Terms and Conditions | Jessica Kay

Terms & Conditions

1. Agreement Overview

These terms and conditions constitute the agreement between the Designer and the Client for the provision of art and design products and/or services. By purchasing our products and/or services, you agree to be bound by the terms and conditions herein. This agreement supersedes any prior understandings, agreements, or representations, whether written or oral, regarding the subject matter.

1.1 Governing Law and Standard Form Contracts
Our terms and conditions are governed by the Australian Consumer Law (ACL) and adhere to Australian legislation. They are classified as 'standard form' contracts, provided by the business and accepted by clients on a 'take it or leave it' basis. This means they include standard terms and conditions and are not open to negotiation. By purchasing our products and/or services, you accept these terms and conditions.

1.2 Access to Terms and Conditions
Our terms and conditions are available for review on our website’s terms and conditions page. Links to these terms will be included in all digital quotes and invoices. If you need a PDF copy, please request one via email.

1.3 Amendments to the Agreement
If there are amendments to this agreement, such as changes to legal terms, the Designer will notify the client electronically. This may be in the form of a banner or pop-up message and will include information directing clients to review the updated terms and conditions. Clients are responsible for staying updated on any changes by regularly visiting our website.

2. Fees, Payments, and Termination

2.1 Fee Structure
Our fees are structured to accommodate different types of projects and client needs. Below is a breakdown of how charges are determined:

Fixed Fee Agreement: Fees are charged based on a fixed amount as detailed in any quote or agreement in writing.
Hourly Fee Agreement: If a fixed-fee arrangement does not apply, the hourly rate is $60 plus tax.

Charges are calculated for time spent, rounded to the nearest fifteen (15) minutes. For example, time spent up to fifteen (15) minutes is one (1) unit, and time spent between fifteen (15) and thirty (30) minutes is two (2) units.

2.2 Work-Life Balance and Out-of-Office Rates
Designated working hours are Monday to Friday, 10 am to 5 pm, with no additional charges during these times. For work requested outside these hours, premiums apply:

Weekday Out-of-Office Hours: 25% premium on the standard rate.
Weekend Out-of-Office Hours: 50% premium on the standard rate.
Urgent Work Premium: An additional 25% premium applies cumulatively.

2.3 Fee Adjustments
Rates are reviewed periodically and may be updated. For long-term projects, cost estimates may be adjusted. Any rate changes will be communicated with at least 30 days' notice.

2.4 Non-Refundable Deposit
A 50% deposit of the total project cost is required and non-refundable. This deposit secures the project, covers initial setup, and confirms the Designer’s commitment. The deposit does not cover additional payments for services or expenses beyond the deposit amount.

2.5 Refunds for Services Not Rendered
If services have not commenced, a refund may be considered minus a 25% administrative fee for costs incurred up to that point.

2.6 Refunds for Non-Delivery
A partial refund may be considered if the final product is not delivered on time due to unforeseen delays, provided the client has met all obligations, including timely feedback and materials.

2.7 Non-Refundable Circumstances
Refunds are not provided in the following cases:

Change of Mind: If the client decides not to proceed after work has begun.
Additional Revisions: Costs for revisions beyond the agreed scope are non-refundable.
Completed Work: No refunds once the final product has been delivered and approved.
Client-Caused Delays: No refunds for delays caused by the client’s failure to provide materials or feedback.

2.8 Force Majeure
Refunds may be considered if delays or cancellations are due to circumstances beyond control, such as natural disasters or government actions. Both parties agree to a reasonable extension of the project timeline before considering refunds.

2.9 Intellectual Property Issues
No refunds will be issued if the project is halted due to intellectual property disputes initiated by third parties. The client is responsible for ensuring that all materials provided do not infringe on third-party rights.

2.10 Partial Deliverables
If partial deliverables have been provided and the project is terminated, a refund may be issued for the unfinished portion, calculated based on the agreed hourly rate or project milestones, minus any administrative fees.

2.11 Termination
The provision of products or services may be terminated under the following conditions:

Notice of Termination: Either party may terminate by providing written notice at least 30 days before the desired termination date.
Material Breach: The Designer may terminate with 24 hours' written notice if the other party breaches the agreement materially, such as failing to make payments or provide required materials. The breaching party has 3 days to remedy the issue after receiving notice.
Mutual Consent: Termination can occur at any time by mutual written consent of both parties.
Discrimination: Immediate termination may occur for discrimination, protecting against harmful actions or opinions detrimental to individuals, communities, or business interests, aligning with principles of diversity and inclusion.

2.12 Financial Settlement Upon Termination
Upon termination, the Designer is entitled to payment for services and expenses incurred. A final invoice will be issued within three (3) business days, with payment due within thirty (30) days. Late fees or interest may apply to overdue amounts. Payments should be made via the methods specified on the invoice. Customers are responsible for any applicable fees related to goods and services in their countries.

2.13 Refund of Excess Payments
If the Client's payment exceeds the total value of services and expenses up to termination, The Designer is obligated to promptly refund the excess amount to the Client within thirty [30] days. This refund constitutes full settlement of all claims of the Client against The Designer.

2.14 Post-Termination Responsibilities
Upon termination, each party agrees to return any materials, data, or property belonging to the other party. All confidentiality and non-disclosure obligations outlined in this agreement will continue to apply after termination.

3. Collaboration and Responsibilities

Both the Designer and the Client are committed to fostering effective collaboration to achieve the project's objectives. The following outlines the responsibilities of each party in ensuring successful project outcomes:

3.1 The Designer's Responsibilities
The Designer agrees to:

Provide High-Quality Services: Deliver design services that meet project requirements.
Collaborate with the Client: Work closely with the Client’s team to understand project goals and deliverables.
Maintain Transparent Communication: Address questions and concerns promptly.
Follow Client Rules: Adhere to the Client’s regulations and security requirements to protect information and property.

3.2 Client's Responsibilities
The Client agrees to:

Provide Timely Information: Supply necessary information, materials, and resources promptly.
Designate a Contact Person: Assign a contact person to facilitate communication and decision-making.
Respect Designer’s Expertise: Value the Designer’s recommendations while providing constructive feedback.
Adhere to Timelines: Stick to agreed-upon timelines and milestones to keep the project on track.

3.3 Non-Compliance and Dispute Resolution
For issues with collaboration or responsibilities:

Address Concerns: Raise concerns through written communication. Both parties agree to resolve issues in good faith.
Termination of Agreement: Persistent non-compliance may lead to termination as outlined in the termination clause, with written notice provided.
Settlement of Services: Upon termination, settle goods or services provided up to the termination date per the termination clause.
Mutual Agreement: Changes to project scope or deliverables require mutual written agreement.
Dispute Resolution: Resolve disputes through mediation or arbitration before considering termination.
Performance Metrics: Establish joint performance metrics or benchmarks to assess project progress and alignment with objectives.

3.4 Revisions
The Designer offers up to two (2) revisions for each project as part of the standard service. If a major revision is requested that falls outside the initial project scope, additional fees will apply at the standard hourly rate of $60 + tax, payable upfront. The Client will be informed of any additional costs and must provide approval before any major work begins.

4. Proprietary Information

4.1 Definition
Proprietary Information refers to confidential details about the Client's business operations, relationships, or financial matters that are shared with or obtained by the Designer during the engagement.

4.2 Exceptions
This obligation does not apply to information that becomes public through no fault of the Designer, is disclosed by the Client without restrictions, or is approved for release by a Client officer.

4.3 Ownership Rights
The Client retains ownership of the content they provide. The Designer retains ownership of files, templates, and other materials created during the project, unless agreed otherwise in writing. The Client has a full license to use the final deliverables but does not own the underlying files. Upon termination, any files provided by the Client will be returned or erased unless agreed otherwise.

5. Inventions

5.1 Ownership of Client Content
The Client retains ownership rights to any content they provide for the project and the final deliverables created by the Designer that they pay for. This includes all content, data, and other materials provided by the Client to the Designer for the purpose of completing the project.

5.2 Ownership of Designer's Inventions
The files, templates, processes, methods, and other materials created by the Designer during the course of the project remain the exclusive property of the Designer unless otherwise agreed upon in writing. This includes any inventions, designs, or creations developed by the Designer that are not specifically commissioned by the Client.

5.3 Assignment
Upon request and at the Client's expense, the Designer will sign any necessary documents to confirm the Client's ownership of the final deliverables. The Designer also waives moral rights to these final deliverables, ensuring that the Client has full and unrestricted use of the deliverables for their intended purpose without needing to attribute the work to the Designer or seek approval for modifications.

5.4 Retained Ownership
The Designer retains ownership rights to all preliminary sketches, drafts, templates, and other intermediate materials produced during the project. The Client is only granted rights to the final deliverables unless otherwise agreed upon in writing. The Client's rights are limited to the use of these final deliverables.

5.5 Use of Work Product
Once delivered, the Client owns the final work product and is granted full license to use it as intended. However, the Designer retains the right to display all aspects of their work, including but not limited to any sketches, work-in-progress material, and final deliverable content, so long as it is for showcasing the work and not for any other purpose. This permission cannot be revoked even after the termination of the contract.

5.6 Use of AI Tools
To enhance design services, the Designer may leverage Artificial Intelligence (AI) tools and technologies. These tools support various design processes, such as generating concepts and refining visual elements. The Designer assures that AI tool usage maintains the originality and quality of final deliverables. The Client acknowledges and consents to the integration of AI tools in the design process.

6. Liability and Indemnification

6.1 Liability
Neither party shall be liable to the other for consequential, special, incidental, indirect, or punitive damages of any kind, including but not limited to loss of use, profit, revenue, or product. This limitation of liability applies to any claims arising under this contract or in connection with the services provided. Each party’s liability, including for negligence (excluding gross negligence), breach of warranty, breach of contract, or any other theory of liability, shall be limited to the fullest extent permitted by law.

6.2 Indemnification
The Designer shall not be liable for any claims, suits, judgments, or causes of action initiated by any third party against the Client that arise from or relate to the services provided by the Designer or its employees under this Agreement. The Designer will not be liable for any loss or damage resulting from misrepresentation or failure to fulfil its responsibilities under this Agreement. Each party will bear its own legal fees, costs, and expenses incurred in connection with any indemnified claim.

7. Independent Contractor Status

7.1 Nature of Relationship
The parties acknowledge and agree that the Designer operates as an independent contractor, meaning they are self-employed and maintain control over how they perform their work. This Agreement does not establish an employer-employee relationship, partnership, joint venture, or agency between the parties.

7.2 Responsibilities and Autonomy
The Client will specify the desired outcome but will not control the Designer’s methods, techniques, or processes. The Designer retains full autonomy in achieving the specified results.

7.3 Confidentiality
Both parties agree to maintain the confidentiality of any proprietary or sensitive information shared during the course of the engagement. This includes, but is not limited to, trade secrets, business plans, financial information, and any other confidential information exchanged between the parties.

7.4 Non-Exclusivity
This Agreement does not preclude the Designer from engaging in similar work for other clients or businesses. The Designer is free to pursue other opportunities and clients concurrently with their work under this Agreement.

7.6 Right to Disconnect
We understand the importance of maintaining a healthy work-life balance. Therefore, we reserve the right to disconnect from work-related communications and tasks outside of our designated working hours. Any such requests initiated by the Client during these times will be addressed promptly during our next business hours, ensuring that we maintain the quality of service while prioritising our well-being.
Please note that the out-of-office rates and urgent work premium will be applied cumulatively. By engaging in services with us, the Client acknowledges and accepts our designated working hours, out-of-office rate schedule, and right-to-disconnect policy as outlined above.

8. General Terms and Conditions

8.1 Survival
Provisions essential to protecting rights and interests, including indemnification, limitation of liability, and confidentiality, will remain in effect after the Agreement's termination or expiration.

8.2 Non-Solicitation Disclaimer
This Agreement does not include a non-solicitation clause. The Designer is free to establish business relationships with the Client’s employees, contractors, or clients. The Client waives any claims for damages related to the Designer's engagement with these individuals or entities.

8.3 Subcontractor Engagement
Engagement of Subcontractors the Designer reserves the right to engage trusted subcontractors to fulfil their obligations under this Agreement, exercising discretion without prior written approval from the Client. The Client acknowledges the Designer's authority to select subcontractors based on their expertise and qualifications.

8.4 Entire Agreement
By engaging with our services and making payment, you agree to these terms and conditions. This Agreement, including all referenced documents, constitutes the entire agreement between you and us, overriding any previous agreements or representations, whether written or verbal. Your use of our services confirms your acceptance of these terms in full.

8.5 Consumer Guarantees and Refund Policy
Our terms comply with Australian Consumer Law. For digital and physical goods, we adhere to the following guarantees:

Acceptable Quality: Goods must be free from defects, safe, and durable.
Fit for Purpose: Goods must be suitable for their intended use.
As Described: Goods must match their description.

Remedies for Non-Compliance:

Major Problems: Consumers may choose a repair, replacement, or refund for significant issues such as unfit for purpose or not functioning as described.
Minor Problems: The seller can repair or replace minor issues. A refund may be given if repair or replacement is not feasible.
No Cooling-Off Period: Digital goods have no statutory cooling-off period once accessed or downloaded. However, remedies are still required if goods do not meet guarantees.

Refunds will not be provided in the following cases:

Change of Mind: If the client decides not to proceed after work has begun.
Additional Revisions: Costs for revisions beyond the agreed scope are non-refundable.
Completed Work: No refunds once the final product is delivered and approved.
Client-Caused Delays: Delays due to the client's failure to provide necessary materials or feedback.

8.5 Consumer Contracts Disclaimer
Our terms and conditions comply with Australian Consumer Law and are considered 'standard form' contracts, meaning they are set by us and non-negotiable. By paying for our goods or services, you agree to these terms on a 'take it or leave it' basis, as required by law.

8.6 Assignment
Neither party shall have the right to assign or transfer this Agreement, in whole or in part, or any of its rights or obligations herein, without the prior written consent of the other party. Any attempted assignment or transfer without such consent shall be null and void.

8.7 Notices
All notices required or permitted under this Agreement shall be in writing and deemed effective upon sending an email to support@jessicakay.com.au, or to such other contact information as either party may designate to the other in writing.

8.8 Amendments
Amendments to this Agreement shall only be effective if they are made in writing and signed by both parties.

8.9 Severability
If any provision of this Agreement is deemed invalid or unenforceable, the remaining provisions will still apply. The court may modify or replace the invalid provision to align with the original intent of the Agreement.

8.10 Force Majeure
Neither party is liable for delays or failures in performance due to circumstances beyond their control, such as acts of war, natural disasters, or government actions. The affected party must notify the other party promptly and make reasonable efforts to mitigate the impact.

8.11 Governing Law
This Agreement shall be governed by the laws of New South Wales, Australia, excluding any principles of conflict of laws.

8.12 Arbitration
Disputes under this Agreement will be resolved by arbitration, excluding intellectual property issues. If no arbitrator is appointed within thirty (30) days, one with expertise in corporate finance will be selected. Arbitration will take place in New South Wales, Australia, following the Commercial Arbitration Act 2010 and relevant rules. If arbitration fails, either party may seek other legal remedies under New South Wales law. The Client will indemnify the Designer for claims and cover related legal fees.

8.13 Counterpart
This Agreement may be signed in multiple copies, each considered an original. The parties may sign and exchange these copies electronically, including via email or digital signatures. All signed copies together will form a single agreement.