Policy & Procedures

1. Definitions

1.1 In these terms and conditions, the following words and expressions shall have these meanings:

“the Client” the Client identified in the Letter of Agreement;

“Client Materials” the Client’s Intellectual Property, including the material, data, equipment and information to be provided to the Agency in accordance with clause 2 of this agreement;

“Disbursements” office expenditure as defined in the Letter of Agreement;
“Government Agency” any government body or any governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal , agency or entity in any part of the world.

“Fees” as such term is defined in the Letter of Agreement;

“Group Preferential” Multiple brands owned by one parent company. Discount is based on volume of work scheduled.

“the Agency” the Agency identified in the Letter of Agreement;

“Letter of Agreement” the letter of agreement dated incorporating these Terms and Conditions;

“Services” the Services as defined in the Letter of Agreement;

“the Material” all written and other creative material produced by the Agency for the Client in the provision of the Services;

“Taxes” taxes (including all sales, excise and storage taxes, license and permit fees), levies, imposts, charges and duties (including stamp and transaction duties) levied or imposed by Law or by any Government Agency together with any related interest, penalties, fines and expenses in connection with them;

“Term” as such term is defined in the Letter of Agreement.

2. Client Material

2.1 The Client must provide Client Material to the Agency.

2.2 The Company Material remains the property of the Client.

2.3 The Client grants or will procure a royalty-free, non-exclusive license for the Agency to use, reproduce and adapt the Client Material for the purposes of this agreement.

2.4 The Agency shall ensure that the Client Material is used strictly in accordance with any conditions or restrictions set out in this agreement.

2.5 Agency will archive supplied client material for up-to-one year and digital client material for 3 years. After this period files will be disposed of, unless expressed written instruction by client to request different course of action. Any material supplied which is not known to have reached the public domain at the end of this period will be returned to client or disposed of by secure means. i.e. shredded.

3. Reliance on Client Material

3.1 The Client warrants that the Client Material or any information provided by the Client shall be accurate, complete and sufficient for use by the Agency in the performance of the Services.

3.2 The Client acknowledges and agrees that the Agency will use and rely on the Client Material or any information provided by the Client in the performance of the Services.

4. Payment Terms

4.1 The Client will pay any invoice rendered by the Agency in respect of any payments due within [7] days upon completion of the project or 60 days from approval of the concept (or such other period specified in the invoice).

4.2 Fees payable monthly to the Agency may be invoiced to the Client in advance and shall be due on the first day of each period to which the Administration Fee relate.

4.3 Disbursements payable to the Agency shall be invoiced to the Client monthly in arrears.

4.4 The Agency reserves the right to be paid in advance by the Client whenever substantial advance payments or financial commitments are required to carry out the marketing campaign for the Client.

4.5 Group preferential fees applies to multiple brands owned by one parent company. The discount is based on volume of work scheduled. If the volume drops lower then the scheduled work as per the letter of agreement, then the Agency reserves the right to withdraw the discount and revert to creative services rate card.

4.6 All Fees and Disbursements shall be paid in Australian Dollars and shall be invoiced inclusive of GST. A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4.7 If any monies due from the Client to the Agency shall at any time or times remain unpaid [7] days after becoming due and payable then, without prejudice to any other rights that the Agency may have, interest shall be payable upon all or any part of such monies until payment at the rate of [3%] per annum above the base lending rate of the [NAB Bank] for the time being prevailing.

4.8 In case of default in payment by the Client of any invoice from the Agency, the Agency reserves the right at any time to cease providing any or all Services from the Client.

5. Agency Obligations

5.1 During the Term the Agency shall ensure that representatives of the Agency shall make themselves available to the Client from time to time at such reasonable times and locations as the Client and the Agency shall agree and the Agency shall keep the Client informed as to the progress of the Services.

5.2 The Agency shall perform the Services with all reasonable care, skill and diligence to the best of its ability and in accordance with accepted practices within the industry.

6. Relationship of Parties

6.1 The Client and the Agency agree that the relationship between them is solely that of independent contractors, and nothing in this agreement shall be interpreted to create between the parties any relationship as employer/employee, agent/principal, partners, co-owners or joint venturer.

6.2 In dealing with third parties supplying advertising services and content (e.g. electronic or print media) the Client and the Agency agree that the Agency does not act as agent for the Client and does not have authority to bind the Client to any contracts with such third parties.

7. Liability

7.1 The Client shall indemnify and keep indemnified the Agency from and against any and all legal action, proceedings, claims, damages, losses, expenses or liabilities, which the Agency may incur or sustain as a result of or in connection with any information, representation, reports, data, or material supplied, prepared, approved or authorised by the Client.

7.2 Save as expressly stated, any property or information made available by the Client to the Agency for any purpose arising from or in connection with this agreement shall be and at all times at the sole and entire risk of the Client. The Agency shall not be subject to any liability for such property or information unless the loss, damage, or third party liability arises through any fault, negligence or unauthorised act on the part of the Agency or its employees.

7.3 Notwithstanding anything else contained in these Terms and Conditions, the Agency shall not be liable to the Client for loss of profits or other indirect or consequential loss caused by any marketing campaign provided by the Agency whether arising from negligence, breach of contract or howsoever.

8. Intellectual Property

8.1 It is the intention of the Agency and the Client that upon final payment to the Agency of all fees for Services performed, the Client shall own all copyright and all (whether or not registered) design, trade mark or other intellectual property rights (“the Rights”) in and to the Material except to the extent that:

8.1.1 the Material consists of the Agency’s pre-existing materials;

8.1.2 the Material consists of pre-existing material the rights to which vest in a third party or parties;

8.1.3 the Material consists of material that the Agency has submitted to the Client and the Client has elected not to use; or

8.1.4 the Agency may reasonably wish to use it for the purposes of promoting its own business.

8.2 During the provision of the Services, if the Agency discovers, develops or first reduces to practice any procedure, process or method whether or not that procedure, process or method is capable of being commercially exploited, registered or patented, such procedure, process or method is the sole property of the Agency and the Client must be not use, exploit, adapt or infringe such property of the Agency.

8.3 If the Agency intends to incorporate into any of the Material any material the Rights in respect of which vest in a third party the Agency shall procure the assignment of the of the Intellectual Property rights to itself and then transfer them to the Client. If no assignment of the Rights is possible, the Agency shall inform the Client as soon as reasonably practicable and negotiate a grant of the required usage rights at a pre-agreed cost to the Client.

9. Confidential Information

9.1 Each of the parties acknowledge a duty during or after the Term to not disclose without the other’s prior written permission any confidential information concerning the other’s business, its business plans, questionnaires or associated companies whether or not resulting from studies or surveys commissioned and paid for by the Client.

9.2 For the avoidance of doubt the restrictions in this clause shall not prevent:

9.2.1 the disclosure or use of confidential information in the proper performance of the Agency’s duties;

9.2.2 the disclosure of confidential information required by law;

9.2.3 the disclosure of confidential information which has come into the public domain otherwise than through unauthorised disclosure; or

9.2.4 the disclosure of confidential information to the Agency’s legal advisors or insurers.

9.3 The Client acknowledges that nothing in this agreement shall affect the Agency’s right to use as the Agency sees fit any general sponsorship, marketing or advertising intelligence gained by the Agency in the course of its appointment by the Client.

10. Non-solicitation of Agency Employees

10.1 The Client must not during the term of this agreement or within six months of the date when an employee’s contract of employment with the Agency would have lawfully ended, attempt to employ, recruit, solicit, entice, induce or encourage any employee of the Agency to enter into a Contract of Services with the Client.

10.2 The Client acknowledges and agrees that a breach of clause 10.1 will entitle the Agency to:

10.2.1 the minimum damages in any case of that employee’s gross salary and entitlements;

10.2.2 the Client will be liable to compensate the Agency for the loss of the employee and any costs associated with recruiting, inducting and training an alternative employee; and

10.2.3 damages may not be an adequate remedy for a breach of clause 10.1.

10.3 The Agency does not have to provide evidence of any loss or damages suffered by the Agency for the enforcement of this clause 10.2.

10.4 Any consent given by the Agency for an employee of the Agency to undertake work for he Client may be granted by the Agency in its sole and unfettered discretion.

11. Termination

11.1 Without prejudice to the rights and remedies of either party at the date of termination, the Letter of Agreement may be terminated forthwith by written notice from either party if: (i) the other commits any material breach of any of the terms herein and, if capable of remedy, shall have failed to remedy the breach within 30 days after the receipt of a request in writing from the other party, (such notice to detail the breach and to contain a warning of such party’s intention to terminate); or (ii) the other becomes insolvent or bankrupt or a winding-up petition is presented and not discharged within 30 days or is otherwise unable to pay its debts as they fall due.

11.2 In addition to the provisions of clauses 11.1, the Client may terminate this Contract at any time by giving the Agency [three months] notice in writing and payment of any outstanding Fees and Disbursements.

11.3 The Letter of Agreement may be terminated forthwith by written notice from the Agency if the Client fails to pay any sum due and such sum remains unpaid for [14 days] after written notice from the Agency that such sum has not been paid.

11.4 In the event of termination of the agreement by notice in accordance with either clauses 11.2 or 11.3 the Client will be responsible for all Fees payable hereunder to the Agency together with all costs, expenses and Disbursements incurred by the Agency on behalf of The Client up to and including the date of termination.

11.5 On the satisfaction by the Client in full of its payment obligations the Agency will cooperate with the Client so far as is practicable in enabling the Client to take over any contract or other arrangement with third parties and will transfer to the Client any unused materials purchased on behalf of the Client.

11.6 In the event that detailed creative or other work for a future programme or project prepared by the Agency at the request of the Client during the Term is subsequently implemented in whole or in part by or on behalf of the Client, the Client shall adequately compensate the Agency for such work.

12. Force Majeure

12.1 The Agency shall not be held responsible by the Client for any breach of contract if the Agency is prevented or hindered from fulfilling its obligations by any circumstance or event outside the reasonable control of the Agency, provided that the Agency gives written notice of such circumstance or event to the Client within a reasonable period of time.

13. Governing Law

The Client and the Agency agree that this agreement will be governed by, construed and enforced in accordance with the laws of the Commonwealth of Australia and the State of New South Wales. In the event of any dispute between the Client and the Agency resulting in litigation, the Client and the Agency agree that the courts of [New South Wales] shall have jurisdiction to hear the matter.

14. Waiver

14.1 No party to this agreement may rely on the words or conduct of any other party as a waiver of any power unless the waiver is in writing and signed by the party granting the waiver and stated to be a waiver granted under this clause 12.1.

15. Entire Agreement

15.1 The clause headings do not form part of this Agreement and shall not be taken into account in its construction or interpretation.

15.2 These Terms and Conditions and the Letter of Agreement form the entire agreement between the parties and neither these Terms and Conditions nor the Letter of Agreement or any of their terms or conditions can be waived or varied except by the written agreement of both parties. The parties agree that neither has relied on any representation contrary to these Terms and Conditions and the Letter of Agreement. In the event of any conflict between these Terms and Conditions and the terms of the Letter of Agreement, the terms of the Letter of Agreement shall prevail.

16. Notice

16.1 Any notice or communication given hereunder shall be in writing and shall be left at or sent by recorded delivery, post or facsimile transmission to any party at the address set out in the Letter of Agreement or such other address of which notice in writing is given for that purpose. Any notice so given by post shall be deemed to have been served 48 hours after it is posted and in proving such service it shall be sufficient to prove that the envelope containing the notice was properly addressed and posted as aforesaid. Any notice given by personal delivery or facsimile transmission shall be deemed served the next working day after the delivery or facsimile transmission.

17. Invalidity and Enforceability

17.1 If any provision of this agreement is invalid under the law of any jurisdiction, the provision is enforceable in that jurisdiction to the extent that it is not valid, whether it is in severable terms or not.

18. Miscellaneous

18.1 The clause headings do not form part of this Agreement and shall not be taken into account in its construction or interpretation.

18.2 These Terms and Conditions and the Letter of Agreement form the entire agreement between the parties and neither these Terms and Conditions nor the Letter of Agreement or any of their terms or conditions can be waived or varied except by the written agreement of both parties. The parties agree that neither has relied on any representation contrary to these Terms and Conditions and the Letter of Agreement. In the event of any conflict between these Terms and Conditions and the terms of the Letter of Agreement, the terms of the Letter of Agreement shall prevail.

18.3 Clauses 4,5, 6, and 7 shall survive the termination and expiry of this agreement.