These Terms and Conditions, together with the Statement of Work for the services to be provided to the Company by Amber Stapff, will (once executed) be deemed to be a conclusive record of the entire agreement and understanding between Amber Stapff and the Company with respect to the services to be provided by Amber Stapff.



  1. 1.       Services

1.1    If either party wishes to amend the scope of the Services (as defined in part 2 of the Statement of Work) after the date that the Statement of Work has been executed, the parties must agree such changes in writing (including any necessary changes to the Fee (as defined in part 7 of the Statement of Work)).

1.2    The Company must perform the Company Obligations (as defined in part 5 of the Statement of Work, if any) and otherwise provide Amber Stapff with any and all relevant information, materials and assistance, in a timely manner as and when reasonably requested by Amber Stapff.

1.3    If Special Conditions are specified in part 9 of the Statement of Work, the parties agree that those Special Conditions apply to, and are incorporated into, this Terms and Conditions.  If there is any inconsistency between these Terms and Conditions and any Special Conditions, the Special Conditions will prevail to the extent of the inconsistency.

  1. 2.       Deliverables

2.1    If the Company reasonably believes that the Deliverables (as defined in part 3 of the Statement of Work) (including any Deliverables amended in accordance with clause 2.2 (Amended Deliverables)) do not materially comply with the Specifications (as defined in part 4 of the Statement of Work), and the Company requires this non-conformance to be rectified, the Company must notify Amber Stapff in writing of this (providing details of the non-conformance) (Rectification Notice) within 7 days of being provided with the Deliverables.

2.2    Upon receiving a Rectification Notice Amber Stapff must amend the Deliverables so that they materially comply with the Specifications and provide the amended Deliverables to the Company.

2.3    If the Company does not issue Amber Stapff with a Rectification Notice within 7 days of being provided with the Deliverables or the Amended Deliverables, the Company will be deemed to have accepted the Deliverables or Amended Deliverables (as applicable).

2.4    If at any time the Company (or its employees, officers, contractors or agents (Personnel)) makes any changes (or causes any changes to be made) to any Deliverable (including as a result of any Personnel accessing the administration dashboard of a website) and the Company wishes Amber Stapff to rectify that change, the Company acknowledges that such rectification does not fall within the scope of the Services and Sprowt reserves the right to charge the Company an additional fee for undertaking such rectification.

  1. 3.       Payment

3.1    On or about the date that the parties execute the Statement of Work, Amber Stapff will invoice the Company for 50% of the Fee (Booking Fee). Amber Stapff will not be obliged to undertake the Services until the Booking Fee has been paid.  Amber Stapff will invoice the Company for the remaining 50% of the Fee (Balance) on or about the date that is 4 weeks after the date that the parties execute the Statement of Work (or if the Deliverables are due to be provided prior to this date, prior to Amber Stapff providing the Deliverables to the Company). Amber Stapff will not be obliged to deliver or install (as applicable) any Deliverables until the Balance has been paid.  Invoices must be paid within 7 days of the date of the invoice. Invoices must be paid by direct deposit to the account nominated on the invoice (preferred) or by Paypal ( A 2.4% surcharge applies for all PayPal payments.  All invoices will be emailed to the Company by Amber Stapff as a PDF file.

3.2    If the Company does not pay any amount owing to Amber Stapff by the due date for such payment, Amber Stapff may: (a) suspend performance of its obligations under this Agreement until such amount is paid in full (and amend the Timetable in good faith to reflect such suspension); and/or (b) charge the Company a late fee of $5 per day on and from the due date until (but excluding) the date on which payment is made.

3.3    If the Company in good faith disputes whether the whole or part of an invoice submitted by Amber Stapff is payable: (a) the Company must pay the full amount in the invoice by the due date for payment and give written notice to Amber Stapff within 7 days after receiving the invoice of the amount disputed and the reasons for the dispute; (b) if Amber Stapff and the Company are unable to resolve any dispute between them regarding the amount invoiced within 7 days of Amber Stapff receiving the Company’s notice under clause 3.3, the parties must invoke the dispute resolution process in clause 9; and (c) if the decision reached in respect of the dispute is that a lesser amount than the full amount of the invoice is payable by the Company, Amber Stapff must promptly refund to the Company the difference between the amount invoiced and that lesser amount.

3.4    Neither party may recover from the other party any amounts due under this Agreement by way of set-off.

  1. 4.       Reimbursable Expenses

4.1    Expenses that Amber Stapff expects to incur in performing the Services are included in the Fee and are not separately reimbursable by the Company unless the Statement of Work provides otherwise, or on a case-by-case basis for unusual expenses, the Company has agreed in advance in writing to reimburse Amber Stapff for the expense (each a Reimbursable Expense).

4.2    Amber Stapff will invoice the Company for Reimbursable Expenses with no mark up or administrative fees, and the Company will pay for Reimbursable Expenses within 14 days of the date of that invoice.

  1. 5.       GST

5.1    In this Agreement, the terms “GST” and “Supply” have the meaning given to those terms in the A New Tax System (Goods and Service Tax) Act 1999 (Australian GST Act). All amounts payable by the Company in this Agreement have been calculated without reference to GST.  If Amber Stapff is or will be required to pay GST in respect of any Supply made to the Company under this Agreement the prices in respect of those Supplies will be increased by an amount equal to the amount of GST Amber Stapff is or will be required to pay (ignoring any input tax credits) under the Australian GST Act.

  1. 6.       Intellectual Property 

6.1    Intellectual Property Rights means all present and future intellectual property rights of whatever nature (whether or not registered or registrable) including, but not limited to: (a) patents, designs, copyright, trade marks, know how, brand names, product names, inventions, trade secrets and any other rights subsisting in the results of intellectual effort in any field; and (b) any application or right to apply for registration of any of the rights in clause (a) and all renewals and extensions of those rights.

6.2    Upon the Company providing any materials to Amber Stapff (Company Materials), the Company grants Amber Stapff a non-exclusive, non-transferable, royalty-free licence to use those Company Materials for the purpose of providing the Services and for marketing and promoting its authorship of any Deliverables in accordance with clause 6.4 (Company Licence).  The Company warrants to Sprowt that it has the right to grant Amber Stapff the Company Licence, and the use by Amber Stapff of the Company Materials in accordance with the Company Licence will not infringe any third party rights (including any third party Intellectual Property Rights).

6.3    On the date that Amber Stapff provides the Deliverables to the Company, Amber Stapff grants the Company a royalty-free, perpetual (subject to this clause), non-exclusive licence to use the Deliverables (and the Intellectual Property Rights in the Deliverables) for the sole purpose for which the Deliverables were created for the Company (Licence).  Amber Stapff may terminate the Licence (by notice to the Company) if the Company fails to pay any amount owing to Amber Stapff by the due date for payment of that amount. If the Licence is terminated by Amber Stapff in accordance with this clause 6.3, from the date of termination of the Licence the Company will have no right to use the Deliverables (and must immediately cease all use of the Deliverables).  Amber Stapff may agree in writing to reinstate the Licence upon payment in full by the Company of all amounts owing to Amber Stapff.

6.4    The Company agrees that Amber Stapff may at all times market and promote that it was the author of the Deliverables, including by publishing the Deliverables (and/or a link to the Deliverables) on its website (as a portfolio piece), entering the Deliverables into design competitions, and, to the extent that the Deliverables constitute a website, including a small (no more than 12pt) text link to Amber Stapff’s website at the bottom of that website.

6.5    The Company must immediately notify Amber Stapff of any issue, claim, demand, threat, notice of proceedings or cause of action against the Company relating to the Intellectual Property Rights in the Deliverables.

  1. 7.       Liability

7.1    Subject to clause 7.3, Amber Stapff will not be liable to the Company or to any other person for:

(a)      any loss, damage or delay to Deliverables while in transit to the Company;

(b)      any indirect, incidental, special or consequential loss or damage, loss of profits (or anticipated profits) or business or business opportunity, loss of data, damage to goodwill or reputation, or the outcomes of any use of the Deliverables; or

(c)      any loss or damage caused or contributed by: (i) any errors (including spelling errors and colour codes) in any Deliverables if the error was including in any proofs/artwork that were approved by the Company or its Personnel, or was otherwise included in Company Materials when provided to Amber Stapff by the Company or its Personnel; (ii) malfunction of the code or script of any Deliverable, or any failure of any Deliverable to function using a version of an Internet browser that was not commonly in use (or in existence) on the date of execution of the Statement of Work; (iii) any variation in any colour of a CMYK printed Deliverable from an RGB display of that CMYK colour model (and the Company acknowledges that comparisons between RGB prints and CMYK prints can be difficult because the colour reproduction technologies and properties of each are very different, and there is no simple or general conversion formula that converts between RGB and CMYK); (iv) downtime of any of Amber Stapff’s or any third party’s servers; or (v) malicious damage or interference to a computer system or website (including a computer system or website that constitutes a Deliverable) by any person, including mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.

7.2    Subject to clause 7.3, the maximum aggregate liability of Amber Stapff for all claims made by the Company in connection with this Agreement for losses, damages or costs, regardless of how they arise, is limited to the amount actually paid by the Company to Amber Stapff under this Agreement, and Amber Stapff’s liability to the Company is reduced to the extent that the loss, damage or cost being claimed was caused or contributed to by the Company or its Personnel.

7.3    Any representation, warranty, condition, guarantee or undertaking that would be implied into this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law, provided that nothing in this Agreement excludes, restricts or modifies any warranty, consumer guarantee, right or remedy conferred on the Company by the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.

  1. 8.       Term and termination

8.1    This Agreement commences on the earlier of: (a) the date that the parties execute the Statement of Work; and (b) the date that Amber Stapff first commences providing the Services to the Company; and expires on the date that the Services have been provided in full to the Company’s reasonable satisfaction (unless terminated earlier in accordance with these Terms and Conditions).

8.2    The Company may terminate this Agreement for convenience at any time by providing Amber Stapffwith at least 30 days written notice.  The Company acknowledges and agrees that if it terminates this Agreement under this clause, any portion of the Fee that has already been paid by it to Amber Stapff is non-refundable, and to the extent that the Amber Stapff has commenced providing the Services as of the date of such termination, clause 8.4(a) will apply.

8.3    A party (First Party) may terminate this Agreement immediately by notice in writing to the other party if: (a) the other party commits a breach of its obligations under this Agreement, the First Party has providing a notice to the other party describing the breach and requiring it to be remedied (Breach Notice), and the other party failures to remedy the breach within 14 days of receiving the Breach Notice; (b) the other party ceases to carry on business, is subject to any form of insolvency administration, or ceases to be able to pay its debts as they become due; or (c) any step is taken: (i) by a mortgagee to take possession or dispose of the whole or part of the other party’s assets, operations or business; (ii) to enter into any arrangement between the other party and its creditors; or (iii) to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, a controller, an administrator or other like person of the whole or part of the other party’s assets, operations or business.

8.4    If this Agreement expires or is terminated for any reason: (a) the Company must pay Amber Stapff all Fees and Reimbursable Expenses owing up to the date of expiry or termination (End Date) (including for any Services performed or Deliverables developed by Sprowt up to the End Date which have not yet been invoiced) (Unpaid Amounts), such Unpaid Amounts to be paid within: (i) 3 days of the End Date to the extent that Amber Stapff issued an invoice for such Unpaid Amounts prior to the End Date; and (ii) 7 days of the date of Amber Stapff’s invoice for such Unpaid Amounts to the extent that Amber Stapff had not issued an invoice for such Unpaid Amounts prior to the End Date; (b) if requested by the Company, and subject to the Company first complying with clause 8.4(a),Amber Stapff will deliver up to the Company the Deliverables, as developed as of the End Date; (c) the accrued rights and remedies of each party remain unaffected; and (d) clauses 2.4, 3, 4, 5, 6, 7, 8.4 and 10 survive.

  1. 9.       Disputes

9.1    The parties may not commence litigation or arbitration in relation to any matter arising directly or indirectly out of this Agreement (Dispute) until they have made reasonable efforts to promptly resolve the Dispute by negotiation, and if that fails, by mediation undertaken in Melbourne, Victoria (before a mediator agreed between the parties, or, if the parties have not reached agreement on the mediator within 7 days, before a mediator appointed by the President of the Law Institute of Victoria (or his or her nominee) on the application of either party). The parties will pay the mediator’s costs equally but otherwise the parties must pay their own costs of the mediation.  Nothing in this clause prevents a party seeking urgent interlocutory relief where failure to obtain such relief would cause irreparable damage to that party.

  1. 10.    General

10.1  A party (Affected Party) is not liable for any failure to perform or delay in performing its obligations under this Agreement (other than an obligation to pay money) if that failure is due to anything beyond that party’s reasonable control.  If the failure or delay exceeds 30 days, the other party may terminate this Agreement immediately by giving notice to the Affected Party.

10.2  It is agreed that Sprowt enters into this Agreement as an independent contractor to the Company, and nothing in this Agreement creates a relationship between the parties of employer/employee, principal/agent, a joint venture or a partnership.

10.3  Amber Stapff may sub-contract or otherwise engage another party to perform or discharge any, or all, of its obligations under this Agreement provided that Sprowt will be liable for the acts and/or omissions of such sub-contractors in their provision of the services and performance of the obligations as if Sprowt had committed such acts and/or omissions.

10.4  The Company acknowledges and agrees that nothing in this Agreement or the relationship between the parties prevents or restricts Amber Stapff from providing services (including services similar to the Services) to third parties.

10.5  This Agreement constitutes the entire agreement between the parties in relation to its subject matter.  All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

10.6  No part of this Agreement may be amended or varied except in writing signed by both parties.

10.7  A party may not assign or transfer this Agreement without the prior written consent of the other party.

10.8  Part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

10.9  Waiver of any power or right under this Agreement: (a) must be in writing signed by the party entitled to the benefit of that power or right; and (b) is effective only to the extent set out in that written waiver.

10.10   Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

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

10.12   This Agreement will be governed by and construed in accordance with the laws in force in the State of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of that State.

10.13   In this Agreement: (a) a reference to ‘this Agreement’ includes the background of, and any schedules and annexures to, this Agreement; (b) the singular includes the plural and vice versa, and other grammatical forms of defined words or expressions have corresponding meanings; (c) headings are used for convenience only and do not affect the interpretation of this Agreement; (d) a reference to a document includes the document as modified from time to time and any document replacing it; (e) if something is to be or may be done on a day that is not a business day then it must be done on the next business day; (f) the words “in writing” include any communication sent by letter, fax or email; (g) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time; (h) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and (i) all money amounts are stated in Australian currency unless otherwise specified.