Terms and Conditions of Engagement
Last Updated: February 26, 2022
Quince Portrait (ABN 89 237 428 413) agrees to provide the Customer with its products and services on the following Terms, which together with any information included by reference in these Terms, forms a binding, entire agreement (Agreement), unless otherwise agreed in writing.
If under this Agreement, a Customer places an Order for a Portrait for the benefit of a third party (whether as a gift to that party or otherwise), this Agreement binds the person placing the Order, and, by virtue of that person acting as agent, the person who is to receive the benefit of it and the person placing the Order as agent agrees to ensure the person receiving it agrees to these Terms.
Products and Portrait
- You (Customer) have provided Quince with an order, request or instructions to provide certain products or services, as set out on Quince’s website or other marketing material (a Portrait) including the nature and extent of the Portrait, applicable fees or charges, separate options or components, milestones, delivery, feedback or sign-off dates, and content required from the Customer necessary to complete the Portrait, or which may be provided or notified, or updated or modified by Quince by Quince as part of providing the Portrait (an Order). An Order is valid for 12 months, after which it can be cancelled, changed, renewed or replaced.
Acceptance of Order
- Placement of the Order by the Customer must occur on Quince’s website, and a Portrait will not commence until the Order has been accepted by Quince and any applicable fees paid, however instructing, inducing or permitting Quince to commence a Portrait will be deemed sufficient, and a Portrait will proceed in accordance with this Agreement, which will be legally binding on Customer and be for all options or components, unless certain options or components only are accepted by Quince. The nature and scope of a Portrait or Order may only be varied with Quince’s prior consent in writing, or as is expressly permitted hereunder.
- If the Customer requests any changes outside of the Order or does not comply with milestones, feedback or sign-offs or required content in the Order, extra costs may be applicable at usual rates, as determined by Quince acting reasonably, who reserves the right to provide Customer a revised Order dealing with completion of Portrait outside that scope.
- In consideration of the Portrait, Customer shall pay Quince fees in accordance with the Order. Quince may require all or part of fees in an Order to be paid on acceptance of the Order. Payment of any invoiced fees and expenses is required within 30 days of invoice and default interest may be charged on overdue sums at 1.5% above the official cash rate of Quince’s bank. Customer acknowledges Quince has the right to require full payment of any fees prior to commencement of any work or final delivery of any materials created or Portrait. If Customer wishes to query an invoice it must do so in writing within 14 days of receipt of it.
- If any cost or expense will or may be incurred by Quince in providing Portrait, either as needed in Quince’s discretion or if Customer requests Quince to incur them, these may be on-charged to the Customer, and Quince may specify them in the Order or issue Customer a separate notification (also an Order under Clause 4) and payment terms will be under Clause 4, or payable directly by Customer to any third party if requested by Quince. It is agreed that all outside or third party costs or expenses are incurred by Quince as agent on Customer’s behalf. If any cost or expense to be incurred increases after issue of an Order, the increases apply to the Order and Quince will endeavour to promptly update Customer.
- Portraits or work in progress will not be completed or delivered if fees or expenses are unpaid but Quince may elect to continue any work without affecting its rights to payment hereunder.
- All fees and charges in an Order are exclusive of GST, which is payable by the Customer under GST law. Quince will if required give the Customer a tax invoice for fees or expenses.
- On delivery of any part or component of the Portrait and full payment of all fees or expenses payable for it, Quince grants Customer a licence only to use the final completed Portrait as delivered to Customer, subject to any limits on use, term, territory or otherwise in the Order, this Agreement or any further licensing agreement issued by Quince, or as may be otherwise agreed in writing (Licence). Any term in a Licence referring to a licensee, third party, use, term, territory or otherwise, will be a reference to those as described in the Order, or otherwise agreed in writing. The Customer is not entitled to and undertakes not to make any use of Portrait until the licence for it under this Clause starts, unless agreed in writing by Quince. In any event, the Customer must provide or perform all things set out in the licence under this clause, including credits to Quince. Customer may not use, alter or make any adaptation of a Portrait except to the extent expressly set out in the Licence or with Quince’s prior written consent. To avoid doubt, the Customer may not modify, disassemble, decompile or reverse engineer any components of a Portrait, except as approved in writing by Quince. Customer may only sub-licence, assign or transfer a Portrait as expressly permitted by a Licence, and undertakes to provide to any sub-licensee, assignee or transferee a copy of the Licence, and provide confirmation to Quince of their receipt of it, and will do all things necessary to ensure that party fully complies with a Licence. Customer must give Quince first option to complete further work required on a Portrait before Customer undertakes it.
- Unless otherwise agreed in writing, Quince retains ownership of all the right, title and interest (including copyright) in a Portrait and materials created or undertaken to produce the Portrait, and all underlying ideas, concepts, methods or techniques, and any rights Quince may have in or to use third party proprietary work or materials in providing a Portrait. Customer agrees not to deal directly with any of Quince’s third party suppliers of goods or services relating to the Portrait, it being agreed this is a reasonable commercial limitation in Quince’s interests.
- Where the Portrait does not proceed beyond an initial Order, the Customer is not assigned or licensed any rights over any works and is not entitled to make any use of any such works.
- All information or materials to be provided by the Customer must be provided as set out in an Order, unless another date is agreed in writing by Quince, who may withhold the provision of any part of a Portrait until this material is properly and fully provided. If any failure to provide materials results in additional work for Quince, the Order is deemed revised accordingly and may give rise to additional fees in Quince’s reasonable discretion in Clause 3.
- Customer warrants that any and all materials, items or information it supplies to Quince are true and accurate, fully and properly cleared for use in the Portrait and any licence under Clause 8, and does not infringe the intellectual property or any other rights of any party, or which may reasonably be considered offensive, defamatory or discriminatory to any person. Without limiting this Agreement, the Customer indemnifies Quince for any losses, damage, claim, cost or expense (including reasonable legal fees) incurred in any way (including negligence of any party) as a result of any breach of this warranty. To avoid doubt, Customer will ensure any third party material provided is fully and properly owned, licensed or cleared for its use or inclusion in the Portrait and any intended use of the Portrait by the Customer. Quince may exclude any material Quince considers may not comply with this Clause, without any liability to Customer and Customer releases Quince from all and any liability under this Clause. Quince is not responsible for any loss of or damage to (or caused by) any materials so provided by the Customer to Quince. For clarity, Customer is solely responsible and liable for ensuring all content or other material provided by the Customer can be legally used and included in the Portrait by Quince, and that use and inclusion can be licensed back to the Customer and any sub-licensee under Clause 8, and further, the Customer will cover any loss Quince suffers if this is not the case, or Quince may refuse to use or include that material and is not liable to the Customer, or to any third party for that. It is also agreed that Quince may refuse to complete a Portrait or Order (in whole or part) if it considers this Clause is likely to be breached, and it will refund the Customer the fees paid.
- Quince will use reasonable endeavours to deliver the Portrait to the Customer in accordance with an Order, subject to any delay or extension resulting from failure of the Customer to provide information (including any content or sign-off in accordance with the Order) or any additional work required as a result, or any event, circumstance or thing beyond Quince’s reasonable control (including without limit any illness, pandemic or public health restrictions).
- Upon delivery of a Portrait, the Customer has 30 calendar days or any other period set out in an Order (or otherwise agreed in writing by Quince) to provide to Quince with any revisions required to the Portrait that are permitted within the Order, or notice of any defects in it, otherwise it will be deemed accepted, unless otherwise agreed. Revisions must be reasonable, within the parameters of and subject to the Order and this Agreement and cannot involve the addition of any new material (for clarity, being removal or re-ordering of material only as set out in an Order). Any other required timeframes in an Order or that are notified to Customer will be binding on the Customer unless otherwise agreed. Quince is not responsible for maintaining copies of a Portrait or any materials after delivery to Customer under this clause.
- The Customer acknowledges Quince may use cloud technology for the purposes of storing materials and delivering the Portrait to the Customer and Customer is solely responsible for ensuring sufficient internet access or other requirements in order to access it, and Customer will be solely responsible for maintaining and securing all passwords or logins required to do so. Quince will store Portraits until 24 months after the delivery of Portrait or as set out in an Order, after which time it is the Customer's sole responsibility to store a Portrait or other files or materials, which may then be removed from Quince's storage without notice. Quince can retain any Portrait, files or materials for longer periods if agreed in writing, or attempt to retrieve any Portrait, files or materials required after that period at the Customer’s cost.
Limitation of liability
- Without limiting anything else in this Agreement, the Customer acknowledges and agrees Quince provides the Portrait at the request of and pursuant to information provided by the Customer and, notwithstanding any act or omission by Quince, including negligence, Customer accepts all risk in relation to Portrait and releases and forever discharges Quince from all and any loss, damage or liability (including indirect, special or consequential losses) arising in any way in relation thereto, including any claim by a third party arising out of or relating to Portrait, or from any delay in completion of the Portrait, for any reason. The Customer will indemnify and hold harmless Quince from and against all such loss, damage or liability, except to the extent any legislation applies and cannot be excluded. This clause applies from making of an Order, is a continuing separate obligation and survives termination. To avoid doubt, this limitation and indemnity applies to the Portrait and its use by Customer, as well as to the Customer providing information or participating in the making of the Portrait.
- To the full extent permitted by law, Quince makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Portrait. To avoid doubt, the Customer is solely responsible for the quality of any information provided by it over any electronic services (including without limit online video conferencing or audio messaging).
- To the full extent permitted by law, Quince‘s liability for any claim or action is limited to replacement of goods, the re-supply of equivalent goods or services, or payment of the cost of so replacing or re-supplying goods, or payment of the cost of re-supplying those services.
- Upon provision or acceptance of the Order, a party may receive or develop any confidential information relating to the other, including ideas, concepts, methods, techniques or other elements of an Order (Confidential Information). A party will use Confidential Information only for the purpose of fulfilling its obligations hereunder and it will not be disclosed to third parties, except with the other’s express written consent, required by law or to legal advisors. Customer will also not use Confidential Information if it does not wish to proceed with all or part of an Order and will, if requested, execute any reasonable separate confidentiality terms. Unless requested in writing by Customer, a Customer’s name is not Confidential Information.
Credit and Promotional Use
- Customer will credit, acknowledge or attribute Quince (or its personnel, as Quince advises) as creators of the Portrait if Quince requests. Quince may place a credit on or in a Portrait, which Customer agrees to not remove and to use its best endeavours to retain in tact.
- Quince may name or refer to the Customer to promote Quince’s business, and with the Customer’s prior written consent, use any part or samples of a Portrait for Quince’s marketing or promotional purposes (including on social media) and generate related publicity.
- Customer may terminate an Order at any time on written notice to Quince within any timeframes set out in an Order. Quince may terminate the Portrait or this Agreement at any time by written notice to the Customer including but not limited to if the Customer breaches this Agreement, or if Quince’s ability to perform a service is adversely affected by any actions of the Customer, or any cause beyond Quince’s control, including any under Clause 13.
- On termination, Customer must pay Quince all sums owing for work undertaken or expenses incurred under this Agreement up to termination (including any deposit that is non-refundable) in accordance with this Agreement and Clauses 4 - 7, 9, 12 and 13 - 21 continue to apply. If Customer withdraws from or does not proceed with any part or component of an Order commenced by Quince, Customer must pay the full fee or expenses, and any non-continuation fee in the Order, for a stage or component already commenced.
- Without limiting Clause 23, in the event Quince terminates an Order, Portrait or this Agreement due to Customer acts or omissions, including negligence, Quince is entitled at its election to retain any payment made by Customer on acceptance of an Order under Clause 4.
- Quince is a contractor, not an employee, partner or agent of Customer.
- If either party fails to do anything it is entitled to under this Agreement that does not amount to a waiver of that right. Any waiver or variation must be in writing. If any clause or part of a clause is illegal or unenforceable, it is to be treated as removed, but the rest of this document is not affected. Any references to a party include their agents, officers, employees or assigns.
- If any clause or part of a clause hereof is illegal or unenforceable, that clause or part is to be treated as removed here-from, but the rest of this Agreement is not affected.
- The Agreement is governed by the laws and jurisdiction of the courts of Western Australia and is, along with the Order and Order and any agreements entered into or made under the terms of this Agreement, the entire agreement between the parties.