Standard Terms
DEFINITIONS
Capitalised terms used but not defined herein have the meaning assigned to them in the Key Terms.
Confidential Information includes all inventions and information relating to Snack Drawer or the Client, whether recorded or unrecorded, including but not limited to:
a. information or materials regarding the historical, current or future business interests, ideas, concepts, plans, methodology or affairs;
b. financial data;
c. employee or contractor information;
d. products or services;
e. client information (including briefs and projects);
f. campaigns;
g. contact lists and databases;
h. customer and other statistical information;
i. marketing or strategic plans and reports;
j. business proposals;
k. notes, products, know how, trade secrets or other data;
l. planning or marketing procedures, techniques or information;
m. any and all Intellectual Property Rights;
n. account logins and passwords; and
o. information relating to this Agreement;
which is generally not made available to the public by the owner of such Confidential Information.
Creative Brief means the briefing document setting out the strategy and expectations of the Project.
Deliverables means the deliverables (individually and collectively) described in the Key Terms and any and all works, concepts and ideas (whether or not such concepts and ideas are fully fleshed out or realised), and underlying works made, created, or developed by the Talent in the course of providing the Services (whether or not such works are capable of registration); and any modification, edit, change, adaptation, or appropriation of the foregoing. For the avoidance of doubt, Deliverables includes but is not limited to artworks, literary works, designs, graphic design, illustrations, font types, photographs, films, plans, drawings, sketches, layouts, renderings, ideas, concepts, or other work produced by the Talent.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of products, results and proceeds of works made, created and/or developed including without limitation all copyrights, trademarks, service marks, trade dress, trade secrets, moral rights, contractual rights of non-disclosure, design and patent rights or other proprietary rights throughout the world.
Payment Terms means Snack Drawer’s standard payment terms to suppliers and trade creditors which are 30 days from month end i.e. 30 days from the end of the month in which the invoice is received by Snack Drawer.
Personnel of a party means that party’s officers, employees, agents, contractors, and sub-contractors (which includes its advisers, suppliers and service providers), together with all such representatives of the party’s contractors or sub-contractors, and so on.
Talent means the Talent and each of its Personnel.
Term means the period staring at the date of execution of this Agreement and continuing on rolling 12-month periods, or until such time that this Agreement is terminated in accordance with clause 3.
2. PROVISION OF SERVICES AND DELIVERABLES
1. During the Term, the Talent must provide and deliver the Services and Deliverables:
i.in accordance with this Agreement and all reasonable instructions issued by Snack Drawer from time to time;
ii.on a professional, competent, and timely basis and in a diligent, skilful manner consistent with the best practices in the Talent’s industry;
iii.in accordance with all relevant work, health, and safety legislations and any work, health, and safety practices or policies of Snack Drawer;
iv.which are fit for their intended purpose; and
v.using its own Personnel, resources, equipment, and facilities.
2. During the Term, Snack Drawer may periodically request written reports concerning the Talent’s progress, project status, cost data, and other matters pertaining to the Services, and the Talent shall promptly provide such reports to Snack Drawer at no additional charge. At either party’s reasonable request, Snack Drawer and the Talent shall meet on a periodic basis to discuss the Services and Deliverables. At such meetings, the Talent shall notify Snack Drawer of any problems related to the provision of the Services and Deliverables including all problems which might affect the cost or time for completion of the Services and Deliverables, and provide a suggested solution to mitigate or eliminate any impact caused by such problem(s). Such meetings may be conducted face to face or if this is not practicable, through the use of video or telephone conference technologies.
3. All Deliverables are subject to the acceptance by Snack Drawer, in its sole discretion (such acceptance not to be unreasonably delayed or withheld), save that the Talent acknowledges that such acceptance may be dependent on the approval of Snack Drawer’s end client.
4. As full and complete consideration for the completion of Services and Deliverables, Snack Drawer shall pay the Talent the Fees, subject to receipt of a valid tax invoice addressed to Accounts or accounts@snackdrawer.com and acceptance of the Deliverables and the Payment Terms.
5. In addition to payment of the Fees, the Talent will be entitled to invoice Snack Drawer for all reasonable expenses incurred by the Talent on behalf of Snack Drawer provided that such expenses have been approved by Snack Drawer in writing prior to the Talent incurring such expense (Expenses).
6. The Talent agrees that no compensation other than the Fees and Expenses shall be paid by Snack Drawer for the Talent’s performance and delivery of the Services and Deliverables, including for any overages, miscellaneous costs and expenses incurred by the Talent without Snack Drawer’s prior written consent.
7. The Talent shall report directly to the Key Contact, or any other persons as nominated by Snack Drawer from time to time.
8. The Talent acknowledges that Snack Drawer shall have the right to seek alternative services and deliverables similar to the Services and Deliverables hereunder from any third party in its discretion, without obligation or reference to the Talent.
9. The Talent may engage in other work and consulting assignments during the Term. However, the Talent must immediately and fully disclose to Snack Drawer any obligation or interest that the Talent may have at any time during the term of this Agreement that conflicts, or that may conflict, with the Talent's obligations under this Agreement or where such interest competes with the interests of Snack Drawer.
3. TERMINATION
1. This Agreement may be terminated by Snack Drawer in the following circumstances:
a. upon the failure by the Talent to perform any material obligation under this Agreement, and where the Talent does not remedy such failure within five (5) days (or such other reasonable period of time stipulated by Snack Drawer) of notice to do so;
b. if Snack Drawer reasonably believes that the Talent will not be able to meet its obligations hereunder (including not being able to meet any applicable schedule or delivery date(s));
c. the Talent is convicted of a criminal offence involving fraud or dishonesty or an offence which, in the opinion of Snack Drawer, affects the Talent's obligations under this Agreement;
d. the Talent conduct themselves in a way tending to bring them or Snack Drawer or the Client into disrepute;
e. the Talent has a conflict of interest that cannot be resolved to the satisfaction of Snack Drawer; or
f. if the Client suspends or terminates their contract with Snack Drawer, Snack Drawer may immediately suspend or terminate this Agreement upon providing notice of the same.
2. Either party may otherwise terminate this Agreement giving 30 days written notice.
3. In the event of termination for any reason, the Talent shall only be entitled to a prorated share of the Fees calculated by the percentage of Services actually completed by the Talent, and Deliverables received and accepted by Snack Drawer, as at the date of termination,. For the avoidance of doubt, payment is subject at all times to Snack Drawer’s receipt of payment from any Client (as applicable), and no fees shall be due and payable to the Talent under this clause until Snack Drawer is paid by the Client.
4. In the event of termination for any reason the Talent acknowledges that:
a. Snack Drawer shall not be liable to the Talent for any fees, costs or expenses except for those provided for in clause 3.3; and
b. Snack Drawer shall not be liable for any damages, including, without limitation, any damages arising from agreements between the Talent and any third party which relate to this Agreement.
4. ASSIGNMENT OF RIGHTS
1. The Talent grants Snack Drawer (and it’s authorised representatives) the irrevocable, worldwide, perpetual, royalty-free right, throughout the world in perpetuity in all media now known or hereafter devised, to:
a. film, record, photograph, transcribe and otherwise capture the Talent’s name, likeness, image, voice, appearance, performance and biographical material (“Recorded Materials”) and authorise others to do so on behalf of Snack Drawer;
b. reproduce, publish, perform, communicate to the public or otherwise exploit, in Snack Drawer’s sole discretion, the Recorded Materials (whether in whole or in part); and
c. alter, edit, adapt, re-contextualise, mix or duplicate, use or re-use the Recorded Materials and/or to combine such Recorded Materials with other images, recordings, printed matter or any other media.
2. The Talent hereby irrevocably assigns to Snack Drawer absolutely all Intellectual Property Rights, upon creation, so that Snack Drawer owns all right, title and interest in and to the Deliverables (which for the purpose of this Agreement shall include any Recorded Materials) in perpetuity throughout the universe without restriction such that Snack Drawer (and any third party authorised by it) will be entitled to use or not use, reproduce, publish, copy, modify, recontextualise, edit, adapt, communicate, transmit, sell, licence, assign, dispose, destroy, and otherwise exploit the Deliverables (in whole or in part) in all media now known or hereafter devised. To the extent that such an assignment or transfer is not permitted under law, the Talent agrees to grant Snack Drawer an irrevocable, exclusive, royalty-free licence (and licence to any third party authorised by it) to use or not use (in whole or in part) the Deliverables without restriction in perpetuity throughout the world in all media now known or hereafter devised.
3. Where any third party content is embodied in the Deliverables, the Talent shall sub-licence Snack Drawer sufficient rights to enable Snack Drawer to use the Deliverables in the manner contemplated by this Agreement (provided that no third party content is included in the Deliverables without the prior written consent of Snack Drawer in each instance).
4. For the avoidance of doubt, the Talent may not reproduce, publish, nor communicate to the public, the Deliverables, in any form whatsoever including but not limited to its resume, website, portfolio, showreel, or social media, without the prior written consent or approval of Snack Drawer or Client. In any case where Snack Drawer’s consent or approval is given for the Talent to reproduce, publish or communicate any part of whole of the Deliverables, they must provide the following credit: ‘Produced by Snack Drawer’.
5. To the extent that the Talent has any so-called “moral rights” in the Deliverables, the Talent irrevocably consents to waive all moral rights it may have in such Deliverables. Without limiting the foregoing, the Talent voluntarily and unconditionally consents to any and all acts or omissions by Snack Drawer, or any person authorised by Snack Drawer (including its licensees and assigns), in connection with the Deliverables, which would otherwise infringe the Talent’s moral rights in any part or whole of the Deliverables.
6. The Talent acknowledges that:
a. it shall not be entitled to any payment, fee or consideration from Snack Drawer (or any third party authorised by it) for use or non-use of the Deliverables or exercise of any of the foregoing rights, other than the Fee; and
b. Snack Drawer is not any obligation to use any of the Deliverables.
7. The Talent shall not directly or indirectly sell, licence, assign, use, or otherwise dispose of any rights (including Intellectual Property Rights) in or to the Deliverables without the prior written approval of Snack Drawer.
8. At Snack Drawer’s written request, the Talent must do all things and execute all documents which Snack Drawer determines is necessary to give effect to the assignments and grant of rights referred to in this clause 4.
9. In the event that the Talent fails to execute and deliver any document or do any act required by this clause 4 within seven (7) days of any request in writing from Snack Drawer, the Talent, irrevocably and for valuable consideration, gives Snack Drawer their power of attorney to execute the same for the Talent.
5. CONFIDENTIAL INFORMATION
1. Confidentiality.
The Talent acknowledges that in the performance of its obligations hereunder, the Talent shall receive or become aware of Confidential Information and any unauthorised disclosure of any part or whole of the Confidential Information would irreparably damage Snack Drawer and/or the Client.
2. Non-Disclosure.
a. The Talent agrees, except as directed by Snack Drawer or as permitted in this clause 5, the Talent will not at any time during or after the Term disclose any Confidential Information to any person.
b. The non-disclosure obligations of the Talent specified in this Agreement shall not apply to the extent that such Confidential Information:
i.is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Talent; or
ii.is required to be disclosed by law (provided that the Talent gives Snack Drawer enough advance notice to enable it to object to the disclosure of the Confidential Information and the Talent reveals only that part of the Confidential Information that it is required to disclose).
3. Limited Use.
The Talent understands and acknowledges that the Talent is receiving access to Confidential Information in order to facilitate the performance of the Services and Deliverables. The Talent represents and warrants that it will not access, use, nor retain Confidential Information for any purpose other than that necessary to facilitate the performance of the Services and Deliverables unless specifically authorised in writing by Snack Drawer. The Talent will make provisions to keep the Confidential Information partitioned from any third-party data. The Talent shall report to Snack Drawer any use or disclosure of Confidential Information of which it becomes aware that is not expressly permitted by this Agreement.
4. Deletion of Confidential Information.
As soon as possible after any Confidential Information (or a portion thereof) is no longer needed by the Talent to facilitate the performance of the Services and Deliverables, and in any event upon termination or expiration of this Agreement for any reason, the Talent shall immediately return to Snack Drawer or, in relation intangible or digital Confidential Information, securely and irretrievably delete and/or destroy all Confidential Information (including, without limitation, all electronic copies such as on hard drives, backup tapes, portable devices, optical, magnetic, or other storage media, as well as all hard copies) and provide a certificate of completion of the same.
5. Non-Disparagement.
The Talent agrees to not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticise the personal business or the business reputation, practices, or conduct of Snack Drawer or the Client. The Talent acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, competitors, strategic partners, vendors, suppliers, employees or contractors (past and present), and former, current or potential future clients.
6. EXCLUSIVITY AND RESTRAINT
1. The Talent must ensure that during the Exclusivity Period:
a. the Talent does not engage in any activity connected with;
b. the Talent’s name, voice or likeness is not used in connection with; and
c. videos or other content created by the Talent are not used in connection with:
any sponsorship of or by, or endorsement of, or any other form of advertising, promotion or marketing of, any Client Competitor.
2. The Talent agrees that for a period of twelve (12) months from termination or expiration of the Term, the Talent will not directly or indirectly in any capacity (whether as a service provider, employee, principal, agent, partner, shareholder, unit holder, joint venturer, director, trustee, beneficiary, manager, consultant or adviser):
a. canvass, solicit, or endeavour to entice away from Snack Drawer (or any of its related bodies corporate) the Client; or
b. solicit, interfere with or endeavour to entice away from Snack Drawer (or any of its related bodies corporate) any employee, contractor, or service provider who was an employee, contractor, or service provider during the Term.
7. CONTRACTOR’S PERSONNEL
1. The Talent warrants to Snack Drawer that each individual it instructs to provide and/or deliver any part or whole of the Services and Deliverables are the Talent's Personnel. The Talent shall not engage any other person to perform the Services or Deliverables hereunder without the prior written consent of Snack Drawer in each instance (which shall not be unreasonably withheld or delayed).
2. The Talent acknowledges that it has the sole responsibility for and warrants that it will ensure payment of any:
a. workers compensation insurance policies and related payments;
b. wages and payments payable to its Personnel;
c. any income tax payable under any applicable laws with respect to itself or its Personnel; and
d. any superannuation contributions payable to itself or its Personnel.
8. REPRESENTATIONS AND WARRANTIES
1. The Talent represents and warrants that:
a. the Services and Deliverables do not infringe upon nor violate any Intellectual Property Rights, privacy, publicity, property, proprietary, or other right of any third party;
b. the Deliverables are not misleading, deceptive, or contain any material which is offensive or defamatory;
c. the technology, equipment, materials, and resources used by the Talent to provide the Services and Deliverables do not infringe upon nor violate any Intellectual Property Rights, privacy, publicity, property, proprietary, or other right of any third party;
d. the Talent will disclose, in advance of delivery to Snack Drawer, any Deliverables which are based on existing works of the Talent;
e. the Talent has the proper skill, training, and background so as to be able to perform the Services and Deliverables as contemplated by this Agreement;
f. the performance of the Services and Deliverables hereunder shall not directly or indirectly violate any applicable laws or regulations, or any other agreements or obligations, throughout the world;
g. the Contractor shall obtain all rights, authorities, assignments, consents, and waivers in favour of Snack Drawer, consistent with the rights granted herein;
h. the Talent is responsible for any costs and fees relating to the Talent’s business and/or any equipment used to perform the Services and Deliverables hereunder, including without limitation, software, hardware, Personnel, premises and technology (unless such resources are provided by Snack Drawer); and
i. the Talent will not do nor omit doing any action which might reasonably be expected to damage the business and/or reputation of Snack Drawer or the Client.
2. Each party represents and warrants to the other party that:
a. such party has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder;
b. this Agreement shall constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and
c. such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
9. INSURANCE
1. At all material times, the Talent must hold and maintain all insurance cover required by law. Without limitation, the Talent shall hold and maintain necessary insurance as directed by Snack Drawer from time to time. When required by Snack Drawer, the Talent must produce evidence of the appropriate insurances.
10. INDEMNIFICATION
1. The Talent agrees to fully indemnify and hold Snack Drawer, its subsidiaries and directors, officers, Personnel, agents, licensors and the Client harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), whether in contract, tort, under statute or otherwise, directly or indirectly as a result of (i) the Talent’s breach or non-performance of any provision or warranty of this Agreement; (ii) any Personnel of the Talent being found or deemed to be employees of Snack Drawer at common law or under statute; (iii) the Talent’s violation of any applicable law or the rights of any third party; (iv) any allegation that the Services or Deliverables infringe upon a third party’s Intellectual Property Rights or misappropriates a third party’s confidential information; (v) or any allegation of personal or bodily injury or property damage to the extent such injury and/or damage results from the gross negligence or fault of Talent or its Personnel.
11. GENERAL PROVISIONS
1. Independent Contractor.
The parties acknowledge their independent relationship and agree that the relationship between them is solely that of a company and independent contractor and that nothing in this Agreement shall be construed to constitute a different relationship between them, such as that of employer/employee, agent/principal, partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. Personnel of either party shall not be entitled to benefits of any nature whatsoever provided by the other party to its Personnel.
2. Withholding Tax.
The Talent is solely responsible for payment of all taxes in respect of the Fees and Expenses. Should Snack Drawer become obliged by any applicable law to deduct any tax from or in respect of or by reason of any payment made to the Talent, then Snack Drawer may, without liability to the Talent, deduct such sums from any payment made to the Talent.
3. Authority To Contract.
Neither party (nor their respective agents Personnel or representatives) shall have the right to enter into any contract or agreement on behalf of the other party. Without limiting the generality of the foregoing, neither party shall sign any contract on behalf of the other party, nor accept any payment from any third party of an obligation due the other party, and shall not make any representation, guarantee, condition, or warranty unless it is expressly authorised in writing by the other party.
4. Force Majeure.
Neither party shall be liable for any failure to perform or for delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control, including without limitation, acts of nature, acts of terrorism, governmental actions, fire, flood, or natural disaster.
5. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and referenced in this Agreement, and supersedes and terminates any prior agreements between the parties (written or oral) with respect to the subject matter hereof. This Agreement may not be altered or amended except by an instrument in writing signed by both parties.
6. Non-Waiver.
No failure of a party to exercise any right given it hereunder, or to insist upon strict compliance by the other party with any obligation hereunder, and no custom or practice of parties at variance with the terms hereof shall constitute a waiver of such parties’ rights to demand exact compliance with the terms hereof. Waiver by a party of any particular default by the other party shall not affect nor impact such party’s rights in respect to any subsequent default of the same or of a different nature, nor shall any delay or omission of such party to exercise any rights arising from such default affect or impair such party’s rights as to such default or any subsequent default.
7. Construction.
The headings of the sections of this Agreement are for convenience only and in no way modify, interpret or construe the meaning of specific provisions of this Agreement.
8. Severability.
In case any part or whole of any provision(s) contained in this Agreement should be held invalid, illegal, reduced, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. Any illegal or unenforceable term shall be deemed to be void and of no force and effect only to the minimum extent necessary to bring such term within the provisions of applicable law, and such term, as so modified, and the balance of this Agreement, shall then be fully enforceable.
9. Survival.
Regardless of the reasons for the expiration or termination of this Agreement, any term or provision that is intended to survive the expiry or termination of this Agreement (including without limitation 4, 5, 6, 7, 8, 9, 10), shall survive.
10. Assignment.
Except as provided for in this Agreement, the Talent must not, without the prior written consent of Snack Drawer, subcontract, transfer, or assign any rights or obligations under this Agreement. Snack Drawer may, without the prior written consent of Talent, subcontract, transfer, or assign any rights or obligations under this Agreement.
11. Jurisdiction.
This Agreement is to be construed and governed by the laws of the State of Victoria, Australia, without regard for the choice of law rules utilised in that state. Venue shall be proper in any court of competent jurisdiction in the State of Victoria.
12. Counterparts.
This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were on the same instrument. Execution and delivery of an electronically signed or digitally scanned copy of this Agreement shall constitute, for purposes of this Agreement, delivery of an executed original and shall be binding on the parties.