Terms of Service

Services Terms

1. Appointment and acceptance

1.1 You or the organisation or other legal entity that you represent (in each case, referred to as you and your) appoint Making Jam Studio Pty Limited ACN 627 072 048
trading as makersCo (referred to as we, our and us) to provide you with the Services and we accept this appointment.  

1.2 You may accept these terms by: (a) advising us of your acceptance by approving our Proposal (whether verbally, online or in writing); or (b) commencing or
continuing to provide us with instructions on an engagement after receipt of this document.

2. Services

2.1 We will provide the Services in accordance with all applicable laws.  

2.2 We will use our reasonable endeavours to perform our obligations under this Agreement within the timeframes agreed in writing between us and you from time
to time. However, subject to any Consumer Rights, we are not liable to you for any damage, expense, loss or liability suffered or incurred by you resulting from any
delays in the performance of our obligations under this Agreement or our failure to meet these timeframes. 

2.3 We may sub-contract the performance of any work under this Agreement, but this doesn’t affect our obligations to you.

3. Fees

3.1 Unless otherwise expressly stated, all Fees, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

3.2 You will pay us the Fees (plus GST), which we will invoice as specified in our Proposal or otherwise at convenient intervals. You agree that any Services falling
outside the scope of work specified in our Proposal will be invoiced at our current hourly rates (plus GST). If you pay a deposit for an engagement, then this is
non-refundable (even if you choose not to proceed with the engagement). If you cancel an engagement before completion, then you will pay us the proportion of
Fees for the engagement equal to the proportion of work that we have performed up to the time of cancellation.

3.3 You will pay our invoices by electronic fund transfer directly into our nominated bank account. Unless we agree otherwise (for example, where we require full
payment in advance), all invoices are payable within 14 days of the invoice date. Any amounts remaining unpaid by you after 30 days of the invoice date are subject
to interest at the then current commercial overdraft rate charged by our bank. In the event that you do not pay our invoice within 45 days of the invoice date, we
may suspend the provision of, and your access to, the Services.

3.4 You may not recover from us any amounts due under this Agreement or any other agreement by way of set-off.

4. IP

4.1 We hereby assign to you all right, title and interest (including IP) in the Contract Material.

4.2 We will obtain for you the right to access and use the Third Party Material & Services (such as website hosting Services) and related IP. You acknowledge that any
rights to Third Party Material & Services will be subject to the relevant third party’s terms. 

4.3 If we provide you with Stock Material, you: (a) may only use them in the Deliverables into which they are incorporated by us; and (b) will not copy or use them for
any other purpose.

4.4 You retain all right, title and interest (including IP) in the Client Material. You consent to us disclosing the Client Material to our third party contractors (such as our
website hosting service providers) so that we can provide you with the Services under this Agreement. You warrant that: (a) you have the right to provide us the
Client Material; (b) it does not infringe the IP of any person; and (c) it may be lawfully used by us and our third party contractors for the purpose of providing you the Services.  

5. Confidential Information

A party receiving Confidential Information will ensure that it is: (a) maintained confidential; and (b) only used and reproduced to the extent necessary for the pur
pose of this Agreement.

6. Exclusion and limitations

6.1 If you are a Consumer:

(a) you are entitled to certain Consumer Rights that cannot be excluded;

(b) subject to clause 6.1(c), our liability for loss suffered or incurred by you is limited to us:

(i) in respect of goods supplied under this Agreement: (A) replacing the goods or supplying equivalent goods; (B) repairing the goods; (C) paying the cost of replacing
the goods or of acquiring equivalent goods; or (D) paying the cost of having the goods repaired; and

(ii) in respect of services supplied under this Agreement: (A) resupplying the services; or (B) paying the cost of having the services supplied again,and 

(c) clause 6.1(b) does not apply: (i) where it is not fair or reasonable for us to rely on that clause; or (ii) in relation to rights granted under sections 51, 52 and 53 of the
Australian Consumer Law. 

6.2 Subject to any Consumer Rights and to the extent permitted by law:

(a) you agree that all terms, conditions, warranties, guarantees, representations and obligations in relation to our supply to you of goods and services which are
implied or granted by statute or general law are excluded;

(b) in particular, you acknowledge and agree that; (i) software and website Deliverables may contain defects, faults, errors and bugs and in any event require ongoing
maintenance and support; and (ii) unless expressly stated in our Proposal, we have no liability or obligations to you in relation to these matters unless you enter
into an ongoing maintenance or support agreement with us covering the relevant software or website;

(c) our total liability to you for all events and occurrences in respect of this Agreement, whether in contract, tort including negligence, under statute or otherwise, is
limited to the total of all Fees paid by you under this Agreement during the month prior to the date on which the relevant event arises; 

(d) we are not liable to you in any circumstances for any indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated
savings, opportunity, reputational loss, loss of production and loss of profit in respect of this Agreement or the supply of any goods and/or services;

(e) our liability in respect of this Agreement is reduced to the extent that the relevant loss or damage: (i) was caused or contributed to by you; or (ii) arises from inaccu
rate data or information provided by you; 

(f) we have no liability to you in relation to damage, expense, loss or liability suffered or incurred by you to the extent caused by defects, faults or errors in the Third
Party Material & Services; and

(g) you will not make any claim against us unless you give us full details of the claim within 3 months of you first becoming aware of the events or circumstances
giving rise to the claim.

7. General

7.1 Subject to any Consumer Rights, this Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations
and agreements in connection with that subject matter and overrides the terms of any purchase order that you send us.  

7.2 This Agreement may only be amended in writing signed by both parties. 

7.3 This Agreement prevails over any and all terms imposed or sought to be imposed by you in relation to the supply of Services by us to you (including any terms
imposed in your purchase order). 

7.4 Our obligations under this Agreement are suspended during any period in which we are prevented from performing them by any cause beyond our reasonable
control (including due to defects, faults or errors in the Third Party Material & Services). 

7.5 You agree to us: (a) referring to our relationship with you for marketing, publicity and reference purposes; and (b) displaying your logo and samples of Deliverables
in our design portfolio and on our website.

7.6 You will not assign or novate any of your rights or obligations under this Agreement without our prior written consent (which we may withhold in our absolute
discretion).  We may assign or novate any of our rights or obligations under this Agreement to any person by notice to you. 

7.7 If you represent an organisation or other legal entity, you warrant that you have the authority to bind that organisation or entity. 

7.8 Each term of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  If any term of this Agreement is held to be
prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

7.9 This Agreement is governed by the laws applicable in the State of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.

8. Definitions and interpretation 

Agreement: the agreement between us and you, comprising these terms and our Proposal (and unless otherwise expressly specified in the Proposal, to the extent of any incon
sistency, these terms prevail over the terms of the Proposal). 

Australian Consumer Law: the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Client Material: all Material provided by you to us for the purposes of this Agreement.

Confidential Information: all confidential information of a party, except where that information is: (a) made public other than by the receiving party breaching this Agreement;
(b) known to the receiving party free of any obligation to keep it confidential; (c) independently developed by the receiving party without use, directly or indirectly of Confidential
Information received from the disclosing party; or (d) required to be disclosed by law. 

Consumer: consumer as that term is defined in the Australian Consumer Law. 

Consumer Rights: your rights if you are a Consumer contained in the Australian Consumer Law. 

Contract Material: all Material provided, created or developed by us or on our behalf for you under this Agreement, but does not include the Third Party Material & Services or
the Client Material.

Deliverables: the specific tasks that we will complete or Material that we will provide to you under this Agreement as referred to or specified in our Proposal.

Fees: the fees specified in our Proposal or otherwise agreed between us and you.

IP: (a) patents, trademarks, services marks, design rights (whether registered or unregistered and including any applications for these rights); (b) copyright (including future
copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future
subsist; (c) trade or business names; and (d) know-how, Confidential Information and trade secrets, and any other similar rights or obligations whether registrable or not in any country. 

Material: material in any form, including documents, reports, products, equipment, information, data, source code, software, software tools, and methodologies. 

Proposal: our proposal or quote in relation to Services. 

Services: include the Deliverables and means the services agreed between us and you from time to time, including those specified in our Proposals accepted by you from time to time.  

Stock Material: photos or templates which are Third Party Material & Services.
Third Party Material & Services: any Material and/or services in which neither you nor we own the IP and is: (a) incorporated in a Deliverable or the Services; or (b) necessary for
you to fully enjoy the benefits of a Deliverable or the Services.

Interpretation: (a) words importing the singular include the plural and vice versa; (b) words importing gender include any gender; (c)unless expressly stated other
wise, a reference to currency is a reference to Australian dollars; (d) an expression importing a natural person includes a company, partnership, joint venture, association,
corporation or other body corporate or any government agency; and (e) wherever “include” or any form of that word is used, it will be construed as if it were followed by “(without limitation)”.