1. Fees and Charges
The client shall pay to Cocoon Creative all agreed fees in the amounts and according to the payment schedules proposed.
The Client shall pay all invoices within fifteen (15) days of each invoice date. Cocoon Creative reserves the right to suspend all services provided to the client and withhold delivery and any transfer of ownership of any current work if accounts are not current. All grants of any licence to use or transfer of ownership of any intellectual property rights under this agreement are conditioned upon receipt of payment in full.
1.3 Progress Payments
For projects of greater than one month duration, including those delayed for any reason, Cocoon Creative reserves the right to submit monthly progress invoices against work completed.
Unless specifically otherwise provided for in any proposal, project costs include Cocoon Creative’s professional fees only and exclude all outside costs including, but not limited to, production, photography and/or artwork licences.
1.5 Project Termination
In the event of the termination of a project by the Client, the Client acknowledges that Cocoon Creative shall be compensated for the services performed through to 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 Cocoon Creative as of the date of termination, whichever is greater; and the Client shall pay all fees and expenses incurred through and up to the date of cancellation.
Unless otherwise provided for in any proposal, the Client shall pay additional charges, on a time and materials basis, for changes requested by the Client which are outside the scope of the services proposed. Cocoon Creative reserves the right to extend or modify any delivery schedule or deadline as may be required by such changes.
The Client shall review deliverables within any time frame identified for such reviews and to promptly either, (i) approve the deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Cocoon Creative. The Client acknowledges and agrees that Cocoon Creative s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to a proposal and that any delays in the Client’s performance or changes in the services or deliverables requested by Client may delay delivery of the deliverables.
The Client, within five (5) business days of receipt of any deliverable, shall notify Cocoon Creative in writing, of any failure of such deliverable to comply with proposed specifications, or of any other objections. In the absence of such notice from the Client, the deliverable shall be deemed accepted.
All production, including printing and the arrangement or brokering of print services by Cocoon Creative shall be deemed acceptable if the final 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 services.
4. Client Responsibilities
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 Cocoon Creative; (b) provision of client content in a form suitable for reproduction or incorporation into the deliverables without further preparation, unless otherwise expressly provided for in the proposal; and (c) final proofreading. 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.
4.2 No Solicitation
During the term of this Agreement, and for a period of twelve (12) 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, or any other kind of basis, any employee or agent of Cocoon Creative whether or not said person has been assigned to perform tasks under this agreement. In the event such employment or consultation occurs, the Client agrees that Cocoon Creative 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. Cocoon Creative, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law.
The Client agrees that Cocoon Creative retains the right to reproduce, publish and display any deliverables in promotional materials, design periodicals and other media or exhibits for the purposes of recognition or professional advancement.
The Client agrees that Cocoon Creative retains the right to be credited with authorship of any deliverables, including the use of a “Site Credit” link on websites.
6. Intellectual Property Provisions
6.1 Rights to Deliverables other than Final Art
Client content shall remain the sole property of the Client or its respective suppliers. The Client hereby grants to Cocoon Creative a non-exclusive, non-transferable licence to use, reproduce, modify, display and publish all client content solely in connection with Cocoon Creative’s performance of services and limited promotional uses of the deliverables.
6.2 Third Party Materials
The Client acknowledges that all third party materials are the exclusive property of their respective owners. Cocoon Creative shall inform client of all third party materials that may be required to perform the services or otherwise integrated into the final art. Under such circumstances Cocoon Creative shall inform Client of any need to licence, at the Client’s expense, and unless otherwise provided for by the Client, Cocoon Creative shall obtain the licence(s) necessary to permit the Client’s use of the third party materials consistent with the usage rights granted herein. In the event the Client fails to properly secure or otherwise arrange for any necessary licences or instructs the use of third party art, the Client hereby indemnifies, saves and holds harmless Cocoon Creative 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 client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the final art.
6.3 Preliminary Works
The Client acknowledges that Cocoon Creative retains all rights in and to all preliminary works. The Client shall return all preliminary works to Cocoon Creative within thirty (30) days of completion of the services and all rights in and to any preliminary works shall remain the exclusive property of Cocoon Creative.
6.4 Assignment of Final Art
Upon completion of services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, Cocoon Creative hereby assigns to the Client all right and title in and to final art, excluding website source code for which Cocoon Creative hereby assigns a non-exclusive, non-transferable licence.
The Client acknowledges that it shall have sole responsibility for ensuring that any proposed trademarks or final deliverables intended to be a trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless Cocoon Creative from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the trademark.
7. Relationship of the Third Parties
7.1 Independent Contractor
The Client acknowledges that Cocoon Creative is an independent contractor, not an employee of the Client or any company affiliated with the Client. Cocoon Creative shall provide services under the general direction of the Client, but Cocoon Creative shall determine, in its 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.
7.2 No Exclusivity
The Client expressly acknowledges that this agreement does not create an exclusive relationship between Cocoon Creative and the Client. The Client is free to engage others to perform services of the same or similar nature to those provided by Cocoon Creative and Cocoon Creative shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise its services.
7.3 Force Majeure
The Client acknowledges that Cocoon Creative shall not be in breach of any agreement if it is unable to complete the services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Cocoon Creative’s control (collectively, ‘Force Majeure Event’).
7.4 Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of these terms and conditions shall be in accordance with the laws of Australia and the State of New South Wales.
Last updated: 11 July 2020