Terms of service.

‍Terms and Conditions of Engagement

Last Updated: 6 January 2025

Quince Portrait Pty Ltd (ACN 690 608 934) agrees to provide you (Customer) with its audio-based interview services and associated digital deliverables 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 (being an audio interview recording produced by Quince) 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.

For the purposes of this Agreement, Services means the audio-based interview services and associated digital deliverables provided by Quince as described in an Order.

  1. Products and Portrait

1.1: You (Customer) have provided Quince with an order, request or instructions to provide audio-based interview services and associated digital deliverables, as set out on Quince’s website or other marketing material (a Portrait, being an audio interview recording produced by Quince), 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, notified, updated or modified by Quince as part of providing the Portrait (an Order). An Order is valid for 12 months, after which it may be cancelled, changed, renewed or replaced.

1.2: The Customer acknowledges that the Services involve subjective and personal expression and that Quince does not guarantee any particular outcome, narrative, tone, or content in any Portrait.

  1. Acceptance of Order

2.1: 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 the Customer and apply to all options or components of the Order accepted by Quince, unless Quince expressly confirms in writing that only certain options or components are accepted. 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.

2.2: 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, Quince may, acting reasonably, apply additional fees at its usual rates and revise delivery timeframes. Quince reserves the right to provide the Customer with a revised Order dealing with completion of the Portrait outside the original scope, or to decline to implement the requested changes.

2.3: Quince may suspend or delay commencement or completion of a Portrait if any applicable fees remain unpaid, without affecting Quince’s right to payment under this Agreement.

3. Payment Terms

3.1: 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 that 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, and may suspend or delay performance of the Services while any fees remain unpaid. If Customer wishes to query an invoice it must do so in writing within 14 days of receipt of it.

3.2: 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 forming part of the Order) and payment terms will be under Clause 3, 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.

3.3: Portraits or work in progress will not be completed or delivered if any fees or expenses are unpaid, but Quince may elect to continue any work without waiving or affecting its rights to payment under this Agreement.

3.4: 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.

3.5: All payments made under this Agreement are non-refundable except as expressly set out in this Agreement or required by applicable law.

4. Intellectual Property

4.1: Subject to full payment of all fees and expenses, Quince grants the Customer a personal, non-exclusive, non-transferable and revocable licence to access, use, reproduce and share the final completed Portrait for the Customer’s personal and non-commercial purposes. This includes sharing the Portrait with family and friends, posting the Portrait (or excerpts of it) on social media or other public platforms, and incorporating the Portrait into personal videos or presentations (including memorial or funeral materials).

4.2: Any editing or modification of a Portrait is subject to and governed by clause 7 (Delivery).

4.3: The Customer must not use the Portrait, or any part of it, for any commercial purpose without Quince’s prior written consent. Commercial use includes resale, licensing, paid distribution, use in advertising, marketing or media, sponsorships, endorsements, or any other use intended to generate revenue or commercial benefit, whether directly or indirectly.

4.4: Quince retains all right, title and interest (including copyright) in and to:

  • the Portrait;

  • all recordings, edits, drafts and working materials;

  • the interview structure, prompts, methodology, production processes, editing techniques and delivery systems; and

  • all underlying concepts, know how and intellectual property used in providing the Services.

Nothing in this Agreement transfers ownership of any intellectual property to the Customer.

4.5: If a Portrait does not proceed beyond an initial Order, or is terminated for any reason, the Customer is not granted any licence or other rights in respect of any recordings, drafts or materials and must not make any use of them.

4.6: Quince will not use any part of a Portrait for marketing, promotional or publicity purposes without the Customer’s separate express written consent.

4.7: Except as expressly set out in this Agreement, no licence, assignment or other right is granted to the Customer by implication, estoppel or otherwise.

5. Third Party Access 

5.1: The Customer acknowledges that a Portrait may continue to exist and be accessible in circumstances where the Customer is unable to access or manage it themselves, including due to death, incapacity, illness, injury or permanent disability.

5.2: Quince will only provide access to a Portrait to a third party where the Customer has expressly authorised such access in writing and nominated the specific person or persons who may receive access.

5.3: If no such authorisation has been provided, Quince has no obligation to provide access to any person, including family members, personal representatives, guardians, attorneys, executors or beneficiaries.

5.4: Quince is not responsible for determining capacity, legal authority, estate entitlements, succession rights or resolving any dispute between third parties. Quince may refuse, suspend or withdraw access where a dispute arises or where providing access would expose Quince to legal or reputational risk.

5.5: To the maximum extent permitted by law, the Customer releases and indemnifies Quince from any claim arising out of or in connection with the provision of, or refusal to provide, third party access to a Portrait.

5.6: Any third party access authorisation may be revoked or amended by the Customer at any time while the Customer has capacity by written notice to Quince.

6. Customer information

6.1: 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.

6.2: The Customer expressly consents to being audio recorded as part of the Services and acknowledges that such recordings form the basis of the Portrait.

6.3: The Customer warrants that all information, materials, statements and content provided or spoken by the Customer during the Services are true and accurate to the best of the Customer’s knowledge and may be lawfully recorded, used and included in the Portrait. The Customer warrants that they have the legal right and authority to provide and speak about all such content and that doing so does not infringe the intellectual property, privacy, reputation or other rights of any third party, and is not defamatory, misleading, offensive or unlawful. The Customer indemnifies Quince against all claims, losses, damages, liabilities, costs and expenses (including reasonable legal fees) arising from or in connection with any breach of this clause, including any third-party claim relating to the content of a Portrait. Quince may, in its discretion, exclude, edit or remove any content it reasonably considers may breach this clause without any liability to the Customer. Quince is not responsible for any loss of or damage to materials provided by the Customer. If Quince reasonably considers that continued performance of the Services would breach this clause, Quince may suspend or terminate the relevant Order without refund, subject to any non-excludable rights under applicable law.

7. Delivery

7.1: 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).  

7.2: Upon delivery of a Portrait, the Customer has 30 calendar days, or any other period specified in an Order, to notify Quince in writing of any requested revisions. Permitted revisions are strictly limited to the removal of content or the correction of factual errors. Quince will not add new material, new recordings or new narrative content after delivery unless expressly agreed in writing. If no such notice is provided within that period, the Portrait is deemed accepted and final.

7.3: Quince may deliver the Portrait via digital download, a private online webpage accessible via a direct link, or other electronic means. Any online access provided is link based only and is not password protected or otherwise access controlled. Quince does not control how any access link is shared once provided and is not responsible for any access by third parties resulting from the Customer sharing the link. The Customer acknowledges that access to the Portrait may be time limited and is provided for convenience only, and that Quince is not responsible for maintaining copies of the Portrait after delivery. Unless otherwise agreed in writing, Quince does not guarantee ongoing or indefinite availability of any online access and may remove or deactivate access after a minimum period of one (1) year from delivery, or earlier where required by law or to manage legal or reputational risk. The Customer is solely responsible for retaining copies of the Portrait once delivered. Unless otherwise agreed in writing, Quince may remove or delete Portraits and related files after the expiry of any access period without notice and without liability to the Customer.

7.4: Quince may suspend or withdraw access to a Portrait if required to do so by law, or if continued access would expose Quince to legal or reputational risk, without liability to the Customer.

8. Limitation of liability

To the maximum extent permitted by law, the Customer acknowledges and agrees that Quince provides the Portrait at the request of and based on information and content provided or spoken by the Customer. Except to the extent that liability cannot be excluded under applicable law, Quince excludes all liability for any loss, damage, cost or expense suffered or incurred by the Customer arising out of or in connection with the Portrait, including any delay in delivery or completion.

Without limiting the above, Quince is not liable for any indirect, consequential or special loss, loss of reputation, emotional distress, or personal consequences arising from the content of a Portrait or its use.

The Customer indemnifies and holds harmless Quince from and against all claims, losses, damages, liabilities, costs and expenses (including reasonable legal fees) arising from:

  1. content provided or spoken by the Customer during the Services;

  2. any use of the Portrait by the Customer or any third party; and

  3. any third-party claim relating to the Portrait, including defamation, invasion of privacy, or reputational harm.

This clause applies from the time an Order is made, is a continuing obligation, and survives termination of this Agreement.

If, despite this clause, Quince is found liable to the Customer for any loss or damage, Quince’s total aggregate liability arising out of or in connection with an Order is limited to the total fees paid by the Customer under that Order.

9. Warranties

9.1: To the full extent permitted by law, Quince makes no warranties or guarantees of any kind, express or implied, relating to the Services or any Portrait, including as to quality, suitability, accuracy, completeness, outcome, or fitness for purpose. To avoid doubt, the Services involve subjective and personal expression, and the Customer is solely responsible for the quality, accuracy and content of any information or statements provided or spoken by the Customer during the Services, including via any electronic communication methods.

9.2: Where any guarantee, condition or warranty is implied by law and cannot be excluded, Quince’s liability is limited, at Quince’s option, to the re-supply of the relevant Services or the payment of the cost of having the Services re-supplied.

10. Confidentiality

Upon provision or acceptance of an Order, a party may receive or develop confidential information relating to the other party, including business information, ideas, concepts, methods, techniques or other non public elements of an Order (Confidential Information).

Each party must use Confidential Information solely for the purpose of performing its obligations under this Agreement and must not disclose Confidential Information to any third party except with the other party’s prior written consent, where required by law, or to its professional advisers (including legal, accounting and insurance advisers) on a confidential basis.

For the avoidance of doubt, Confidential Information does not include:

  1. the Portrait or its content once delivered to the Customer;

  2. information that is publicly available other than through a breach of this Agreement; or

  3. Quince’s underlying methodologies, processes or know how used in providing the Services.

Unless requested otherwise in writing by the Customer, a Customer’s name is not Confidential Information.

11. Credit and Promotional Use

11.1: The Customer will credit, acknowledge or attribute Quince (or its personnel, as Quince advises) as the creator of the Portrait where reasonably requested by Quince and where such attribution is appropriate having regard to the nature and use of the Portrait. Quince may place a credit on or in a Portrait, which the Customer must not remove and must use reasonable endeavours to retain intact.

11.2: Quince may name or refer to the Customer to promote Quince’s business, provided that this does not disclose the content of a Portrait. Quince may only use any part or sample of a Portrait for marketing or promotional purposes with the Customer’s separate express written consent, which is voluntary and may be requested after completion of the Services.

11.3: The Customer may withdraw any marketing consent given under clause 10.2 at any time by written notice, in which case Quince will cease future use of the relevant material as soon as reasonably practicable.

12. Termination 

12.1: The Customer may terminate an Order at any time by written notice to Quince, subject to any timeframes set out in the relevant Order. Quince may terminate an Order or this Agreement at any time by written notice to the Customer if the Customer breaches this Agreement, if Quince’s ability to perform the Services is adversely affected by any act or omission of the Customer, or due to any event beyond Quince’s reasonable control.

12.2: Upon termination of an Order or this Agreement for any reason, the Customer must immediately pay Quince all fees and expenses owing for Services performed up to the date of termination, including any non-refundable deposit. Clauses 4 (Intellectual Property), 5 (Customer Information), 6 (Delivery), 7 (Limitation of Liability), 8 (Warranties), 9 (Confidentiality), 10 (Credit and Promotional Use), and this Clause 11 survive termination.

12.3: If Quince terminates an Order or this Agreement due to any act or omission of the Customer, including breach or negligence, Quince may retain any payments already made by the Customer in respect of that Order, without prejudice to any other rights or remedies available to Quince.

13. General

13.1: Quince is a contractor, not an employee, partner or agent of Customer.

13.2: A failure or delay by either party to exercise any right or remedy under this Agreement does not operate as a waiver of that right or remedy. Any waiver or variation of this Agreement must be in writing and signed by the party granting the waiver. If any provision of this Agreement is held to be illegal, invalid or unenforceable, that provision is to be severed and the remaining provisions remain in full force and effect.

13.3: The Customer must not assign, novate or otherwise transfer any rights or obligations under this Agreement without Quince’s prior written consent. Quince may assign or novate this Agreement as part of a sale of its business or assets.

13.4: This Agreement is governed by the laws of Western Australia and the parties submit to the exclusive jurisdiction of the courts of Western Australia. This Agreement, together with any applicable Order and any agreements entered into under its terms, constitutes the entire agreement between the parties.

13.5: This Agreement may be executed and delivered electronically and in counterparts, which together constitute one agreement.