Last updated 21 February 2025

Thank you for choosing to work with us, Cultivate Studio Agency Pty Ltd (ACN 681 299 874) (us, we or our). These Terms of Use, together with any Proposal we may issue you from time to time, apply to the work we do for you (together, the agreement). A Proposal remains valid for 30 days from date of issue. You may accept a Proposal by signing and returning it to us, or by requesting us to commence work.

To the extent of any inconsistency between these Terms of Use and any Proposal, the Proposal takes precedence over these Terms of Use.

1. Services

1.1 We will perform the Services with due care, competence and diligence.

1.2 Unless specified otherwise in the Proposal, we will provide a single round of edits / updates to any content produced. Any revisions thereafter will be charged according to our agreed rates as set out in the Proposal (if no rates are set out, then our then current rates as notified to you by us).

1.3 We will use reasonable commercial efforts to complete the Services within any estimated time frame, however you acknowledge that timeframes specified in the Proposal are estimates only and may depend on you providing us with information or completing required tasks as set out in clause 3.2 or as otherwise reasonably requested by us.

2. Variations

2.1 You may direct a change in our work plan, which we will effect at our agreed rates. Any change that requires significant consideration and/or the submission of an additional proposal, may result in additional fees.

3. Your obligations

3.1 You must comply with applicable laws, this agreement and our reasonable directions.

3.2 On our request, you must promptly provide us with (as reasonably requested by us):

a) decisions;
b) relevant information; and
c) resources to ensure timely approval, development and sign-off of all deliverables.

3.3 You acknowledge we are entitled to rely on the accuracy of that information without independently verifying it, whether the information is provided by you, your contact, or your advisers.

3.4 You represent and warrant that all material you provide to us (Client Content):

a) is accurate, complete and current;
b) does not infringe the Intellectual Property Rights or other rights of any person; and
c) is not unlawful, fraudulent or defamatory in itself or in respect of its intended use.

3.5 We will not be responsible for any deficiency or delays in the performance of the Services to the extent that it is attributable to your delay or breach of this agreement.

4. Fees

4.1 We will invoice you the fees set out in the Proposal and all reasonable out of pocket pre-approved expenses (for example, third party scheduling tools, external printers etc.) in accordance with the payment terms set out in the Proposal. If no terms are set out, we will invoice you:

a) for ongoing marketing support you will be invoiced monthly; and
b) for project work, we will invoice you the full fee in advance.

4.2 You must pay the fees within 14 days of the date of the invoice and pay directly into our nominated bank account.

4.3 You acknowledge and agree:

a) if we provide you with an estimate:
i) the fees are mere estimates of the likely fees and charges applicable to the Services; and
ii) notwithstanding the fees quoted for Services, you must pay the actual fees applying our then current time and materials rates;
b) any approved variation to the Services may result in an increase in the fees payable by you.

4.4 If you wish to raise a genuine dispute about an invoice, you must notify us of the dispute before the due date and pay the undisputed portion by the due date.

4.5 If you fail to pay an undisputed invoice by the due date, we reserve the right to charge interest on overdue amounts at the rate of 10% per annum and/or suspend the Services until all overdue amounts are paid.

4.6 All amounts payable under this agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST.

5. Delays

5.1 If there is a delay arising from your untimely performance of any of your obligations under this agreement:

a) we will not be liable for any failure or delay in performing the Services; and
b) you must pay additional fees for the increase in time and effort in performing the Services.

6. Intellectual Property Rights

6.1 The ownership of the Intellectual Property Rights in any pre-existing materials as at the Commencement Date (Pre-existing IP) will not be altered, transferred or assigned.

6.2 You grant to us a non-exclusive and royalty-free licence to use and reproduce the Client Content for the purpose of performing our obligations under this agreement.

6.3 We grant to you a non-exclusive, non-transferable licence to use and reproduce our Pre-Existing IP to the extent that it forms part of, or is integral to, the Contract Materials.

6.4 Upon receipt of payment in full, we agree to assign the new Intellectual Property Rights in the Contract Materials to you.

6.5 You acknowledge and agree:

a) you must supply images at hi-res 300DPI for print purposes. If they are solely to be used online then lower resolution images are acceptable;
b) you must own or have the appropriate licence to any images you provide us for incorporation in the Contract Materials. Images cannot be taken directly from Google; and
c) you must have obtained appropriate consent from any person featured in the Client Content provided to us for incorporation into the Contract Materials.

6.6 You consent to us:

a) naming you as a client and reproducing your business name and logos for marketing and publicity purposes; and
b) using the deliverables for internal training and our marketing and publicity purposes, provided such material does not contain any commercially sensitive information or Confidential Information.

7. Warranties

7.1 Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:

a) it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
b) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.

8. Exclusion of liability

8.1 You indemnify us against any loss or expense arising out of or in connection with:

a) representations, assertions or claims made by us regarding your products or services, or the products or services of a competitor if the assertions are based on Client Content;
b) any claim by a third party that our use of the Client Content infringes the Intellectual Property Rights of any third party; or
c) any act or thing done on your instructions.

8.2 Notwithstanding any other provision of this agreement and to the fullest extent permitted by law:

a) our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the fees paid by you to us in the last 6 months under this agreement; and
b) we are not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption).

8.3 Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we expressly exclude all warranties, conditions and representations in whatever form, relating to the Services, including any warranties or representations relating to performance, quality or fitness for use.

9. Privacy and Confidential Information

9.1 You must comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that you use or disclose.

9.2 Each party must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.

9.3 Neither party may use or disclose the Confidential Information except:

a) to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;
b) as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
c) with the other party’s prior written consent.

10. Term and termination

10.1 This agreement will start on the Commencement Date and continue for the Term, unless terminated earlier.

10.2 Either party may terminate this agreement for any reason on 30 days’ notice.

10.3 Either party may terminate this agreement on notice if the other party:

a) fails to remedy a breach within 21 days’ notice from the other party requesting the breach be remedied;
b) breaches this agreement and that breach is not capable of remedy; or
c) becomes insolvent or enters into liquidation.

10.4 Upon the expiry or termination of this agreement:

a) each party must, on request, return or securely destroy all Confidential Information in that party’s control; and
b) you must pay all outstanding fees to us within 14 days.

10.5 If this agreement is terminated by you in accordance with clause 10.1 (for convenience) or us in accordance with clause 10.3 (for your breach) you must also pay us:

a) all reasonable costs incurred by us as a result of the termination (including third party cancellation fees and administrative costs); and
b) all fees that would otherwise have been payable to us for the full length of the term of the agreement.

11. Force Majeure

11.1 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.

11.2 If a Force Majeure Event continues for more than 60 days, either party may terminate this agreement.

12. General

12.1 A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address.

12.2 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.

12.3 We may subcontract the performance of any part of the Services to any third party.

12.4 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

12.5 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

12.6 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

12.7 This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.

12.8 This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

12.9 Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.

12.10 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.

13. Definitions and interpretation

13.1 In this agreement, unless the context otherwise requires:

Client Content means all content provided by you to us, including words, images, logos, information, documents and materials.

Commencement Date means the date this agreement is signed by both parties.

Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

a) is identified as confidential or ought to have been known to be confidential; and
b) relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,

but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

Contract Materials means the deliverables, documentation, items or things created or acquired by us or on our behalf in connection with this agreement, as more fully described in the Proposal.

Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, pandemics or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

c) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
d) is beyond the reasonable control of that party.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

Losses means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

Proposal means the proposal issued to you which includes at a minimum a description of the Services, dates for performance, assumptions, fees and payment terms.

Services means the services we provide you as set out in the Proposal and, if applicable, an approved variation order.

Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Term means the term of the agreement set out in the Proposal.

13.2 In this document unless the context otherwise requires:

a) clause and subclause headings are for reference purposes only;
b) the singular includes the plural and vice versa;
c) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
d) references to statutes include all statutes amending, consolidating or replacing such statutes;
e) $ means the lawful currency of Australia;
f) any reference to a party to this document includes its successors and permitted assigns; and
g) the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it.