Terms of Use

Design Ninjas provides design and content creation services to brand conscious and client-focused people just like you.

This is the Agreement upon which Design Ninjas will carry out work for you. This Agreement will apply each time that you enter a membership plan with us. You are welcomed and encouraged to seek your own independent legal advice in relation to this Agreement.

Terms of service

THIS TERMS OF USE AGREEMENT (the “Agreement”) constitutes a legally binding agreement by and between Design Ninjas, an entity of By Ninja Pty Ltd, and the client, whether personally or on behalf of an entity (“Client”), with regard to access and use of Design Ninjas service: https://www.designninjas.au/ (the “Website”) and any other media form, channel, mobile website or mobile application related, linked or otherwise connected thereto. Failure to agree and adhere to all of the terms, conditions and obligations contained herein results in the express prohibition of the Client’s use of the Website, and the Client is ordered to discontinue use immediately. Thereafter the relationship between Client and Design Ninjas shall cease and be of no further force and effect between the parties, except that any obligation of Client to pay Design Ninjas for services rendered shall remain and continue to be an ongoing obligation owed by Client to Design Ninjas.

BASIS OF AGREEMENT

Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They do not form part of this Agreement or have any contractual force.

VARIATION OF AGREEMENT

While we typically do not amend these Terms during a Project – unless required by law or otherwise deemed necessary by us – we do reserve our right to review and change any of the terms of this Agreement (including pricing).

TERM OF AGREEMENT

We will start the Services on the first business day following receipt of payment.

We will provide you the Services for the period of, or within the Term, or where no Term is specified, for an ongoing month-to-month period, unless this Agreement is terminated in accordance with this Agreement.

YOUR INSTRUCTIONS TO US

Your instructions form the basis of any Creative Brief, Deliverables, and Services we provide to you.

SERVICES

We will supply the Services to you in accordance with the description contained on the Website.

The Services will be provided by us under your direction, or your authorised representative, in all material respects.

We may subcontract any aspect of the Services without prior notice to you, but we will remain responsible to you for all work conducted under this Agreement.

TIMING

Where we consider it appropriate to provide you with an estimate of any phases, performance milestones or completion dates for the Services, any such dates are estimates only and time shall not be of the essence for performance of the Services or the completion of Deliverables.

Time estimates depend on a number of factors that may change during the course of performing the Services, some of which may be outside our control. We will do our best to communicate any material changes to you as soon as practicable.

We will use reasonable commercial endeavours to deliver the Services in accordance with any agreed timeframes, but we do not guarantee any timing estimates and we will not be in breach of our obligations if we fail to meet any such timelines.

PAYMENT AND INVOICING

Our Fees for the Services are set out on the Website.

Payment of Fees is required in advance to secure our Services.

Our fees are exclusive of GST which will be set out in our invoice and must be payable in full by you in accordance with this clause.

PURCHASE OF STOCK IMAGES, FONTS, AUDIO OR VIDEO

Unless specified on the Website, our fees do not include any third-party costs incurred by us on your behalf, including but not limited to searches, production costs, purchase of stock images, commercial fonts, audio, video, printing/production.

If we intend to incur third party costs on your behalf which are not specified in the Schedule, and which will exceed the Service Quote, we will obtain your permission before doing so.

If we purchase any stock images or commercial fonts for use in the Services, we will be the licence holder and that image or font must only be used under the terms of the relevant licence. We may purchase rights to images that we use in providing the Services to you. Such images may be subject to a licence agreement between us and a third party that may restrict your use of those images. Please ask us if you would like to be given a copy of the terms of any such licence. Unless otherwise agreed in writing, we may at our discretion use images that have been used in providing the Services to you, with other clients or on other works. If you require specific images, you may be required to pay additional fee(s) for that use. Even if we agree to provide an image to you exclusively, we cannot guarantee that the image will not be used by other third parties who may have obtained these images from another party.

You agree to indemnify us and agree to keep us and our employees indemnified, against any and all claims arising out of any use of the abovementioned licenses by you that breaches or is alleged to have breached any of these licenses.

Subject to the relevant licence, ownership of stock images, audio or video will be transferred to you upon full payment of all our issued invoices.

We retain ownership to all Work in Progress, working files, drafts and other process items.

YOUR PROMISES TO US

In addition to any other obligations under this Agreement, in working with us you agree to:

be responsible for providing clear instructions and information as requested in an expeditious manner;
inform us of any restrictions or industry specific requirements in relation to the Services;
ensure that any Work In Progress provided by us to you is kept confidential and not shared with any third-parties including via social media;
ensure that any materials you provide to us does not infringe on a third party’s Intellectual Property Rights;
act courteously to us and not do anything which would harm our reputation
provide us with specifications of any regulatory requirements to which you are required to adhere.

OUR PROMISES TO YOU

In addition to any other obligations under this Agreement, in working with you we agree to:

conduct the Services in a professional manner using due care and skill;
provide the Services in a timely manner as agreed;
comply with all legislative, regulatory and other government requirements including in relation to GST, workers compensation, payroll tax, income tax, fringe benefits tax, PAYG tax, group tax and superannuation contributions;
use reasonable efforts to ensure conformity to a commensurate level of professional conduct as normally required to perform similar services;
not do anything to harm your reputation or the reputation of your, clients, suppliers, agents, and will inform you within a reasonable period of becoming aware of any derogation or potential reputation damage by any other employee, contractor, supplier, client or social media follower.

INTELLECTUAL PROPERTY

Unless otherwise agreed in writing, you acknowledge and agree that all Intellectual Property Rights in all creation files, working files, artwork and other documents provided by us in connection with the Services vests in us on its creation. For the avoidance of doubt, this does not include your Background IP or any licenses (such as image licenses).

We retain all ownership and Intellectual Property Rights in the Deliverables and upon full payment of our Services Quote and any additional fees owed, we grant, you a perpetual, irrevocable licence to use the Final Deliverables.

In the event that you and us agree that the Final Deliverables are to be provided to you before you have paid the entirety of our Services Quote, we grant you a conditional licence to use the Final Deliverables subject to you meeting any pre-arranged payment obligations. If you default on any such payments, your conditional licence to the Final Deliverables is suspended until full payment of our Services Quote and any other monies you owe to us are paid in full.

Provided that you have paid all outstanding fees owing to us for the Project the subject of the relevant works, you may assign the licence granted in the above clause.

Each party retains ownership of its Background IP and grants to the other party a non-exclusive, royalty-free licence as follows:

for By Ninja Pty Ltd, to the extent necessary to enable us to provide the Services, exercise our rights in accordance with the provisions of these terms and conditions and otherwise carry out our obligations under these terms and conditions, and
for you only for the purpose and scope of the Deliverables, unless otherwise agreed in writing.

While Final Deliverables will be unique and tailored to your specifications, if during a Project we develop a general concept or process which is capable of being patented then we retain the ownership to that concept or process, but which will not affect your rights to the Final Deliverable provided in this Agreement.

To the extent permitted by applicable laws and for your benefit, we will, upon your request in writing procure the consent from the holder of any moral rights in the Project.

We reserve the right to display all designs that we create for you on our website and our marketing material, including on social media platforms (Display Rights). However, we agree not exercise our Display Rights until the earlier of:

After you have publicly released any of the designs, we have provided you under this Agreement; or
Nine (9) months’ from the date we provided you with the Final Deliverables.

CONFIDENTIALITY & PRIVACY

Each Party must not, and must ensure that its officers, employees, agents and sub- contractors do not, use or disclose any Confidential Information or Personal Information of the other Party without that other Party’s consent, other than for the purposes of performing this Agreement.

The obligations under this clause do not apply to the extent that:

any information is publicly available (other than as a result of a Party’s breach of this Agreement);
any information is lawfully provided to a Party by a third party;
a Party is required by law to disclose the information (and prior notice of the disclosure is given to the other Party); or
a Party is required by this Agreement to disclose the information to a third party.

During the Term, each Party must keep all Confidential Information in a secure location so that no unauthorised person is reasonably able to gain access to it.

If we collect or have access to Personal Information in order to provide the Services, we will:

ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
not use Personal Information other than for the purposes of performance of the Services, unless required or authorised by law;
not disclose Personal Information without your consent, unless required or authorised by law;
ensure that only authorised personnel have access to Personal Information;
immediately notify you if we become aware that a disclosure of Personal Information is or may be required or authorised by law;
make our officers, employees and subcontractors aware of our obligations under this clause;
comply with such other privacy and security measures as you reasonably advise in writing from time to time.

We will notify you as soon as practicable upon becoming aware of any breach of this clause.

LIABILITY

You agree to indemnify us, our officers, employees and agents (those indemnified) from and against any claim, action, demand, damage, loss, liability, cost, charge, expense, outgoing, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with the Services provided to you, or in relation to your breach of this Agreement.

Notwithstanding any other provision of this Agreement, the liability of you or us arising under and/or in connection with this Agreement will exclude any liability for indirect or consequential loss.

To the maximum extent permitted by Law, our aggregate liability in respect of any causes of action arising under or in connection with this Agreement, whether in contract, tort (including negligence), statute, equity or otherwise, is limited to an amount equal to the cumulative total of the Service Quote paid or payable by you to us in the first two (2) months of this Agreement.

Our supply of the Services may be subject to certain statutory guarantees available to you, including under the Australian Consumer Law. Nothing in this Agreement excludes, restricts or modifies the application of statutory guarantees or any associated rights or entitlements to remedies that you may have.

NOTICES

All notices between you and us must be provided to the relevant address as provided.

TERMINATION

We may terminate this Agreement by written notice to you effective immediately upon the occurrence of any of the following:

If you are in breach of any of your payment obligations and fail to remedy the breach within five (5) Business Days after written notice to do so, or such longer period as agreed in writing between you and us;
If you or your representatives instruct us to perform an act that is illegal, including but not limited to a breach of copyright or trademark.
If in our reasonable opinion, you are abusive or aggressive to us or any of our representatives;
If you fail to provide us with a substantive response to a request for information or materials that we request in order to perform the Services following three requests by us for such information or materials and 15 Business Days have lapsed.
If you publish any Work In Progress, including on social media without our express written permission.

Both parties may terminate this Agreement upon written notice to the other party to the relevant address in the Schedule, for any reason by giving no less than twenty (1) Business Days prior written notice, terminating the Agreement.

Upon termination of this Agreement, in addition to an any outstanding invoices, we will issue you with a final invoice and you must pay us for Services rendered under these invoices including Inside-Scope Amendments exceeding the two allowed, as well as any Outside-scope Amendments.

If this Agreement is terminated during a Project or prior to the completion of a Project, subject to you paying our fees up to and including the date of termination, we agree to provide you with the most recent draft Deliverables which will become the Final Deliverables.

DISPUTE RESOLUTION

If a dispute arises in respect of this Agreement, the Creative Brief or the Project, before any proceeding can be commenced in a Tribunal or Court, the party claiming that a dispute has arisen must give the other party written notice setting out the dispute and allow 14 days’ notice for the other party to respond.

If after 14 days’ the dispute is not resolved then it must be referred to mediation and the costs of the mediation shall be paid by the parties equally. If the parties cannot mutually agree on a mediator within 7 days, then the parties must ask that the President of the Law Society of Queensland to appoint a mediator.

If the parties cannot mutually resolve the dispute at mediation or within 10 Business Days from the date of mediation, then either party may commence proceedings in a Tribunal or Court of competent jurisdiction in Queensland.

Nothing in this clause will prevent either party from seeking urgent interlocutory relief.

ENTIRE AGREEMENT

This Agreement is the entire agreement between you and us and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, in relation to this Agreement and Project.

RELATIONSHIP OF PARTIES

You engage us as an independent contractor and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise between you and us.

SEVERABILITY

If any part of this Agreement is found by a competent Court or Tribunal to be void or voidable, then that part is severed from this Agreement but without affecting the continued operation of the remainder of this Agreement.

APPLICABLE LAW

The laws of the State of Queensland govern this Agreement and the Parties submit to the non-exclusive jurisdiction of the courts of that State.

SURVIVAL

Clauses 1, 8, 14 – 16, 19, 21 and 23 will remain in full force and effect following the expiry or termination of this Agreement.