Terms and Conditions.
1. DEFINITIONS
Any words capitalised in this Agreement, which have not been ascribed a definition below, have the corresponding meaning given to it in the Scope of Work.
Agreement
means these Terms and Conditions, the Scope of Work agreed to and signed by both parties from time to time as annexed to this Agreement, and any schedules or annexures attached hereto.
Client Content
means any and all content, logos, trade marks and other materials owned and controlled by the Client and provided or to be provided by the Client to Snack Drawer to be incorporated into the Deliverables.
Confidential Information
means information, facts or knowledge that is not in the public domain, including but not limited to, information relating to the general business operations of the Client or Snack Drawer, such as:
a) proposed events or work-in-progress briefs;
b) financial statements;
c) actual and proposed client lists, customer lists, licensee lists and distributor lists;
d) sales projections;
e) cost and selling price information;
f) trade secrets, know-how;
g) work-in-progress;
h) Intellectual Property Rights;
i) price lists, contracts, and negotiations;
j) business and marketing plans;
k) details relating to employees and contractors;
l) social media and website account login details; and
m) third party information disclosed by one party to the other party in confidence.
Deliverables
means the final Deliverables delivered by Snack Drawer to the Client that are not rejected by the Client. For the avoidance of doubt, Deliverables excludes: drafts, sketches, concepts, other underlying works, and rejected concepts, as well as any work created independently of this Agreement.
Delivery Date(s)
means the date or dates on which the Deliverables must be delivered to the Client as set out in the Principal Terms (or as otherwise agreed from time to time), and includes any extensions or modifications to such date.
Fees
means the fees described in the Scope of Work.
Force Majeure Event
means where the performance of either party’s obligations hereunder is delayed or becomes impossible of performance for any reason beyond its reasonable control (including but not limited to war, invasion, act of foreign enemy, hostilities whether war be declared or not, civil war or strife, rebellion, act of God, natural disaster, fire, flood, earthquake, industrial action or strike, government sanction or order, epidemic, pandemic or communicable disease outbreak, or curtailment of travel services).
Intellectual Property Rights
means all products, results and proceeds of works made, created and/or developed including, but not limited to, artwork, graphic design work, web site design, algorithms, applications, software, cinematograph films, product design, literary work, manufacturing process, business method, compositions, sound recordings, or other invention or work of creative authorship, including without limitation all copyrights, trade marks, service marks, trade dress, trade secrets, moral rights, contractual rights of non-disclosure, design and patent rights or other proprietary rights throughout the world (whether registered or unregistered).
On-Site Date
means any period of time in which Snack Drawer is required to provide the Services at a location other than the Snack Drawer office.
Purchase Order
means a document used by the Client to administrate this Agreement within the Client’s business. Where any term or provision of this Agreement and a Purchase Order are inconsistent, the terms of this Agreement shall prevail.
Scope of Work
means (individually and collectively) the initial Scope of Work attached hereto and any other Scope of Work embodying such key terms relating to a Campaign between the parties, as mutually amended and extended.
Snack Drawer
means Snack Drawer Pty Ltd and/or its employees, contractors, and subcontractors.
Talent
means any and all talent engaged by Snack Drawer to provide any part or whole of the Services and/or Deliverables.
Term
means the period of time commencing on the date of execution of this Agreement and continuing until the final Deliverable is delivered under the Scope of Work, or until otherwise terminated in accordance with the terms of this Agreement.
Third Party Content
means any and all third party owned content, materials etc., approved by the Client to be incorporated into the Deliverables, including but not limited to artwork, literary works, logos, music, and software.
2. SERVICES
2.1. In consideration of payment of the Fees, Snack Drawer will provide the Services and Deliverables described in the Scope of Work on a professional basis, in a diligent and competent manner.
2.2. Snack Drawer will not be required to deliver any Services or Deliverables not expressly described in this Agreement or any Scope of Work.
2.3. Snack Drawer may hire third party Talent as independent contractors in connection with the provision of Services and Deliverables. To the extent that Snack Drawer has contracted such Talent, Snack Drawer shall be responsible for the Talent’s compliance with this Agreement. For the avoidance of doubt, Snack Drawer shall not be responsible for any talent which has been engaged by the Client, even if Snack Drawer communicates with, directs or provides instruction to such talent.
2.4. Snack Drawer may use generative artificial intelligence technology (GenAI) in accordance with Snack Drawer's internal policies to provide the Services, including the Deliverables without the Client’s prior written consent in each case. For the avoidance of doubt, the Client authorises Snack Drawer to use any Client Content and any Third Party Content within GenAI systems and platforms in connection with the Campaign. Notwithstanding the foregoing, the use of Client Content and any Third Party Content within GenAI systems expressly excludes generative artificial intelligence training or modelling.
3. GRANT OF RIGHTS
3.1. Upon full payment of the Fees, Snack Drawer shall grant to the Client the right to publish, communicate to the public, reproduce, perform to the public, and otherwise exploit the Deliverables in accordance with the Usage Terms. For the avoidance of doubt, the Client agrees that it shall not (and will not permit anyone else to) adapt, modify, or edit (except to re-size as contemplated in this Agreement), or create derivative works from, any part or whole of the Deliverables or any other work made or authored by Snack Drawer.
3.2. The Client will not sell, licence, assign or otherwise dispose of the rights granted under this Agreement without the prior written approval of Snack Drawer, save that the Client may sub-licence the rights granted under this Agreement to the end client (if any) without reference to Snack Drawer provided always that the Client remains liable to Snack Drawer under this Agreement, and that the Client ensures that the end client is made aware of and agrees to comply with the terms of this Agreement, as if the end client were a party to this Agreement, including without limitation the Usage Terms and terms of any Third Party Content agreement.
3.3. Snack Drawer may, upon first use of the Deliverables by the Client, reproduce, publish, perform and communicate the Deliverables to the public, and communicate Snack Drawer’s involvement in the Campaign generally, within Snack Drawer’s portfolios, showreels, and websites (including social media pages), in galleries and other exhibits, archival books, and submission into awards, for the purposes of professional recognition.
4. SCHEDULE
4.1. The Client understands and agrees that Snack Drawer is not responsible if any On-Site Date or Delivery Date is or is required to be rescheduled for reasons beyond Snack Drawer’s control (including but not limited to bad or poor weather conditions or a Force Majeure Event) or if the Client fails to provide instruction, information, approval, Client Content, a safe working environment etc., in a timely manner or as requested by Snack Drawer.
4.2. In the event that an On-Site Date and/or Delivery Date is delayed or rescheduled at no fault of Snack Drawer, the Client acknowledges that Snack Drawer’s availability may be affected and/or Snack Drawer may not be available at any time close to the original On-Site Date or Delivery Date (as applicable), though Snack Drawer will use reasonable endeavours to reschedule to a mutually convenient time as soon as practicable.
4.3. Snack Drawer will use reasonable endeavours to highlight any likely change to any On-Site Date or Delivery Date in a timely manner and will discuss the implications of such extension with the Client, which can include reimbursement for any costs.
4.4. For the avoidance of doubt, where an On-Site Date or Delivery Date cannot be rescheduled or is otherwise cancelled by the Client, the Agreement will be taken to be terminated and clause 9.4 will apply.
5. CLIENT RESPONSIBILITIES AND ACKNOWLEDGEMENTS
5.1. The Client agrees to:
(a) provide full and clear instructions to Snack Drawer;
(b) coordinate the Client’s decision-making activities with applicable decision-making stakeholders;
(c) thoroughly check any and all proofs of Deliverables prior to acceptance and use;
(d) approve any Deliverables (which have been sent to the Client for approval) by the deadlines set out in the relevant Scope of Work or within 48 hours (whichever is sooner). Failure to approve or reject such Deliverables within the relevant deadline shall be considered acceptance;
(e) comply with the licence terms and conditions and pay any and all associated fees associated with the inclusion of any Third Party Content in the Deliverables; and
(f) only use the Deliverables in accordance with the Usage Terms.
5.2. At each On-Site Date, the Client agrees to:
(a) provide a safe working environment for Snack Drawer (including without limitation any of its employees or sub-contractors);
(b) move all heavy furniture, props, and other items as reasonably required by Snack Drawer. For the avoidance of doubt, neither Snack Drawer nor any Talent will be required to lift or move any item that exceeds six kilograms. Further, neither Snack Drawer nor any Talent will be required to work from any height including on any ladder, stool, chair, or scaffolding if in Snack Drawer or the Talent’s reasonable opinion such height is believed to be unsafe;
(c) provide a main meal (subject to any pre-advised dietary requirements) or reimbursement for the same, for Snack Drawer and the Talent where Snack Drawer and/or the Talent is required to attend a full-day on location away from Snack Drawer’s studio;
(d) subject to the Scope of Work, not take nor permit any person to make any recordings (including behind the scenes footage or photographs) of Snack Drawer, the Talent, or any work product of Snack Drawer or the Talent, without its prior written consent in each instance. For the avoidance of doubt, Snack Drawer shall have the right to demand the removal and deletion of any content or material that breaches this provision; and
(e) ensure that all guests and staff of the Client adhere to all lawful orders and directions given by Snack Drawer on any On-Site Date which may interfere with the provision of the Services.
6. CHANGE OF SCOPE
6.1. Snack Drawer understands that before or after the Delivery Dates, the Client may desire to vary the Project, Deliverables or other aspect of the Scope of Work (Change of Scope), The Client acknowledges and agrees that any Change of Scope (including delays caused by the Client), may impact the Scope of Work, including the Fees, Delivery Date(s) and/or schedule. Snack Drawer will advise the Client of the impact of the changes which, upon acceptance in writing by the parties, will supersede all applicable parts of the Scope of Work.
6.2. The Client agrees and acknowledges that:
(a) in the event that any more than two (2) rounds of consolidated feedback for each stage of the project is required, Snack Drawer will follow the Change of Scope process described in clause 6.1 above;
(b) in the event that any re-shoots or re-edits are required, Snack Drawer shall use its best endeavours to procure the same however the Client acknowledges that the Talent may no longer be available;
(c) any re-shoots or re-edits required are not included in the Fees and Snack Drawer shall provide the Client with an estimate for such re-shoots or re-edits; and
(d) in the event that the Services and/or Deliverables involves the Talent and, for any reason beyond the control of Snack Drawer, the Talent is not available to Snack Drawer to provide any part or whole of the Services and/or Deliverables, Snack Drawer shall use best endeavours to find a suitable replacement or otherwise shall discuss alternative solutions with the Client.
7. FEES
7.1. The Client agrees:
(a) to pay Snack Drawer the Fees and Expenses in accordance with the Scope of Work and any invoice rendered by Snack Drawer;
(a) the Client is liable to pay the Fees even if it is acting for the End Client and such End Client has not paid the Client for its services;
(b) that the Fees are non-refundable and non-returnable;
(c) that the Fees are payable by the Client even if the Deliverables are not used (in whole or part) by the Client; and
(d) no variation to the Fees, Services, or Deliverables will be made without the prior written agreement of Snack Drawer.
7.2. The Client agrees to pay and/or reimburse Snack Drawer for Snack Drawer’s travel and accommodation expenses (including ground transport when interstate, and/or parking costs where no free parking space has been provided) for any On-Site Date, and for any special materials and/or equipment required by Snack Drawer to fulfill its obligations under this Agreement that are not usually used by Snack Drawer in its normal course of work. Snack Drawer will use its best endeavours to provide the Client with estimated expenses for the Client’s prior approval.
7.3. If any part of the Fees is not received in accordance with the Scope of Work, Snack Drawer may:
(a) exercise a lien against any of the Deliverables;
(b) suspend providing the Services until such time that all outstanding payments are paid;
(c) charge the Client simple interest on any overdue amount, at the rate of seven percent (7%) per annum; and
(d) hold the Client liable for any debt collection and/or solicitors fees, commissions, or contingency fees incurred by Snack Drawer in connection with the late payment by the Client and recovery of any Fees. Such Fees shall be treated as a liquidated debt payable by the Client upon demand.
8. CREDIT
The Client shall afford Snack Drawer a credit as the creator of the Deliverables in all media now known or hereafter devised (including but not limited to editorial pieces, social media posts, marketing, print, award show/entries, and for any other use where it is customary to receive a credit). Additionally, the Client shall ensure that where the credit is afforded to Snack Drawer online, the credit shall also include links to Snack Drawer’s website and each of its social media sites.
9. TERMINATION
9.1. Snack Drawer may immediately suspend or terminate (at its sole discretion) the rights granted under the Usage Terms should the Client fail to pay the Fees in accordance with the Scope of Work.
9.2. Without limiting clause 9.1 above, if either party breaches this Agreement (including any client responsibility under clause 5) and such breach is not rectified within 14 days after written notice, the aggrieved party may, in addition to all of its other rights and remedies at law or otherwise, terminate this Agreement on giving written notice to the defaulting party. For the avoidance of doubt, the Client shall have no grounds to reject the Deliverables or terminate this Agreement where the Deliverables are consistent with the style of Snack Drawer or have been made in accordance with the Scope of Work or other directions provided by the Client (if any).
9.3. This Agreement shall immediately terminate if the Client enters into voluntary or compulsory administration, liquidation, receivership or bankruptcy or admits in writing its inability to meet its debts or other obligations as they become due.
9.4. Upon termination of this Agreement:
(a) the grant of rights in the Deliverables shall automatically terminate and all rights in and to the Deliverables shall revert to Snack Drawer;
(b) all rights in and to any Intellectual Property Rights shall revert to the owner of such rights; and
(c) other than due to breach by Snack Drawer, the Client shall immediately forfeit the Fees, and additionally pay all costs and expenses incurred as at the date of termination.
9.5. In addition to Snack Drawer’s other rights or remedies in law or equity, if the Client breaches or threatens to breach the terms of this Agreement, Snack Drawer will be entitled to seek injunctive relief and/or specific performance.
9.6. Notwithstanding the foregoing, the parties agree that in the event of a Force Majeure Event, the parties must use their best endeavours to work together and take appropriate steps to mitigate their losses. This may include agreeing to modify the scope of the Deliverables or re-scheduling any On-Site Date or Delivery Date to the extent that it does not unreasonably disadvantage a party to do so. If the parties are unable to mutually agree to alternate means to perform this Agreement, then neither party will be considered in default of this Agreement, and Snack Drawer is entitled to retain any Fees paid to date, and the Client will additionally pay Snack Drawer for any fees, costs, and expenses incurred as at the date of termination.
10. WARRANTIES
10.1. The Client warrants and unconditionally guarantees that all Client Content is owned and/or controlled by the Client, or that the Client has full right and authority from the rightful owner to authorise the use of such elements as contemplated under this Agreement.
10.2. The Client acknowledges and agrees that all right title and interest in and to any and all Intellectual Property Rights as well as other property owned, made, created and/or developed by Snack Drawer in connection with the Services and Deliverables is solely and exclusively owned by Snack Drawer.
10.3. To the fullest extent permitted by law, Snack Drawer excludes all representations, warranties and terms (whether express or implied) in connection to the provision of the Services and Deliverables other than those expressly set out in this Agreement.
10.4. If any legislation operates to prohibit or restrict the exclusion, restriction or modification of any implied warranties, conditions or obligations, then to the fullest extent permitted by law, Snack Drawer limits its liability in respect of any such claim to, at its option: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
11. CONFIDENTIALITY
11.1. The parties agree that except as directed by the other party or as permitted in this clause 11, the parties will not disclose, cause to be disclosed or in any way facilitate disclosure of any Confidential Information to any person.
11.2. The non-disclosure obligations specified in this Agreement will not apply to the extent that such Confidential Information is:
(a) authorised to be disclosed by the controlling party of the Confidential Information, with prior written consent;
(b) required to be known by a third party for the performance of this Agreement;
(c) generally known to the public at the time of disclosure or becomes generally known through no wrongful act on either party’s part; or
(d) required to be disclosed by law, provided that the disclosing party gives the other party enough advance notice to enable it to object to the disclosure of the Confidential Information and only that part of the Confidential Information that is required is revealed.
12. NON-SOLICITATION
12.1. Each party acknowledges that during the Term and for 12 months after the expiry thereafter, neither party may canvass, solicit or attempt to entice away from the other party, any employee or contractor of the other party who was an employee or contractor of the other party during the Term.
13. INDEMNITY/LIABILITY
13.1. The Client agrees to fully indemnify and hold Snack Drawer and each of its subsidiaries and directors, officers, employees, contractors, agents and licensors 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 the Client’s breach of any provision or warranty of this Agreement, or the Client’s violation of any applicable law or the rights of any third party. If Snack Drawer is found to be liable for any claims, losses, damages, costs or injuries arising out of this Agreement, the quantum of the sum of all liability or liabilities is strictly limited to the value of the Fees.
13.2. Notwithstanding anything to the contrary, neither party shall be under any liability whatsoever to the other party in respect of any consequential loss, damage, or injury, nor any punitive, additional or exemplary damages, however caused, which may be suffered or incurred (directly or indirectly) in respect to this Agreement.
14. GST
14.1. All Fees are exclusive of good and services tax (“GST”). The Client agrees to pay an additional amount of GST if and to the extent the Fees is considered a taxable supply for which Snack Drawer must account for GST, subject to Snack Drawer providing the Client with a tax invoice for the appropriate amount which complies with A New Tax System (Goods and Services) Act 1999.
14.2. If the Client is required by law to deduct withholding tax from any payment due hereunder to Snack Drawer (“Withholding Tax”), the Client agrees to gross up the payments to Snack Drawer to an amount equal to the amount deducted to the relevant taxation authority in accordance with applicable taxation laws and supply Snack Drawer with such receipts (within 30 days of such deduction) to enable Snack Drawer to reclaim that deducted amount from the relevant statutory body. The Client will provide Snack Drawer reasonable assistance to allow Snack Drawer to claim a tax credit for the Withholding Tax. The parties shall cooperate in good faith and use prompt and reasonable efforts to minimise the Withholding Tax due and obtain benefits under applicable tax treaties.
15. GENERAL
15.1. The parties are independent entities and nothing in this Agreement constitutes or creates any relationship of employment, joint venture, agency, trust or legal partnership between them and agree that the Deliverables have not been made or created as a "work for hire" under any copyright law.
15.2. Each party warrants that it has the full right, power and authority to enter into this Agreement.
15.3. This Agreement and any document expressly referred to in it represent the entire understanding and agreement between the parties and may only be amended in writing.
15.4. If any provision of this Agreement shall be held to be invalid or unenforceable in any way the remaining provisions shall not in any way be affected.
15.5. Failure or omission by either party to enforce or require strict performance or timely compliance with any provision of this Agreement shall not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.
15.6. Where any Purchase Order is submitted by the Client in relation to this Agreement, the parties agree that in the event of a conflict of terms between this Agreement and such Purchase Order occurs, the terms of this Agreement shall prevail.
15.7. This Agreement shall be read and construed according to the laws of the State of Victoria, Australia and the parties submit to the jurisdiction of that State.
15.8. This Agreement may be executed in any number of counterparts, each of which will be an original and together will constitute one and the same instrument. Execution and delivery by electronic signature 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. Client will also signify its acceptance of this Agreement by continuing to provide instructions to Snack Drawer despite no formal execution of these terms or relevant Scope of Work.