Effective Date: 15 December 2020

These terms of engagement will be the terms and conditions under which all dealings between Construct Agency and you will be contracted and conducted. 

1. FEES AND CHARGES

1.1 Fees

In consideration of the services to be performed by Construct Agency, the Client shall pay to Construct Agency all agreed fees in the amounts and according to the payment schedules proposed.

1.2 Project Termination

In the event of the termination of a project by the Client, the Client acknowledges that Construct Agency 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 Construct Agency or its service providers 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. All concepts and work produced up to date of termination remain the property of Construct Agency.

Projects placed on hold for more than 30 days will automatically be billed for work completed and are subject to termination and a revised cost if kept on hold for more than 60 days.

2. PROJECTS

2.1 Variations

Unless otherwise provided, 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. Construct Agency reserves the right to extend or modify any delivery schedule or deadline as may be required by such changes.

2.2 Timing

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 Construct Agency. The Client acknowledges and agrees that ability of Construct Agency 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/or project. 

Any delays in the Client’s performance or changes in the services or deliverables requested by the Client may delay delivery of the deliverables.

2.3 Acceptance

The Client, within five (5) business days of receipt of any deliverable, shall notify Construct Agency, 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.

3. PRODUCTION

3.1 Production

All production, including printing and the arrangement or brokering of print services by Construct Agency, 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.

3.2 Delivery

Title to the goods passes to the Client when Construct Agency has received payment.  Terms of payment are set out on the order page. Construct Agency will attempt to send goods once completed and approved for printing or manufacturing via Courier/Postage within 5-7-working days; however if goods are unavailable, delivery will take a little longer.

3.3 Product Returns

Construct Agency undertakes to replace any product delivered to the Client that is faulty or is in a damaged condition. If Construct Agency is unable at the time of return to replace or exchange returned goods, Construct Agency undertakes to reimburse the Client credit card for the amount initially debited for the purchase.  

If the Client is entitled to a refund, Construct Agency will only give the refund once evidence of faulty product is received by Construct Agency and assessed whether it is eligible for a refund under these Terms. 

4. CLIENT RESPONSIBILITIES

4.1 General

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 Construct Agency; (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 (18) 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 Construct Agency, 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 Construct Agency shall be entitled to an agency commission to be the greater of, either (a) 30 percent of said person’s starting salary with the Client, or (b) 30 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. Construct Agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law.

5. PROMOTION

5.1 General

The Client agrees that Construct Agency 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.

5.2 Authorship

The Client agrees that Construct Agency 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 Construct Agency a non-exclusive, non-transferable licence to use, reproduce, modify, display and publish all client content solely in connection with the 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. Construct Agency 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 Construct Agency shall inform Client of any need to licence, at the Client’s expense, and unless otherwise provided for by the Client, Construct Agency 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 Construct Agency 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 Construct Agency retains all rights in and to all preliminary works. The Client shall return all preliminary works to Construct Agency within thirty (30) days of completion of the services and all rights in and to any preliminary works shall remain the exclusive property of Construct Agency.

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, Construct Agency hereby assigns to the Client all right and title in and to final art, excluding website source code for which Construct Agency hereby assigns a non-exclusive, non-transferable licence.

6.5 Trademarks

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 Construct Agency 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 PARTIES

7.1 Independent Contractor

The Client acknowledges that Construct Agency is an independent contractor, not an employee of the Client or any company affiliated with the Client. Construct Agency shall provide services under the general direction of the Client, but Construct Agency 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 Construct Agency and the Client. The Client is free to engage others to perform services of the same or similar nature to those provided by Construct Agency, and Construct Agency 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 Construct Agency 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 the control of Construct Agency (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 NSW.

8. DISCLAIMER

Construct Agency is not responsible for any damages of any kind arising out of use, reference to, or reliance on any information contained within the website. While the information contained within the website is periodically updated, no guarantee is given that the information provided in the website is correct, complete and up-to-date.

Even though Construct Agency may include links providing direct access to other internet resources, including other websites, Construct Agency is not responsible for the accuracy or content of information contained in these websites.

Links from this site to third-party websites do not constitute an endorsement by Construct Agency.