Terms and Conditions

1. Definitions

  • 1.1 “Additional Services” shall mean any goods or services provided by the Supplier which fall outside the scope of works described in the Quotation.
  • 1.2 “Ad Spend” shall mean amounts payable to advertising, media, publishing or social platforms for the placement of the Client’s advertising, and does not include the Supplier’s management fees.
  • 1.3 “Australian Consumer Law” shall mean Schedule 2 to the Competition and Consumer Act 2010 (Cth).
  • 1.4 “Business Day” shall mean a day other than a Saturday, Sunday or public holiday in the place where the relevant obligation is to be performed or, where no place is specified, in Brisbane, Queensland.
  • 1.5 “Client” shall mean the entity or person named on any form provided by the Supplier to the Client (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy Goods. If the Client includes two or more persons, those persons’ liability is joint and several.
  • 1.6 “Client Materials” shall mean any materials provided by the Client to the Supplier for incorporation in the Goods, Works and/or Deliverables including but not limited to any images, photographs, illustrations, graphics, audio clips, video clips, text, copy, brand assets, logos, product information, testimonials, data and databases, together with any account access provided by the Client to the Supplier.
  • 1.7 “Contract” means each contract formed between the Supplier and the Client which incorporates the terms of this document.
  • 1.8 “Default Event” means an event of default under clause 14 of these Terms and Conditions.
  • 1.9 “Deliverables” shall mean all Deliverables, Goods, Services and/or Works undertaken by the Supplier (including, but not limited to, any advice or recommendations given regarding the Deliverables) and are as described on any Invoice, Quotation, Fees Schedule or any other forms provided by the Supplier to the Client.
  • 1.10 “Design Concept” shall mean the design concept, including any information architecture, design and static web site image, designed by the Supplier.
  • 1.11 “Design Materials” means any designs, design materials, software, routines, know-how, methodologies, strategic frameworks, user interface conventions or design patterns, interfaces to third party products and other development and design tools (and all enhancements and derivatives thereto) which the Supplier (i) developed prior to or otherwise than in the course of any Contract, or (ii) develops during the course of any Contract but which are developed either at the Supplier’s cost or which are not uniquely applicable to the particular specifications, characteristics or functions of the Deliverables.
  • 1.12 “Design Product” shall mean web ready website page(s) as well as print and/or production ready files designed by the Supplier in accordance with these Terms and Conditions.
  • 1.13 “Design Specifications” shall mean the design specifications or design brief for the Design Product agreed between the Supplier and the Client.
  • 1.14 “Disbursement” means any amount paid or debt incurred by the Supplier on behalf of the Client during the provision of the Goods and the Services under the Contract.
  • 1.15 “Fees Schedule” shall mean the schedule of fees agreed between the Supplier and the Client, and specified in or calculated by reference to any Quotation, estimate, or any other forms provided by the Supplier to the Client.
  • 1.16 “Goods” shall mean all goods, including Deliverables (including but not limited to any advice or recommendations given regarding the Goods), specified in the Quotation to be provided by the Supplier to the Client pursuant to a Contract.
  • 1.17 “GST” shall mean goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • 1.18 “Guarantor” means that person, persons or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
  • 1.19 “Intellectual Property” means, in respect of any person, all intellectual property and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:
    • (a) patents, trademarks, service marks, copyright, registered designs, trade names, symbols and logos; and/or
    • (b) patent applications and applications to register trademarks, service marks and designs; and/or
    • (c) all formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, castings, brochures and other information used by that person.
  • 1.20 “Invoice” means any tax invoice from the Supplier to the Client claiming an amount for payment for Goods, Services or Deliverables provided under a Contract between those parties.
  • 1.21 “PPSA” shall mean the Personal Property Securities Act 2009 (Cth).
  • 1.22 “Price” shall mean the cost of the Goods, Works and/or Deliverables as determined by the Supplier and any other amounts owing to the Supplier by the Client.
  • 1.23 “Project Engagement” shall mean a Contract which the Quotation describes as a project, or which is for a defined scope of Works with a defined end point, and which is not a Retainer Engagement.
  • 1.24 “Quotation” shall mean any quotation, proposal, scope of work, statement of work or engagement letter provided by the Supplier to the Client which describes goods or services to be provided by the Supplier and specifies a price for those goods or services.
  • 1.25 “Retainer Engagement” shall mean a Contract which the Quotation describes as a retainer, subscription or fixed term engagement, or which provides for the supply of Works on a recurring basis for a minimum term.
  • 1.26 “Scripts” means any content management software provided by the Supplier under a Contract (where applicable), and includes any enhancement, modification, correction or upgrade relating to the software.
  • 1.27 “Scripts User Manual” means any documentation provided by the Supplier which contains instructions on the use of Scripts.
  • 1.28 “Security Interest” means the security interest in the Goods or their proceeds created by or pursuant to a Contract.
  • 1.29 “Services” means all services described in the Quotation to be provided by the Supplier to the Client in accordance with the Contract and shall include, without limitation, the provision of brand strategy, graphic and communication design, web design and development, marketing, public relations, content, social media, paid media, and resource charges associated with works undertaken.
  • 1.30 “Supplier” shall mean Zephyr Agency Pty Ltd ACN [ACN] and/or any related companies of the Supplier, and/or agents, employees, successors or assignees thereof.
  • 1.31 “Terms and Conditions” means this document and the terms contained herein.
  • 1.32 “Third Party Materials” shall mean materials owned by a third party and incorporated into a Deliverable, including stock imagery, footage, audio, typefaces, illustrations, software, plugins and themes.
  • 1.33 “Working Files” shall mean the Supplier’s editable source files, layered artwork, project files, working drafts, research, wireframes, raw video and photographic footage, and internal documentation.
  • 1.34 “Works” shall mean all Works, Services and/or Deliverables undertaken by the Supplier (including, but not limited to, any advice or recommendations given regarding the Works) and are as described on any Invoice, Quotation, Fees Schedule or any other forms provided by the Supplier to the Client.

2. Interpretation

  • 2.1 Headings are inserted for convenience and shall not affect the construction of this Contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. Words referring to one gender include the other.
  • 2.2 If any provision of this Contract shall be invalid or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  • 2.3 The Supplier operates nationally and supplies the Works to clients throughout Australia. This Contract shall be subject to the laws of the State of Queensland, and the parties submit to the non-exclusive jurisdiction of the courts of that State and of courts competent to hear appeals from them.
  • 2.4 Unless the Quotation states otherwise, the Works are delivered remotely. Any travel, accommodation or attendance in person requested by the Client is a Disbursement and is charged in accordance with clause 11A.
  • 2.5 Where a reference is made to a time of day, that reference is to Australian Eastern Standard Time or Australian Eastern Daylight Time in Brisbane, Queensland, as applicable, unless the Quotation states otherwise.
  • 2.6 The Supplier may sub-contract any part of this Contract. No sub-contractor has any authority to agree to any variation of this Contract on behalf of the Supplier. The Supplier remains responsible to the Client for Works performed by its sub-contractors and shall ensure that its sub-contractors are bound by obligations of confidentiality and intellectual property consistent with this Contract.
  • 2.7 The Supplier’s failure or delay in exercising or enforcing any right it has under this Contract shall not operate as a waiver of the Supplier’s rights to exercise or enforce such rights or any other rights in the future.
  • 2.8 Any waiver of these Terms and Conditions by the Supplier must be made in writing.
  • 2.9 The Client may not assign all or any of the Client’s rights or obligations under this Contract without the written permission of the Supplier, which shall not be unreasonably withheld.
  • 2.10 The Supplier shall not be bound by any clerical error or omission made by the Supplier on any Invoice, Quotation, estimate or other document issued by the Supplier, provided that the Supplier notifies the Client of the error promptly after becoming aware of it.
  • 2.11 The Client shall notify the Supplier of any intention to cease trading and/or of any change in the Client’s name and/or contact details by giving at least seven (7) days notice in writing prior to any such events taking effect.

3. Offer

  • 3.1 The Supplier may offer to enter into a Contract on the terms and conditions contained herein with a Client for the work described therein by:
    • (a) providing the Client with an engagement letter;
    • (b) providing the Client with a Quotation; or
    • (c) providing the Client with any other documentation containing a description of work to be performed by the Supplier and a price for performing the same.
  • 3.2 Where a Quotation is given for the Price then:
    • (a) where Goods, Works and/or Deliverables are required in addition to the Quotation then the Client agrees to pay the additional Price of such Goods, Works and Deliverables; and
    • (b) the Supplier reserves the right to amend the Quotation in the event of circumstances beyond the Supplier’s control, on written notice to the Client and before the Client accepts the Quotation.
  • 3.3 Any offer made by the Supplier to the Client shall be deemed to expire ten (10) Business Days after provision of the same, unless otherwise agreed between the parties.
  • 3.4 Every Quotation shall state whether the Contract is a Project Engagement or a Retainer Engagement. Where the Quotation does not state which applies, the Contract is deemed to be a Project Engagement.

4. Acceptance

  • 4.1 The Client may accept an offer made by the Supplier to enter into a Contract by:
    • (a) providing instructions, written or verbal, to the Supplier for the supply of Goods, Works and/or Deliverables;
    • (b) making payment of any amount requested by the Supplier in the offer;
    • (c) accepting Goods, Works and/or Deliverables supplied by the Supplier; or
    • (d) accepting the offer in writing.
  • 4.2 The Supplier shall supply the Goods and/or Services subject to these Terms and Conditions, and no other terms and conditions of trade relating to the Client and/or any other entity shall override the Supplier’s Terms and Conditions, unless expressly agreed otherwise in writing.
  • 4.3 These Terms and Conditions, along with the Supplier’s Quotations, estimates, order forms and Invoices, or any other documents issued by the Supplier, together form the terms of the Contract and are the full agreement between the parties. To the extent of any inconsistency between these Terms and Conditions and any other document incorporated into the Contract by this clause, these Terms and Conditions shall prevail. To the extent of any inconsistency between the Quotation and any other document incorporated into the Contract by this clause (other than these Terms and Conditions), the Quotation shall prevail. For the avoidance of doubt, an inconsistency between the Quotation and these Terms and Conditions shall be deemed to be an agreement to vary the terms of these Terms and Conditions where these Terms and Conditions include express wording to provide for the parties to agree to alternative terms, and any such variations shall apply for that Contract.
  • 4.4 The Client acknowledges that no employees, contractors, agents and/or representatives of the Supplier are authorised to make any representations, statements, conditions and/or agreements without the prior written consent of a director of the Supplier. The Client expressly agrees that the Supplier will not be bound by any such unauthorised statements.

5. Variation

  • 5.1 The parties agree that the Supplier may elect to vary these Terms and Conditions from time to time by publishing the varied Terms and Conditions on the Supplier’s website.
  • 5.2 Any variation of these Terms and Conditions shall not affect the terms of any Contract on foot at the time of such variation unless expressly agreed between the parties. For the avoidance of doubt, the terms and conditions that apply to any Contract shall be the Terms and Conditions as incorporated into the Contract at the time of its formation, unless otherwise agreed by the parties.
  • 5.3 Either party may request a variation to the scope of the Works. A variation takes effect only when agreed in writing by both parties, including as to any change in the Price and any change to timeframes.

6. Design Concept

  • 6.1 Upon agreement of the Design Specifications of the Design Product, and upon receipt of any Client Materials and any fees payable as set out in the Quotation, the Supplier will commence work to develop the Design Concept.
  • 6.2 The Client shall have ten (10) Business Days, or such other time as the Supplier and the Client agree in writing, from the date of notification of completion of the Design Concept from the Supplier, to review and request in writing from the Supplier revisions to the Design Concept. The Supplier shall use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with, the Design Specifications.
  • 6.3 If the Client chooses to alter the Design Specifications in any material way, then any work required to give effect to that alteration which would otherwise have been outside the scope of the Supplier’s obligations under the Contract shall be Additional Services.
  • 6.4 If the Client does not make any request for revisions by the end of ten (10) Business Days from the date of written notice of completion of the Design Concept from the Supplier, or upon completion and implementation of such requests as the Client and the Supplier have mutually agreed under clause 6.3, then the Design Concept shall be deemed to be accepted by the Client.
  • 6.5 After the Design Concept has been accepted by the Client, any further requests from the Client for revisions or alterations will be subject to further charges based on the amount of time required for the Supplier to perform those variations at the Supplier’s standard rates set out in the Fees Schedule or as mutually agreed in writing.
  • 6.6 Unless the Quotation states otherwise, two (2) rounds of consolidated revision are included for each Deliverable. A round of revision means one set of consolidated written feedback provided by the Client’s nominated contact. A change of creative direction after a Design Concept has been accepted is not a revision and shall be Additional Services.

7. Design Product

  • 7.1 The Client will provide the Supplier with any Client Materials required by the Design Specifications in an electronic file format specified by and accessible to the Supplier and/or as otherwise specified in the Design Specifications. Any services required to convert or input Client Materials not set forth in the Design Specifications shall be charged as Additional Services.
  • 7.2 Upon acceptance of the Design Concept under clause 6, and provision of any required Client Materials, the Supplier will commence work to develop the Design Product. The Supplier will notify the Client of the URL or other address of any Design Product comprising a web site. The Supplier may use any combination of technology as the Supplier, in consultation with the Client, deems appropriate to develop any Design Product comprising a web site.
  • 7.3 The Client will have ten (10) Business Days, or such other time as the Supplier and the Client agree in writing, from the date of notification of completion of the Design Product from the Supplier, to review and request in writing from the Supplier revisions to the Design Product. The Supplier shall use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with, the Design Specifications.
  • 7.4 If the Client requires any revisions to the Design Product that depart in any material respect from the Design Specifications, then any work required to give effect to those revisions which would otherwise have been outside the scope of the Supplier’s obligations under the Contract shall be Additional Services.
  • 7.5 If the Client has not made any request for revisions by the end of ten (10) Business Days from the date of written notice of completion of the Design Product from the Supplier, or by such other time as agreed by the Client and the Supplier in writing, or upon completion of implementation of such requests as were mutually agreed under clause 7.4, then the Design Product shall be deemed to be accepted by the Client.
  • 7.6 After the Design Product has been accepted by the Client, any further requests from the Client for revisions or alterations will be subject to further charges based on the amount of time required for the Supplier to perform those variations at the Supplier’s standard rates set out in the Fees Schedule or as mutually agreed in writing, in addition to the Price.
  • 7.7 Upon acceptance of the Design Product and payment of the Price in full, the Supplier shall transfer any Design Product comprising a web site to the computer system owned and operated by the Client or to the Client’s designated third party contractor.
  • 7.8 The Client acknowledges that if the Supplier registers a domain for the Client, the domain cannot be transferred until the expiry of six months from the date of the registration.
  • 7.9 Unless the Quotation states otherwise, a Deliverable comprising a web site is tested against current versions of major browsers as at the date of delivery, and does not include ongoing maintenance, security patching, hosting, backups, plugin or licence renewals, or support. The Supplier is not responsible for the performance, availability, security or terms of any third party hosting, platform, theme, plugin or integration.

8. Retainer Engagements

  • 8.1 Where the Quotation describes the Contract as a Retainer Engagement, the additional terms of this clause 8 will apply.
  • 8.2 The Supplier may elect to review the scope of the Services and the Price as set out in the Quotation, with that right arising on the day that is three (3) months after the commencement date and expiring on the day that is four (4) months after the commencement date.
  • 8.3 If the Supplier elects to exercise its right to review, it may amend such terms of the Quotation as it deems commercially reasonable in the circumstances, including but not limited to any changes in the Client’s or the Supplier’s circumstances since the Quotation was issued, to create a new quotation (New Quotation), and must provide a copy of the New Quotation to the Client before the end of the review period described in clause 8.2.
  • 8.4 Within ten (10) Business Days of receiving the New Quotation, the Client must either accept or reject the New Quotation by notice to the Supplier. For the avoidance of doubt, it will be deemed to be a rejection of the New Quotation if the Client fails to provide notice of its decision to the Supplier within the specified timeframe, and that notice will be deemed to have been received on the eleventh day after the day the Client received the New Quotation.
  • 8.5 The parties expressly agree that where the Supplier issues a New Quotation and the Client rejects it, the Supplier may terminate the Contract by written notice to the Client at any time within thirty (30) days of receipt of the notice of rejection, and such termination shall be on the following terms:
    • (a) the Contract will terminate thirty (30) days after the date of the notice; and
    • (b) the parties expressly agree that the Supplier’s election to terminate under this clause shall not be construed as a breach or a repudiation of the Contract and shall not give rise to any claim for damages in relation to that termination, except to the extent that either party has failed to comply with the terms of this clause 8.
  • 8.6 Where the Client rejects a New Quotation under clause 8.4, the Client may terminate the Contract by written notice given within ten (10) Business Days of that rejection, and the Client shall not be liable for any amount under clause 15.5 in respect of that termination.
  • 8.7 Retainer fees are payable in advance and are payable in full regardless of the volume of work requested by the Client in the relevant period. Where a Retainer Engagement is expressed as a number of hours or a defined scope per period, any unused hours or unused scope do not accrue and are not carried forward, refunded or credited, unless the Quotation states otherwise.

9. Supplier’s Obligations

  • 9.1 The Supplier agrees to provide the Goods and/or Services in exchange for the Client agreeing to pay the Price.
  • 9.2 The Supplier warrants:
    • (a) it has the right to grant the licences and assignments in respect of the Deliverables under this Contract to the Client without violating any rights of any third party;
    • (b) the Deliverables will, in all substantial respects, conform with the Design Specifications, or as otherwise agreed in writing by the Supplier and the Client;
    • (c) it will use reasonable means to ensure the Deliverables comprising a website do not contain any known virus or computer software code, routines or devices (other than as provided for in the Design Specifications) designed to disable, damage or impair the Deliverables, or other software or data; and
    • (d) any services provided under this Contract shall be performed with due care and skill and in a professional and workmanlike manner.
  • 9.3 The Supplier’s warranties in clause 9.2 will not apply where the Client has used the Deliverables in a manner, or for a purpose, not reasonably contemplated or not authorised by the Supplier, or in combination with other goods not specifically approved by the Supplier, or where the Client has made any adaptations, extensions or modifications to the Deliverables.
  • 9.4 Subject to clause 25A, and to the extent permissible at law, the Client’s sole remedy in the event of a breach of a warranty in clause 9.2 is, at the Supplier’s option, replacement or re-supply of the defective Deliverables or refund of the fee paid for the Deliverables.
  • 9.5 The Supplier will maintain, for the duration of any Contract, current policies of professional indemnity and public liability insurance covering its activities throughout Australia, and will provide certificates of currency on reasonable request.

10. Client’s Obligations

  • 10.1 The Client agrees to pay the Price in exchange for the Supplier agreeing to provide the Goods and/or Services.
  • 10.2 The Client acknowledges that:
    • (a) the Supplier is in the business of creative, marketing and design services, and that the Supplier shall have the right to provide services to third parties which are the same as or similar to the services the Supplier provides to the Client, and to use or otherwise exploit any Design Materials in providing such services;
    • (b) it is responsible for any faults which occur in the Client’s computer or communication equipment;
    • (c) any Deliverables comprising a web site are not warranted to operate on computer systems and networks which do not meet any minimum specifications set out in the relevant Design Specifications; and
    • (d) the Supplier reserves all rights in the Design Materials, Third Party Materials and Working Files which are not expressly granted to the Client under clause 17 or clause 18.
  • 10.3 The Client agrees:
    • (a) to be responsible for the use and management of Scripts;
    • (b) not to copy, alter, modify or reproduce Scripts;
    • (c) not to sell, transfer, publish, disclose, display or otherwise make available Scripts to others;
    • (d) not to reverse engineer, decompile, disassemble, vary, modify, adapt, create derivative works from, or otherwise attempt to derive the source code of any Design Product comprising a web site, or Scripts;
    • (e) to give reasonable consideration to any request by the Supplier to place the Supplier’s proprietary notices on the Deliverables, including the Supplier’s attribution and hypertext links to the Supplier’s web sites;
    • (f) to acquire any authorisations necessary for hypertext links to third party websites in relation to Deliverables comprising a web site, and to be responsible for the accuracy of the Client Materials; and
    • (g) to indemnify the Supplier against all losses, costs, expenses, demands or liabilities (including all legal costs and expenses) incurred by the Supplier relating to any claim that the provision of the Client Materials, or the use of the Client Materials by the Supplier, infringes the Intellectual Property rights of any third party, or arising from any breach of the Client’s obligations under this Contract or any wilful, unlawful or negligent act or omission by the Client, save to the extent that the loss arises from the Supplier’s own negligence, fraud or wilful misconduct.
  • 10.4 The Client must provide Client Materials that do not contain obscene, threatening or malicious content and do not infringe any law or third party right, or which may otherwise expose the Supplier to civil or criminal liability. Provision of any Client Materials which do not satisfy this clause shall be deemed to be a material breach of this Contract.
  • 10.5 The Client warrants that, to the best of the Client’s knowledge, the Client owns and/or is validly licensed to provide under this Contract all copyright and all other Intellectual Property rights in and to the Client Materials, and that the Supplier’s use of the Client Materials will not infringe the Intellectual Property or other rights of any third party, or breach any applicable law, statute or regulation.
  • 10.6 Any provision of maintenance which is not covered in the Design Specifications shall be paid for by the Client as Additional Services at the rate set out in the Fees Schedule.
  • 10.7 The parties agree that any maintenance or ongoing support provided by the Supplier to the Client shall be Additional Services where those services are not expressly provided for in the Design Specifications, and the Client shall be liable to pay the Supplier an additional amount for those Additional Services calculated using the rates set out in the Fees Schedule.
  • 10.8 The Client must nominate a single point of contact with authority to provide instructions, feedback and approvals on the Client’s behalf, and must provide feedback and approvals within the timeframes set out in the Quotation or, where none is stated, within five (5) Business Days of a request.
  • 10.9 The Client must provide the Supplier with the access it reasonably requires to the Client’s websites, content management systems, hosting, domain registrar, advertising accounts, analytics, social media accounts and email marketing platforms.
  • 10.10 The Client warrants that all information and claims it provides to the Supplier are accurate, current and not misleading or deceptive, and that its products, services and marketing comply with all applicable laws, including the Competition and Consumer Act 2010 (Cth) and any industry code applicable to the Client.
  • 10.11 Where the Client does not comply with its obligations under this clause 10, the Supplier is not responsible for any resulting delay, additional cost, missed deadline, missed publication date or lost media opportunity, and clause 11.6 applies.

10A. Approvals and Proofing

  • 10A.1 The Client is responsible for checking and approving all Deliverables before they are published, printed, distributed, broadcast or otherwise released.
  • 10A.2 Approval must be given in writing. An instruction to proceed given by email, project management platform or other written channel by the Client’s nominated contact constitutes approval.
  • 10A.3 The Client is responsible for verifying the accuracy of all content, including copy, spelling, pricing, dates, contact details, product claims, disclaimers, terms, dimensions and specifications.
  • 10A.4 Once the Client has approved a Deliverable, the Supplier is not liable for any error, omission or loss in or arising from that Deliverable, including the cost of reprinting, re-running, re-mailing or replacing published material.
  • 10A.5 Where the Client requires legal, regulatory, financial or industry specific review of a Deliverable, the Client is responsible for obtaining that review at its own cost before giving approval.
  • 10A.6 Colour reproduction varies between screens, printing processes and substrates. The Supplier will use reasonable efforts to achieve consistency but does not warrant exact colour matching in printed or manufactured output.

11. Price

  • 11.1 The Price of the Goods, Works and/or Deliverables shall be either:
    • (a) as stipulated in the Supplier’s Quotation and agreement; or
    • (b) in respect of Goods, Works or Deliverables provided by the Supplier which have not been set pursuant to clause 11.1(a), or otherwise agreed or set out in the Fees Schedule, a reasonable price for such Goods, Works and/or Deliverables.
  • 11.2 Unless otherwise agreed:
    • (a) no allowance has been made in the Price for the deduction of retentions; and
    • (b) the Price is exclusive of GST, and any other applicable taxes, duties, charges and costs payable by the Client in addition to the Price.
  • 11.3 The Prices quoted by the Supplier shall only apply to the specific Goods, Works or Deliverables as itemised or specified in the Quotation. Any additional Goods, Works or Deliverables outside the scope of those itemised in the Quotation, requested by the Client, will be subject to a variation and will be charged at the Supplier’s standard prices and/or rates prevailing at the time of supply. For the avoidance of doubt, this includes Working Files created by the Supplier in the design and finalisation of the Goods, Works or Deliverables, which will only be released upon payment of an additional fee as set out in the Fees Schedule.
  • 11.4 Suspension and cancellation:
    • (a) Where the Works are suspended or cancelled, by the Supplier or the Client, the Supplier will charge for those Works completed, or partially completed, as at the date of suspension or cancellation of the Works. Such charge will be based on the hours expended and charged at the hourly rate as set out in the Fees Schedule.
    • (b) Where the Contract is a Project Engagement, then in addition to the amount payable under clause 11.4(a), where the Client suspends or cancels the Works, or where the Supplier suspends or cancels the Works as a result of the Client’s breach of the Contract, the Client must pay a cancellation fee equal to thirty percent (30%) plus GST of that part of the Price which relates to Works described in the Quotation but not performed as at the date of suspension or cancellation.
    • (c) The Client must also pay all Disbursements and third party costs incurred or committed by the Supplier in connection with the Works prior to the date of suspension or cancellation, which the Supplier is unable to cancel or recover.
    • (d) Where the Client resumes the Works on the terms of the original Quotation within three (3) months of the date of suspension or cancellation, the cancellation fee paid under clause 11.4(b) will be credited in full against the Price of those resumed Works. Such credit:
      • (i) applies only to the Works described in the original Quotation, and does not apply to Additional Services or to any new or revised Quotation;
      • (ii) is not redeemable for cash and is not transferable; and
      • (iii) lapses at the end of that three (3) month period, after which the cancellation fee is retained by the Supplier in full.
    • (e) A suspension of the Works at the Client’s request which continues for more than thirty (30) days is deemed to be a cancellation of the Works for the purposes of this clause, unless the parties otherwise agree in writing.
    • (f) The parties acknowledge that the Supplier reserves personnel, capacity and delivery windows, and declines other engagements, in order to perform the Works within the agreed timeframes. The cancellation fee in clause 11.4(b) is a genuine pre-estimate of the loss the Supplier will suffer as a result of the suspension or cancellation and is not a penalty.
    • (g) Where the Quotation specifies a cancellation fee different to the fee in clause 11.4(b), the fee specified in the Quotation applies in its place.
    • (h) This clause 11.4 does not apply to a Retainer Engagement. Cancellation of a Retainer Engagement is dealt with under clause 15.5.
    • (i) Clause 11.4(d) applies despite clause 15.4.
  • 11.5 If the Supplier has registered a domain for the Client, the Supplier may automatically renew the domain within thirty (30) days from the expiration of the domain registration (at its discretion), unless the Client provides the Supplier with written notice not to renew the domain at least fourteen (14) days before the expiration of the domain.
  • 11.6 The Supplier reserves the right to re-establish the Price where variables occur which increase the time required to deliver the Works, including where the Client changes the scope of the Works, where the Works are more complex than initially anticipated, where the Client provides further documentation or information which requires further review or consideration, where additional attendances are required outside the initial scope, or where there is undue delay on the part of the Client or of any third party required to complete the Works. The Supplier will notify the Client in writing before any re-established Price takes effect.
  • 11.7 The Supplier may increase the rates set out in the Fees Schedule on thirty (30) days written notice, and no more than once in any twelve (12) month period. Where the Client does not accept the increase, the Client may terminate the Contract by written notice given before the increase takes effect, without further liability other than for Works performed and Disbursements committed up to the date of termination.
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11A. Disbursements, Third Party Costs and Ad Spend

  • 11A.1 Disbursements and third party costs are not included in the Price unless the Quotation expressly states otherwise. Such costs include, without limitation, Ad Spend, printing and production, photography and videography, stock imagery, footage and audio, typefaces and font licences, software and plugin licences, domain registration, hosting, media monitoring, event costs, freight, courier, travel and accommodation.
  • 11A.2 The Supplier will obtain the Client’s written approval before incurring any individual Disbursement above [$500], or before incurring Disbursements in aggregate above the amount set out in the Quotation.
  • 11A.3 Ad Spend must be paid to the Supplier in advance, or paid by the Client directly to the relevant platform using the Client’s own payment method. The Supplier is not obliged to fund Ad Spend on the Client’s behalf and may pause or cease campaigns where Ad Spend has not been received.
  • 11A.4 Where the Supplier incurs Disbursements on the Client’s behalf, the Supplier may apply a handling fee of [10%] to those costs, as disclosed in the Quotation.
  • 11A.5 Licences for Third Party Materials are obtained on the terms made available by the relevant licensor. The Client is responsible for any ongoing, renewal, extension or expanded use licence fees, and for complying with the terms of those licences.

12. Additional Services

  • 12.1 Any request for Additional Services from the Client to the Supplier shall constitute a request to vary the terms of the Contract to vary the scope of work to include those Additional Services in accordance with this clause.
  • 12.2 Any fee for Additional Services shall be calculated based on the amount of time required for the Supplier to perform the work comprising the Additional Services at the rate specified in the Fees Schedule for that type of work.
  • 12.3 In the event that there is no rate specified in the Fees Schedule for a particular kind of work, and the type of work comprising the Additional Services does not otherwise fall within the scope of any of the types of work specified in the Fees Schedule, then the rate for those Additional Services shall be One Hundred and Ninety-Five Dollars per hour ($195.00 per hour) plus GST.
  • 12.4 For Additional Services, time will be charged in fifteen (15) minute intervals, with fifteen (15) minutes being the minimum interval recorded for professional services. For example, the time charged for an attendance of up to fifteen (15) minutes will be one unit, and the time charged for an attendance of between fifteen (15) and thirty (30) minutes will be two (2) units.

13. Payment

  • 13.1 All fees payable under this Contract for Goods or Services shall be payable in advance, unless otherwise agreed between the parties or where the fees relate to Additional Services. For the avoidance of doubt:
    • (a) the Supplier’s obligations under these Terms and Conditions, including but not limited to its obligation to provide Goods and/or Services, are conditional upon the Client making payment in advance; and
    • (b) where the Supplier has specified a timeframe for doing any action or task, that timeframe is conditional upon payment being received when due, and the parties agree that the specified timeframe shall be extended by the amount of time that the payment was due but not made.
  • 13.2 Unless the Supplier otherwise agrees in writing, payment of any Invoice shall be due seven (7) days after an Invoice is issued for the Price.
  • 13.3 Unless the parties agree otherwise, payment must be made by way of irreversible bank transfer, cash or cheque.
  • 13.4 The Supplier may submit a detailed payment claim at intervals of not less than one (1) month for work performed up to the end of each month. The value of Goods, Works and/or Deliverables may include the value of authorised variations.
  • 13.5 All payments by the Client must be made in full and without any retentions, deductions, right of set-off or counterclaim. The Client agrees that any monies that the Supplier may owe the Client on any account whatsoever may, at the Supplier’s option, be set off against any payments due by the Client to the Supplier.
  • 13.6 The Supplier has the right to apply any payment received from the Client to any outstanding account of the Client at its discretion. Should the Client have a number of accounts, then the Supplier is given the right to combine any account and also to set off any amount between such accounts.
  • 13.7 Should the Client dispute any Invoice of the Supplier, the Client shall remain liable for payment to the Supplier of any outstanding Invoices not subject to any dispute raised by the Client. Payment for any Invoice not related to a dispute shall remain due on the date noted on the Supplier’s Invoice. Nothing in this clause shall be construed as waiving, suspending or otherwise modifying the Client’s obligation to pay a validly issued Invoice.
  • 13.8 Where an Invoice remains unpaid for more than fourteen (14) days after its due date, the Supplier may give the Client seven (7) days written notice of its intention to suspend. If the outstanding amount is not paid within that period, the Supplier may suspend all or part of the Works, withhold Deliverables, pause campaigns and suspend access to work in progress, without liability to the Client. The Supplier will resume the Works promptly once all outstanding amounts are paid.

14. Default

  • 14.1 A Default Event occurs if:
    • (a) any amounts are unpaid after they fall due;
    • (b) the Client is unable to pay its debts as they fall due;
    • (c) the Client ceases or suspends conduct of its business, or threatens to do so;
    • (d) the Client’s financial circumstances change in a way which, in the reasonable opinion of the Supplier, will affect the Client’s ability to comply with its obligations under this Contract;
    • (e) an administrator, liquidator, provisional liquidator, receiver and/or manager or any other form of insolvency administrator or controller is appointed to the Client or over all or part of the Client’s assets;
    • (f) the Client goes into bankruptcy, dies, or commits any act of bankruptcy or, if the Client is a partnership, the partnership is dissolved; or
    • (g) execution is levied on any of the Client’s assets.
  • 14.2 Without prejudice to any other rights or remedies that the Supplier may have against the Client, where the Default Event relates to a failure to pay any amount owing by the Client, the Client agrees to pay on demand:
    • (a) all reasonable costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by the Supplier in recovering any amounts payable by the Client to the Supplier;
    • (b) interest on the amount outstanding at the end of each month in which the Client’s account is in arrears at the rate of two percent (2%) per month, with such rate applying after as well as before any judgment; and
    • (c) a monthly administration fee of twenty five dollars ($25) by way of damages, payable on the last day of each month in which the Client’s account is in default.
  • 14.3 In the event the Client’s payment to the Supplier is dishonoured for any reason, the Client shall be liable for any dishonour fees incurred by the Supplier.

15. Breach and Termination

  • 15.1 Subject to clauses 15.5 and 15.7, either party may terminate any Contract on ninety (90) days prior written notice to the other party at any time.
  • 15.2 If a Default Event occurs:
    • (a) the Supplier may, at its discretion, suspend performance of its obligations under the Contract until such time as the Default Event is rectified, or terminate the supply of Goods and/or Services;
    • (b) all unpaid amounts become immediately due and payable; and
    • (c) the Supplier may immediately terminate the Contract at any time before the Default Event is rectified, by written notice to the Client.
  • 15.3 Any maintenance or month to month services provided by the Supplier to the Client, where no fixed term agreement is in place, may be cancelled by the Client at any time upon providing thirty (30) days written notice to the Supplier.
  • 15.4 Subject to clause 11.4(d), all products and services which are pre-paid by the Client are non-refundable to the extent that they represent Works already performed, resources reserved and Disbursements committed. If the Client informs the Supplier that it no longer requires the product or service, the Supplier will provide the Client with a credit to be used towards other products and services provided by the Supplier. For the avoidance of doubt, such credit shall not be redeemable for cash.
  • 15.5 Where the Contract is a Retainer Engagement and the Client cancels the Contract before the end of the minimum term set out in the Quotation, the Client continues to be liable for payment of the fees for the remainder of that minimum term. For the avoidance of doubt, clause 11.4(b) does not apply to a Retainer Engagement.
  • 15.6 Either party may immediately terminate the Contract by written notice to the other where the other party commits a serious or persistent breach of the Contract which is incapable of remedy, or fails to remedy a breach within fourteen (14) days of receiving written notice identifying the breach and requiring it to be remedied.
  • 15.7 Where the Contract specifies a minimum term, a notice under clause 15.1 may not take effect before the end of that minimum term unless the parties agree otherwise in writing.
  • 15.8 The parties acknowledge that the Supplier’s rights under this clause may be subject to restrictions pursuant to section 451E and Part 5.1 of the Corporations Act 2001 (Cth).

16. Effect of  Termination

  • 16.1 If any Contract is terminated by the Client or the Supplier under clause 15, that Contract will terminate and the following will apply:
    • (a) any licence granted under or pursuant to that Contract or these Terms and Conditions in respect of Design Materials, Third Party Materials or Scripts will end, and the Client will not be authorised to use those materials after termination of that Contract, except to the extent that the Client has paid the Price in full and clause 17.4 applies;
    • (b) the Client shall be liable to pay the Supplier the full cost of the Works, Goods and/or Deliverables provided by the Supplier, including any Goods, Works and/or Deliverables ordered and/or purchased, up to the date of termination, together with any amount payable under clause 11.4 or clause 15.5;
    • (c) the Client will pay the Supplier for any unpaid fees arising from the Client’s use of the Deliverables up to the date of termination;
    • (d) the Client will return to the Supplier, on the Supplier’s demand, any information to which this clause relates, which includes but is not limited to any manuals, specifications, designs or other information relating to the business of the Supplier or the services or products provided under these Terms and Conditions and/or any Contract;
    • (e) termination of any Contract shall be without prejudice to the rights of any party which have accrued prior to, or which arise in connection with, such termination; and
    • (f) the provisions of these Terms and Conditions or any Contract intended to apply after termination shall continue to apply.
  • 16.2 The Supplier will, on request and at the Client’s cost, provide reasonable transition assistance, including transferring account access, exporting data and providing final approved Deliverables, charged at the rates set out in the Fees Schedule.
  • 16.3 Subject to clause 25A, the Supplier shall not be liable for any loss or damage arising from any election to terminate the Contract pursuant to clause 15.2.
  • 16.4 Clauses 10.3(g), 11, 11A, 13, 14, 16, 17, 18, 19, 20, 21, 21A, 21B, 21C, 22, 23 and 25A survive termination of a Contract.

17. Intellectual Property Rights

  • 17.1 The Client Materials which the Client provides to the Supplier in order for the Supplier to carry out its obligations under a Contract are owned by the Client. The Client grants to the Supplier a non-exclusive licence to modify, reproduce, create derivative works from, and otherwise use such Intellectual Property to provide any services or products in connection with the Contract.
  • 17.2 The Supplier retains ownership of all Design Materials, being all pre-existing and independently developed Intellectual Property, methodologies, frameworks, systems, tools, templates, know-how and materials developed or owned by the Supplier prior to, or independently of, a Contract. Nothing in these Terms and Conditions restricts the Supplier from using the skills, techniques, methodologies, learnings and general know-how developed during an engagement in its other engagements or business activities.
  • 17.3 Until the Supplier has received payment in full of the Price and all other amounts payable under a Contract, all Intellectual Property in the Deliverables remains the sole and exclusive property of the Supplier, and any use of the Deliverables by the Client is unlicensed.
  • 17.4 Upon receipt by the Supplier of payment in full of the Price and all other amounts payable under a Contract, the Supplier assigns to the Client all Intellectual Property in the Deliverables, other than in the Design Materials, the Third Party Materials and the Working Files.
  • 17.5 To the extent that a Deliverable incorporates Design Materials, the Supplier grants the Client, upon payment in full, a perpetual, non-exclusive, royalty free, non-transferable licence to use those Design Materials solely as incorporated in the Deliverable and solely for the Client’s own business purposes. That licence does not permit the Client to commercialise, sell, sublicense or assign the Design Materials separately from the Deliverable, to provide them to third parties other than professional advisers and suppliers acting for the Client, or to represent them as its own proprietary material.
  • 17.6 Third Party Materials are licensed, not assigned. The Client’s rights in Third Party Materials are limited to the terms of the relevant third party licence.
  • 17.7 Working Files remain the property of the Supplier and are not supplied to the Client. The Supplier may agree to release Working Files on written request, subject to payment of a release fee as set out in the Fees Schedule. The Client is not entitled to any raw video or photographic footage produced by the Supplier and the Supplier retains ownership of such footage at all times.
  • 17.8 Concepts, drafts, designs, names, strategies and other work presented to but not selected or approved by the Client remain the property of the Supplier, and the Client must not use them.
  • 17.9 The Supplier is not obliged to conduct trade mark, business name, domain or other availability or clearance searches. The Client is responsible for obtaining its own advice on the availability, registrability and use of any name, mark, logo or tagline before adopting it.
  • 17.10 Each party consents, and will use reasonable efforts to procure the consent of its personnel, to any act or omission by the other party that would otherwise infringe their moral rights in the Deliverables.
  • 17.11 The Supplier will have no liability to the Client for any claim of infringement based on or related to:
    • (a) the use of a superseded or altered release of Scripts, if the infringement would have been avoided by the use of a current or unaltered release of Scripts which the Supplier provided to the Client;
    • (b) the unauthorised modification of Scripts; or
    • (c) the use of Scripts other than in accordance with the Scripts User Manual.
  • 17.12 This clause 17 shall survive the expiry or termination of the Contract.

18. Software Licence

  • 18.1 Where Scripts are included in the Deliverables, the Supplier grants to the Client, and the Client accepts, a non-exclusive, non-transferable licence to use Scripts solely in connection with the Design Product for the term specified. This licence may be renewed for any subsequent period where both the Supplier and the Client expressly agree. In consideration of the licence to use Scripts, the Client agrees to pay the Supplier the fees specified in the Fees Schedule.
  • 18.2 The Client acknowledges that any licence granted by the Supplier under this clause is granted subject to consent from any third party licensors (if any).

19. Personal Property Securities Act 2009

  • 19.1 The Client acknowledges and agrees that the Contract creates a Security Interest in the Goods, Works and/or Deliverables and, for the avoidance of doubt, in the proceeds of the sale of the Goods, Works and/or Deliverables, in favour of the Supplier.
  • 19.2 The Client will, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Security Interest is a perfected purchase money security interest.
  • 19.3 Until payment of the Price has been made in full, the Client acknowledges and agrees that in relation to Goods, Works and/or Deliverables that are inventory, the Client will not allow any non-purchase money security interest to arise in respect of the Goods, Works and/or Deliverables unless the Supplier has perfected its purchase money security interest prior to the Client taking possession of the Goods, Works and/or Deliverables.

20. Security

  • 20.1 Where the Client or any Guarantor has, by separate written instrument, charged its interest in land in favour of the Supplier to secure amounts owing under a Contract, the Client and any Guarantor consent to the Supplier lodging a caveat over that land to protect the Supplier’s interest while any amount remains in default.
  • 20.2 Should the Supplier proceed in accordance with clause 20.1, the Client and/or Guarantor shall indemnify the Supplier against the Supplier’s reasonable costs and disbursements, including legal costs on a solicitor and own client basis.

21. Disclaimer and Limitation of  Liability

  • 21.1 Subject to clause 25A, the Supplier disclaims all warranties and conditions, whether express, implied or statutory, other than those identified expressly in this Contract, including but not limited to warranties of title, non-infringement, merchantability and fitness for a particular purpose, to the extent that it is able to do so at law.
  • 21.2 The Supplier will not be liable for any loss or damage suffered by the Client as a result of any failure or defect in any services or products provided by third party vendors, developers or consultants referred to the Client by the Supplier, unless such third party products or services are provided under written agreement between the Client and the Supplier, and then only to the extent expressly provided in those agreements.
  • 21.3 Subject to clause 25A, under no circumstances (including but not limited to negligence) shall the Supplier, or any of the Supplier’s related companies, officers, employees, partners, agents or suppliers, be liable to the Client for any indirect, incidental, special, consequential or punitive damages (including loss of use, loss of data, loss of profits, loss of revenue, loss of anticipated savings or loss of goodwill) that result from the use of, or the inability to use, or otherwise relate to the Deliverables.
  • 21.4 Subject to clause 25A, if the Supplier is liable to the Client at law for any loss or damage, the Client expressly agrees that the total aggregate liability of the Supplier, and of the Supplier’s related companies, officers, employees, partners, agents and suppliers, to the Client or anyone else using the Goods, Works or Deliverables the Supplier provides to the Client, for all damages, losses and causes of action (whether in contract, tort including negligence, under statute or otherwise) shall not exceed the total amount paid by the Client to the Supplier under the relevant Contract in the twelve (12) months preceding the event giving rise to the claim. For the avoidance of doubt, Ad Spend and Disbursements are not amounts paid for the Works for the purposes of this clause.
  • 21.5 Where liability cannot be excluded but can be limited, the Supplier’s liability is limited, at the Supplier’s option, to re-supplying the relevant Works or to paying the cost of having them re-supplied.

 21A. No Guarantee of  Results

  • 21A.1 The Client acknowledges that marketing, creative, public relations and advertising outcomes depend on many factors outside the Supplier’s control, including market conditions, competitor activity, platform behaviour, editorial decisions, and the Client’s own products, pricing, sales process and operations. The Supplier does not warrant or guarantee any particular commercial result, including sales, revenue, leads, enquiries, reach, ranking, coverage, engagement or return on investment, and no such guarantee is given by any estimate, projection, forecast or example of past performance.
  • 21A.2 Public relations and earned media. Media coverage cannot be guaranteed. Editorial decisions, including whether to publish, the timing of publication, the angle taken and the tone of any coverage, rest solely with the relevant publisher or journalist. The Supplier is not responsible for the content, accuracy, tone or consequences of any third party coverage, or for any commentary or response to it.
  • 21A.3 Paid media and advertising. Advertising platforms set their own policies, pricing, auction dynamics, approval processes and account requirements, and may change them at any time. The Supplier is not responsible for platform account suspensions, advertisement disapprovals, delivery issues, price changes or algorithm changes. Where an advertising or analytics account is created in the Client’s name, that account remains the property of the Client. Where the Supplier creates an account under its own business manager for the Client’s benefit, the parties will agree in writing what happens to that account on termination.
  • 21A.4 Search and organic performance. Search engines, social platforms and directories control their own ranking and distribution. The Supplier does not warrant any particular ranking, reach, impression volume, engagement rate or position, and is not responsible for changes resulting from algorithm updates.
  • 21A.5 Social media. Where the Supplier is given access to the Client’s social media accounts, those accounts remain the property of the Client. The Client is responsible for community management outside the agreed scope, and for its own responses to comments, reviews and direct messages, unless the Quotation states otherwise.
  • 21A.6 Print, production and events. The Supplier is not the manufacturer or printer of physical goods. Production timelines, stock availability, finishing and delivery are controlled by third party suppliers, and the Supplier’s liability in relation to production is limited to the reasonable management of those suppliers. Where the Works include event management, supplier bookings, venue commitments, minimum spends and cancellation fees are governed by the terms of the relevant supplier, and the Client is responsible for those amounts.

21B. Portfolio and Promotional Use

  • 21B.1 The Client grants the Supplier a perpetual, non-exclusive, royalty free licence to reproduce, display and describe the Deliverables and the Client’s name and logo for the purposes of the Supplier’s own portfolio, website, social media, case studies, capability statements, new business materials and award submissions.
  • 21B.2 The Supplier will not disclose the Client’s confidential information in exercising this right, and will not publish work that has not yet been publicly released by the Client without the Client’s prior written approval.
  • 21B.3 The Client may withdraw this licence in respect of specific material by written notice, and the Supplier will remove the relevant material from its owned channels within a reasonable time, but is not required to recall or alter material already printed, published or submitted.

21C. Confidentiality and Non-Solicitation

  • 21C.1 Neither party may divulge the confidential information of the other party, including business strategies, client and customer data, financial information, pricing, trade secrets, proprietary methods and unreleased campaigns, to any third party during or after the term of a Contract. Confidential information does not include information that is or becomes public other than through a breach of this clause, was already known to the receiving party, is independently developed, or is required to be disclosed by law.
  • 21C.2 During the term of a Contract and for twelve (12) months after its termination, neither party may, without the other party’s prior written consent, directly or indirectly solicit for employment or engagement any employee, contractor or freelancer of the other party who has been involved in the provision of the Works.
  • 21C.3 Clause 21C.2 does not prevent a party from engaging a person who responds to a general public advertisement not specifically directed at the other party’s personnel, or who approaches that party on their own initiative.
  • 21C.4 Where a party breaches clause 21C.2, that party must pay the other party an amount equal to the reasonable cost of recruiting and onboarding a replacement, which the parties agree is a genuine pre-estimate of that loss and is capped at thirty percent (30%) of the relevant person’s first twelve (12) months total remuneration.

22. Disputes

  • 22.1 If a dispute arises out of or relates to a Contract, a party may not commence court proceedings relating to the dispute unless it has complied with this clause, except where that party seeks urgent interlocutory relief, or where the dispute concerns an amount owing to the Supplier which the Client has not disputed in accordance with clause 13.7.
  • 22.2 The party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties must endeavour in good faith to resolve the dispute within fourteen (14) days.
  • 22.3 If the dispute is not resolved within that period, the parties must refer the dispute to mediation administered by the Resolution Institute, in accordance with its mediation rules. If the parties cannot agree on a mediator within seven (7) days, the chief executive officer of the Resolution Institute or their nominee will select the mediator and determine the mediator’s remuneration.
  • 22.4 The mediation may be conducted by video conference, or in the capital city nearest to the Client’s principal place of business, as the parties agree. The costs of the mediation will be borne equally by the parties.
  • 22.5 If the mediation is not completed within twenty eight (28) days of referral to a mediator, either party may commence court proceedings relating to the dispute.

23. Privacy and Data

  • 23.1 Each party will comply with the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) in connection with the Works.
  • 23.2 The Client warrants that it has obtained all necessary consents for the use of any personal information, contact list, database or customer data it provides to the Supplier, including consent to receive commercial electronic messages, and that its use of that data complies with all applicable laws. The Client is responsible for maintaining its own privacy policy, collection notices, unsubscribe processes and consent records.
  • 23.3 The Supplier will use Client data only for the purposes of providing the Works and will take reasonable steps to protect it. The Supplier may use third party software and platforms in providing the Works, and data may be stored or processed by those providers, including outside Australia.
  • 23.4 The Client agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Supplier.
  • 23.5 The Client agrees that the Supplier may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
    • (a) to assess an application by the Client;
    • (b) to notify other credit providers of a default by the Client;
    • (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
    • (d) to assess the credit worthiness of the Client.
  • 23.6 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
  • 23.7 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes, and for such other purposes as shall be agreed between the Client and the Supplier or required by law from time to time:
    • (a) provision of Goods;
    • (b) marketing of Goods by the Supplier, its agents or distributors in relation to the Goods;
    • (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods;
    • (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and
    • (e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
  • 23.8 The Supplier may give information about the Client to a credit reporting agency for the following purposes:
    • (a) to obtain a consumer credit report about the Client; and/or
    • (b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

24. Force Majeure

  • 24.1 Neither party will be liable to the other for failure or delay in meeting any obligation under a Contract, other than an obligation to pay money, due to strikes and/or lockouts (whether of their own employees or those of others), acts of God, war, fire, flood, natural disaster, pandemic, embargo, litigation, cyber attack, failure of a third party platform, power or telecommunications failure, acts of government or any agency, instrumentality or political subdivision thereof, or any other cause beyond the control of the party which had the duty to perform. In any such event, the time for performance of the obligations under the Contract will be extended by the same period or periods for which performance is delayed. The party so affected will use its best endeavours to avoid or remove such causes of non-performance and will continue performance with the utmost despatch as soon as such causes are removed, provided that nothing in this clause will be construed as requiring the affected party to settle any industrial dispute.
  • 24.2 Where an event described in clause 24.1 continues for more than sixty (60) days, either party may terminate the Contract on written notice.

25. General

  • 25.1 A notice under a Contract must be in writing and sent to the address or email address of the other party last notified in writing. A notice sent by email is taken to be received on the Business Day it is sent, unless the sender receives a delivery failure notification.
  • 25.2 A Contract may be executed in counterparts and by electronic signature, each of which is taken to be an original.
  • 25.3 The relationship between the parties is that of independent contracting parties. Nothing in these Terms and Conditions creates a partnership, joint venture, agency, fiduciary or employment relationship between the parties.

25A. Australian Consumer Law

  • 25A.1 Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by law which cannot lawfully be excluded or limited, including the consumer guarantees and the unfair contract terms provisions of the Australian Consumer Law.
  • 25A.2 Any term of these Terms and Conditions that would otherwise be void or unenforceable under the Australian Consumer Law is to be read down to the extent necessary to make it valid and enforceable, or severed in accordance with clause 2.2.
  • 25A.3 Where the Australian Consumer Law applies and the Supplier’s liability may be limited under section 64A of that law, the Supplier’s liability is limited, at the Supplier’s option, to re-supplying the relevant Works or to paying the cost of having them re-supplied.
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