or incurred by Studio Helm, whether direct or indirect, consequential or inconsequential, arising out of, or in any way in connection with, a breach or infringement (alleged or actual) of intellectual property or law, in any jurisdiction, relating to all or part of the material supplied by the Client.

The Client also agrees that Studio Helm is not responsible for any amendments made by the Client or any third party to Studio Helm’s work.

12. Legal review

Studio Helm endeavours to produce its own original work, however, to the maximum extent permitted by law, Studio Helm is not responsible and the Client bears all risk and responsibility for any law or intellectual property risk, breaches or infringements of any kind. This includes payment of Studio Helm’s charges in full for work performed in good faith, even where intellectual property issues or risks arise.

Legal review for intellectual property issues or risk is not included in the Estimate.

Studio Helm recommends that the Client implement a procedure to safeguard against infringing the intellectual property rights of others which includes searches for all trademark, copyright, design and patent claims, as applicable.

Further, where the Client is publishing an artwork, content or digital offering arising out of this project, Studio Helm recommends that the Client obtain legal review on relevant matters including confirming that the content or offering does not in any way infringe or breach the intellectual property rights of any person and complies with all relevant laws.

Further, Studio Helm does not provide the Client with advice in relation to intellectual property protection of Studio Helm’s work or legal requirements in any jurisdiction. Studio Helm recommends the Client seek its own independent legal advice in relation to such matters.

13. Digital offering

It is the Client’s responsibility to ensure any requirements or specifications for digital offerings to be produced by Studio Helm are set out in the Estimate (for example, that a website or app is optimised for use on specific browsers or devices). Where Studio Helm creates a digital offering for the Client, it uses reasonable endeavours to ensure the digital offering functions to meet such requirements and specifications.

After delivery by Studio Helm, the Client takes on all responsibility for the continued maintenance, operation, security and functionality of the digital offering.

14. Third party suppliers

Studio Helm may from time to time suggest that the Client engage certain third party suppliers. Studio Helm makes no warranty, representation or endorsement in relation to such third party suppliers; the third party suppliers are not representatives, agents or affiliates of Studio Helm, and Studio Helm is in no way responsible in relation to the acts or omissions of the third party suppliers or their services or goods. The Client engages with such third parties entirely at their own risk.

15. Payment for work

Payment of 50% of the Estimate for the project is required prior to commencing work.

Once work is completed for a project, the Client is required to pay the balance of the project charges.

Studio Helm’s charges for outsourced work with significant third party expenditure (for example printing) must be paid by the Client prior to Studio Helm instructing that third party to commence work.

If substantial delays occur during the project, Studio Helm may issue an interim invoice for any work already carried out.

In each case, Studio Helm will issue the Client with a valid tax invoice prior to payment.

All invoices are due for payment within 15 days of being sent

16. Intellectual property in work

Intellectual property (including copyright) of all work is retained by Studio Helm until all invoices for the project have been settled in full. Upon final settlement of the invoices, intellectual property will be transferred to the Client with the following exceptions:

(a) if multiple concepts are submitted to the Client, intellectual property will be transferred to the Client for the chosen concept only. All other concept work remains the property of Studio Helm in its entirety and may be used by Studio Helm at its absolute discretion including for future projects and other clients;

(b) any animation, illustration, photography or video produced or commissioned by Studio Helm remains the property of Studio Helm or the rightful intellectual property owner,

unless otherwise agreed with the Client in writing for an additional charge.

The Client permits Studio Helm the continuing right to display and reproduce the work in print/online portfolios.

17. Termination

Studio Helm may terminate the Agreement if the Client:

(a) fails to pay Studio Helm’s invoices;

(b) fails to provide Studio Helm with full and adequate instructions in a timely manner; or

(c) breaches another term of this Agreement and fails to rectify it within 14 days of being notified of the breach by Studio Helm.

Studio Helm will provide the Client with at least 14 days’ written notice of Studio Helm’s intention to terminate the Agreement and of the grounds on which the notice is based.

On termination, Studio Helm’s charges for work undertaken, and for expenses incurred, up to the time of termination become due and payable.

The Client may terminate this Agreement by notice in writing at any time.

18. Cancellation and termination charges

If the Client cancels the project or terminates the Agreement for any reason, Studio Helm’s charges for any work carried out up to that time become immediately due and payable by the Client. This is calculated based on the Estimate:

(a) at Studio Helm’s hourly or daily rates plus other costs and charges as set out in this Agreement; or

(b) for work within a fixed fee scope, based on Studio Helm’s reasonable estimate of percentage of completion of the fixed fee scope on a time spent basis.

Where the Client has paid Studio Helm for work in accordance with the payment schedule in clause 15, Studio Helm applies that amount towards the above charges and other debts due by the Client to Studio Helm for any other work, before refunding any excess to the Client within 15 days of cancellation or termination.

19. Indemnity for breach

The Client indemnifies Studio Helm for any losses, damages, costs, expenses or penalties incurred by Studio Helm arising in connection with the breach by the Client of a term or terms of this Agreement,

except to the extent caused by the wilful misconduct of Studio Helm.

20. Indemnity – notification and defence

It is not necessary for a party to incur expense or make payment before enforcing any indemnity conferred by this Agreement.

If there is a claim against Studio Helm by any third party in respect of an indemnified matter:

(a) Studio Helm must notify the Client that the Client is required to provide indemnification; and

(b) at the expense of the Client, Studio Helm may, at its election, engage its own lawyers and will co-operate in all reasonable respects with the Client’s lawyers in defending, settling or otherwise resolving the third party claim; and

(c) Studio Helm’s legal expenses and other costs are due and payable under this indemnity by the Client at the time they become due and payable by Studio Helm to its legal advisers.

21. Limitation of liability

To the maximum extent permitted by law:

(a) should Studio Helm fail to render services in accordance with this Agreement, its liability shall be limited to, at Studio Helm’s election, supplying the services again or the payment of the costs of having the services supplied again, in whole or part as applicable;

(b) Studio Helm’s aggregate liability to the Client arising out of or in connection with this Agreement for any and all claims connected to this Agreement, shall not exceed the total amount of the fees actually paid by the Client and received by Studio Helm under this Agreement; and

(c) Studio Helm is not liable to the Client for any special, indirect, incidental or consequential losses, damages, costs, expenses or penalties whatsoever whether in contract, tort (including negligence), consumer law or strict liability or otherwise including loss of use of or under-utilisation of design, assets, labour or facilities, loss of revenue or anticipated profits, loss of goodwill, loss of market, loss of opportunity arising out of, or in any way in connection with this Agreement whether or not Studio Helm knew of the possibility of such losses, damages, costs, expenses or penalties or these were otherwise foreseeable.

22. Confidential Information

Where the Client provides Studio Helm with information that the Client advises is confidential, Studio Helm endeavours to keep the information confidential.

23. GST and VAT

Any amount payable under this Agreement is expressed exclusive of goods and services tax (GST) or value added tax (VAT) as applicable in the relevant jurisdiction. A party will, on receipt of a valid tax invoice, pay the other an amount equal to the GST or VAT liability of the party on the supply, if any, at the same time as the payment for the supply is due and payable.

24. Currency

Reference to an amount of money is a reference to the amount in Australian dollars unless otherwise specified in the Estimate.

25. Withholding tax

Payments must be made to Studio Helm free of any withholding taxes, transaction charges or bank transfer charges.

26. Survival

Any indemnity or any obligation of confidence under this Agreement is a continuing obligation, separate and independent from the other obligations of a party and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

27. Invalidity

If any provision of this Agreement is invalid, prohibited or unenforceable, the remaining provisions continue to apply.

28. Waiver

Any waiver by a party to this Agreement is only effective in the specific instance and for the purpose for which it is given.

29. Entire agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter.

30. Governing law

This Agreement is governed by and construed in accordance with the laws of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.

31. Definitions and Interpretation

In the interpretation of this Agreement, unless the contrary intention appears:

(a) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

(b) if the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day unless there is express wording to the contrary;

(c) specifying anything in this Agreement after the words ‘including’, ‘includes’ or ‘for example’ or similar expressions does not limit what else is included unless there is express wording to the contrary;

(d) headings are for ease of reference only and do not affect the meaning of this Agreement;

(e) any release or indemnity given by the Client to Studio Helm is also given by the Client to Studio Helm’s officers, employees, contractors or agents;

(f) references to a party are intended to bind their executors, administrators and permitted transferees; and

(g) obligations under this Agreement affecting more than one party bind them jointly and each of them severally.