Terms and conditions

Standard Terms and Conditions

The Client wishes to engage the Contractor to provide the Services. The Contractor has agreed to provide the Services to the Client on the following Terms and Conditions. The Client acknowledges and confirms that it has read, understood and unconditionally accepts the following Terms and Conditions. The following Terms and Conditions constitute a legally binding agreement between the Contractor and the Client.

1 Definitions and Interpretation

Any references to ‘you’ or ‘your’ refers to the Client with whom this Agreement is made. Any references to ‘we’ or ‘us’ refers to the Contractor in this Agreement.

Additional Fees means the additional costs and charges payable by the Client to the Contractor for the supply of any Additional Services or varied Services by the Contractor to the Client under this Agreement.

Additional Services means any services not specified in the Scope of Marketing Services in the Proposal which the Contractor may agree to provide to the Client for Additional Fees payable by the Client to the Contractor under this Agreement.

Agreement means these Terms and Conditions, any variations to the Terms and Conditions and any documents, schedules or annexures referenced or incorporated into this Agreement as may be amended from time to time.

Bank Account means the bank account details of the Contractor nominated by the Contractor to the Client in writing from time to time.

Business Day means a day that is not a Saturday, Sunday or public holiday in the State of Queensland.

Business Hours means from 9:00am to 5:00pm on a given Business Day.

Cancellation Fee means any cancellation fees specified by the Contractor in the Proposal as payable by the Client.

Claims means any actions, suits, proceedings, demands, losses, injuries, damages, costs, expenses, judgments or any other detriment whatsoever.

Client Materials means all text, data, graphics files, videos and sound files, and other materials contained in the Client’s website, databases or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.

Client means the person or legal entity that signs the Agreement for or on behalf of the Client, and if there is more than one Client, then each of them jointly and severally, including all executors, administrators, successors and permitted assigns or any person acting on behalf of and with the authority of the Client.

Commencement Date means any date or dates specified in the Proposal from which the Contractor will provide the Marketing Services to the Client unless otherwise agreed in writing between the parties.

Completion Date means the date that the Marketing Services, Additional Services or other Services are intended to be completed by the Contractor as may be specified in the Proposal or otherwise in writing by the Contractor.

Contractor means Sustainable Marketing Services Australia Pty Ltd ACN 131 010 896 as trustee for the ML Anderson Discretionary Trust ABN 41 155 657 487 trading as Sustainable Marketing and includes the Contractor’s administrators, successors and permitted assigns or any person acting on behalf of and with the authority of the Contractor. Unless notified otherwise, the Contractor’s contact details are Suite 28, Level 1, Cleveland House, 120 Bloomfield Street, Cleveland Qld 4163. Telephone: 07 3821 3939. Email: info@sustainablemarketing.com.au.

Confidential Information means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential and includes, without limitation:

information conveyed in written, graphic, oral, visual or physical form and may include, without limitation, various technical and commercial data, know-how and information, and any other activity or information of any nature whatsoever including without limitation data, data bases, source codes, methodologies, techniques, manuals, artwork, advertising manuals, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, marketing or commercial information, studies, improvements, examples, cases, findings, inventions and ideas, Intellectual Property, trade secrets, patents, engineering and product specifications, material formulations, models, prototype, product concepts and other records and information in relation to the
Contractor or the business of the Contractor;
financial, management and marketing information;
research, plans or other documentation;
information imparted in discussions or obtained through inspections or by any other method from the Contractor or the agents, advisers, consultants, employees or contractors of the Contractor;
information marked as ‘confidential’;
information which the parties are instructed is confidential, or which the parties are instructed to be kept confidential;
information concerning the organisation, finance, customers, markets and suppliers of the Contractor;
information disclosed to the parties in circumstances which would, to a reasonable person, indicate that the information is sensitive commercial information or information of a kind which, if disclosed to third persons, could or might cause any of the parties to sustain loss or damage; and

oral, written, electronic and/or recorded information of any party’s business, products, financial or marketing information, operations, systems, assets or liabilities,

but does not include information which:

is or becomes public knowledge other than by breach of this Agreement;
is required to be disclosed by law;
was known by the recipient as at the date of this Agreement; or
has been independently developed or acquired by the recipient without reference to the disclosing party’s

Confidential Information, where the burden of establishing any of the exceptions referred to in (j) to (m) above will be upon the recipient.

Employee means a person, an employee, a prospective employee, contractor, an entity or company whom the Contractor has employed, or engaged, or contracted, to provide services for or on its behalf to the Client during the:

24 months preceding the date of expiration or termination of this Agreement, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case;
18 months preceding the date of expiration or termination of this Agreement, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case;
12 months preceding the date of expiration or termination of this Agreement, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case; or
6 months preceding the date of expiration or termination of this Agreement.

Excluded Services means excluded services and all services, marketing or otherwise, which are not Marketing Services, Additional Services or any other Services that the Contractor has not agreed to provide to the Client.

Fees means the fees payable by the Client to the Contractor under this Agreement as specified in the Proposal or as otherwise revised and/or increased in accordance with the Contractor’s rights under this Agreement.

Materials means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property in such Materials.

Marketing Services means the services described under the heading ‘Scope of Marketing Services’ in the Proposal which the Contractor agrees to provide to the Client for the Fees but excludes any Additional Services, other Services or Excluded Services.

Intellectual Property means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with:

a party’s Intellectual Property that existed prior to, or created independently of, this Agreement;
any Confidential Information, trade secrets, technical data and know-how;
copyright;
inventions and discoveries (including patents, innovation patents and utility models);
trademarks or service marks and rights in, arising out of, or associated with domain names, business names and social media accounts;
designs or circuit layouts; and
any other rights resulting from intellectual property activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist,

whether or not now existing and registered or registrable and includes any right to apply for the registration of rights and all renewals and extensions.

Law means all applicable laws of the Territory or State in which the Marketing Services, Additional Services or other Services are provided by the Contractor to the Client including all amendments and replacing laws.

Notice means a notice in writing issued in accordance with this Agreement.

Plans and Specifications means any documents

(including plans, drawings and/or specifications) relating to the Marketing Services, Additional Services or other Services to be used by the Contractor under this Agreement.

Proposal means the written proposal, quote or letter to which these Terms and Conditions are attached or incorporated or intended to apply, as provided by the Contractor to the Client that sets out the Services, Fees and any special conditions and/or other details of the Client’s engagement with the Contractor.

Restraint period means during this Agreement, and for the period from the date of expiration or termination of this Agreement for a period of:

24 months, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case;
18 months, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case;
12 months, unless that period is in the circumstances found not to be enforceable at law or in equity, in which case; or
6 months.

Services means the Marketing Services and/or Additional Services to be provided by the Contractor to the Client under this Agreement including any other goods, materials, services or variations agreed in writing between the parties.

Services Materials means any Materials that are created during the performance of the Services but does not include the Client Materials.

Site means the location at which the Marketing Services, Additional Services and/or other Services are to be carried out by the Contractor for the Client.

Terms and Conditions means the terms and conditions of this Agreement.

Works Period means the period of time during which the Marketing Services, Additional Services and/or other Services specified in the Proposal or in writing by the Contractor, commencing on the Commencement Date and ending on the Completion Date, are to be provided by the Contractor to the Client unless otherwise agreed in writing between the parties or the Completion Date is extended by the Contractor in accordance with this Agreement.

2 Proposal and Acceptance

2.1 The Proposal will remain open for written acceptance by the Client until the expiration date specified in the Proposal if any and thereafter will automatically lapse, or otherwise until such time as the Contractor may write to the Client withdrawing the Proposal. A binding Agreement will come into existence when the Client accepts the Proposal in writing to the Contractor.

2.2 Any instructions received by the Contractor from the Client for the supply of the Services will constitute acceptance by the Client of the Terms and Conditions of this Agreement. Upon acceptance of these Terms

and Conditions by the Client, the Terms and Conditions can only be amended with the written consent of the Contractor, which consent maybe withheld at the Contractor’s sole and absolute discretion.

2.3 The Client must give the Contractor at least fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name or Client’s details (including but not limited to, changes to the Client’s address for service, email address, telephone number). The Client will be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this subclause of the Agreement.

3 Variations

3.1 The Services to be provided under this Agreement may be varied on the terms agreed between the Contractor and the Client provided that the details of any variation are placed in writing before any services the subject of the variation are performed. The Contractor shall not be obliged to perform any variation until the variation is agreed in writing.

3.2 Either party may give the other written notice requesting a variation of the Services under this Agreement. If the Client requests a variation of the Services, the Contractor shall give to the Client the Contractor’s calculation of the change to the Fees, and/or the Additional Fees payable to the Contractor, resulting from the proposed variation of the Services.

3.3 If the Contractor has requested a variation to the Services, the Contractor is entitled to Additional Fees if the variation is, in the sole and absolute opinion of the Contractor, necessary as circumstances giving rise to the variation could not have been reasonably foreseen by the Contractor at the time the Agreement was entered into with the Client. The Client shall not unreasonably withhold its consent to a variation or refuse to pay the Contractor for any variation. If the Contractor seeks Additional Fees for a variation, but the Client does not provide its consent to the variation, the Contractor shall not be required to carry out the variation or Services.

3.4 If a variation will alter the cost of carrying out the Services, the Contractor will provide a written estimate and cost breakdown for carrying out the variation and the effect if any it will have on the Completion Date. The Client and the Contractor will agree an adjustment to the Fees, or to Additional Fees, in writing. If the Client wishes to proceed with the variation, the Client will confirm their instruction to proceed in writing, which will be deemed as written acceptance of any adjustment to the Fees, Additional Fees and/or extension to the Completion Date notified by the Contractor.

4 Invoices, Payment and Cancellations

4.1 The Fees payable by the Client to the Contractor are set out in the Proposal. Any other Fees and/or Additional Fees may be notified in writing to the Client by the Contractor. The Fees do not include any travel or accommodation costs, or the costs of images or media lists or any other costs and charges not specified in the Proposal that may reasonably arise in the course of providing the Services to the Client. If additional costs and charges become payable by the Client, the Contractor will disclose the costs to the Client prior to incurring the costs and charges on behalf of the Client.

4.2 The Client agrees and undertakes to pay the Fees, Additional Fees or any other costs, charges, sums or amounts which may become owing to the Contractor under this Agreement into the Bank Account. Where more than one Client has entered into this Agreement, the Clients will be jointly and severally liable for the payment of all Fees.

4.3 The Contractor may issue an invoice for the Fees, Additional Fees or any other amounts owing under this Agreement to the Client. The Client must pay the invoice into the Bank Account within seven (7) days of the invoice date or in accordance with the invoice terms.

4.4 At the Contractor’s sole and absolute discretion, the Fees, Additional Fees or any other costs and charges payable under this Agreement will be payable by the Client to the Contractor on the following basis:

payment will be due and payable at the Commencement Date; or
payment will be due and payable at the Completion Date; or
payment will be due and payable for the amounts and at the intervals determined by the Contractor; or
payment will be due and payable on terms indicated on the invoices issued by the Contractor
to the Client; or
payment will be due and payable on terms specified in the Proposal or any other terms notified in writing to the Client by the Contractor in relation to the Services or any variations made to the Services.

4.5 Invoices may be settled by direct deposit, direct debit or credit card payment (which may incur a surcharge of up to two and a half percent (2.5%) or more of the Fees and/or Additional Fees). We prefer direct debit payments.

4.6 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and a half percent (1.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. In the event that the Client’s payment is dishonored, the Client will be liable for any dishonour fees incurred by the Contractor.

4.7 To the extent that a party makes a taxable supply in connection with the Agreement to the other party then, except where express provision is made to the contrary, the amount payable by the recipient of that supply is a GST exclusive amount and the recipient of that taxable supply will pay to the supplier the GST payable in respect of that supply in addition to the other consideration payable. Any further or other fees must be paid by the Client to the Contractor in accordance with the Contractor’s directions. Payment made by cheque or electronic funds transfer (‘EFT’) is not deemed made until the proceeds of the cheque or EFT have cleared.

4.8 The time for payment is of the essence.

4.9 If any Fees, Additional Fees or any other amounts are outstanding to the Contractor then the Contractor may, in its absolute, sole and unfettered discretion, take all or any of the following actions against the Client:

charge a late payment fee;
charge any additional charges incurred by the Contractor as a result of the late payment; and
suspend or terminate any or all of the Services under this Agreement.

4.10 The Contractor may terminate this Agreement at any time before the Services are performed by giving written notice to the Client. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation. In the event that the Client cancels any of the Services, the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation. The Contractor reserves the right to charge a Cancellation Fee (or part thereof) in its absolute discretion against the Client.

4.11 If the Client cancels the Services after they have already been commissioned by the Client, the Contractor will (without prejudice to any other rights at law or under this Agreement) charge for the Services carried out, expenses incurred and financial commitments the Contractor has entered into for or on behalf of the Client since being commissioned, plus thirty (30) per cent of the remaining Fees, Additional Fees and/or any other costs and charges payable by the Client to the Contractor.

4.12 Without limiting the ability of the Contractor to recover all amounts owing to it, the Client authorises the Contractor to charge any amounts owing by the Client to any credit card or account details provided to the Contractor.

4.13 The Contractor reserves the right to revise the Fees and/or Additional Fees or any other costs and charges under this Agreement prior to the Commencement Date or following the Commencement Date if a variation arises. The Client agrees to be bound by any revised Fees and/or Additional Fees or costs and charges provided the Contractor gives written notice to the Client of any such changes. The Client authorises the Contractor to conduct any credit checks against the Client.

4.14 The Contractor reserves the right to increase its fees each year in accordance with any changes to the Consumer Price Index.

4.15 At the Contractor’s absolute and sole discretion, a deposit may be required to be paid to the Contractor by the Client prior to the Commencement Date.

4.16 The Client agrees to pay any and all costs associated with recovery of debt under this clause including (but not limited to) debt collection, outsourcing and legal costs should the Contractor take legal action outside of Court or through Courts of appropriate jurisdiction

5 Marketing Services and Additional Services

5.1 The scope of the Marketing Services to be provided are specified under the heading ‘Scope of Marketing Services’ in the Proposal. The Contractor may offer in writing, and the Client may wish to accept in writing, Additional Services at Additional Fees from time to time. Marketing Services and any other Services are only to be provided during normal Business Hours.

5.2 If there are any inconsistencies between the Proposal and any Plans and Specifications, the Contractor may revise the Fees prior to the Commencement Date. If any such inconsistency comes to light after the Commencement Date, the Contractor is entitled to be paid revised Fees and/or Additional Fees for the supply of any Marketing Services, Additional Services or other Services by the Contractor to the Client.

6 Excluded Services

6.1 Unless otherwise agreed in writing, the Contractor has no liability for, and is not required to provide Services under this Agreement if it relates to:

rectification of lost or corrupted data arising for any reason other than the Contractor’s own negligence;
support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services or the use of any system or operating environment;
attendance to faults caused by using the Services outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Services, or caused by operator error or omission or Client’s error or omission;
restoration of data files following failure to backup data files;
diagnosis and/or rectification of problems not associated with the Services;
damage due to external causes outside the Contractor’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary;
the Client not following the Contractor’s or a third party’s (such as Google’s) written instructions or directions for the Services;
the Client’s or its third party’s abnormal use of the Services and/or any repair or damaged caused by such misuse; or
any other exclusions specified in the Proposal.

6.2 The Contractor may choose to provide the above services at an additional cost to the Client.

7 Site Use and Access

7.1 If the Services are to be carried out at a Site belonging to, or under the control of, the Client, then the Client grants the Contractor a licence to enter and occupy the Site for the purpose of carrying out the Services under this Agreement. The Contractor will occupy the Site from the Commencement Date until the Completion Date as necessary. During this time, the Contractor will be entitled to free and uninterrupted access to the Site. If the Client causes any interference to the Contractor and the Contractor incurs additional costs (including costs arising from or in relation to delays), the Client is liable to the Contractor for any delays and/or additional costs.

7.2 The Contractor is not liable for any loss or damage (including any indirect or consequential loss) however caused in accessing the Site beyond the reasonable control of the Contractor. If there are any Site access problems or concerns, it is the Client’s responsibility to inform the Contractor in writing prior to the Commencement Date.

7.3 The Client must not engage in, or allow, any conduct or behaviour which is deemed in the sole and absolute opinion of the Contractor to be disruptive to the Contractor’s business or ability to provide the Marketing Services, the Additional Services or any other Services to the Client.

7.4 If the Site becomes inaccessible due to any reason beyond the control of the Contractor, the cost incurred by the Contractor in obtaining sufficient access to the Site is to be added to the Fees.

8 Commencement, Completion and Delay

8.1 This Agreement will commence on the Commencement Date as determined, estimated or amended by the Contractor and continue until the Completion Date unless terminated earlier in accordance with this Agreement. The Contractor will start carrying out the Services on the Commencement Date. The parties agree that the Agreement will run for the Works Period in order to maximise the results and benefits of the Services.

8.2 If it becomes apparent to the Contractor that the progress of the Services is being delayed or that the Services will not be completed by the Completion Date, the Contractor will within three (3) days of any event or occurrence giving rise to such delay notify the Client in writing of the cause and duration of such delay. The Completion Date will be extended by a fair and reasonable amount of time if the Contractor:

has to spend extra time completing the Services because of variations made under this Agreement;
the Services are delayed by any act or omission of the Client; or
cannot finish the Services on time for reasons beyond the control of the Contractor.

8.3 For the avoidance of any doubt, the Contractor will incur no liability for any delays or non-performance arising from force majeure, strikes, lockouts, war or other hostilities or any active event beyond the reasonable control in whole or in part of the Contractor.

8.4 The Contractor is entitled to claim any reasonable additional costs incurred as a result of the Completion Date being extended due to any delay that may occur and such additional costs will be added to the Fees. If any period of delay is three (3) days or more, then the Contractor may at its sole and absolute discretion require the Client to pay for all Services completed to the date of the delay.

9 Intellectual Property

9.1 No Intellectual Property of the Contractor is transferred by virtue of this Agreement. All

Intellectual Property of the Contractor is either owned by or belongs to the Contractor and it is not licenced, assigned or transferred in any way to the Client nor does the Client acquire any interests in the Intellectual Property of the Contractor. The Intellectual Property may not be used by the Client, nor reproduced or communicated to a third party without the
1. Contractor’s prior written approval.
2. The Client hereby grants to the Contractor a royaltyfree, non-exclusive, non-transferable licence to use the Client’s Intellectual Property and Client Materials for the purposes of this Agreement. For the avoidance of doubt, the Client warrants that it owns all Intellectual Property in the Client Materials and indemnifies the Contractor against any action by any person claiming ownership or copyright in respect of those documents.
3. Use of the Contractor’s trademarks are strictly prohibited unless written approval is obtained from the Contractor, which approval the Contractor may withhold at its absolute discretion. Failure to comply with the obligations contained in this subclause may result in infringement action being taken against the Client without further notice.

10 Services Materials

10.1 All Services Materials including the Intellectual Property in the Services Materials and the Services provided to the Client is owned by the Contractor upon creation (except to the extent that it has been created by the Client). Subject to the payment of all Fees, Additional Fees including any other costs, charges and expenses payable to the Contractor by the Client, the Contractor hereby grants the Client a permanent, royalty-free, non-exclusive and non-transferable licence to use, modify and adapt the Services Materials for the purposes of this Agreement and for the Client’s internal business purposes.

10.2 If the Client fails to pay the Fees, Additional Fees, including any other costs, charges and expenses payable to the Contractor by the Client, the licence to use the Services Materials is immediately and automatically revoked. Once all monies owing to the Contractor by the Client have been paid in full without any deduction or setoff, the Contractor hereby agrees to waive its moral rights in respect of the Services Materials created for the Client.

10.3 The Client is not permitted to use any media lists, key influencer lists, contact lists or any other Services Materials or Materials whatsoever which the Contractor in its the sole and absolute discretion shall determine the Client is not permitted to use. For the avoidance of any doubt, the Contractor reserves the right to use examples of the Services Materials and Services provided to the Client, including details of the Client, in any client lists or materials provided or to be provided to prospective clients of the Contractor provided it does not compromise the confidentiality of the Client and the Client is given an opportunity to comment on those materials.

10.4 The Client agrees not to copy, reproduce, export or deal in the Services and Services Materials or any part of them in any way except as expressly permitted by this Agreement. The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and Services Materials nor permit any third party to do so.

10.5 The Client indemnifies, saves and holds the Contractor harmless from any loss, liability, claim, damage or expense the Contractor suffers or incurs as a result of the Client’s failure to comply with its obligations under this clause.

11 Non-solicitation and restraints

11.1 During the Restraint period, the Client must not:

canvass, solicit, induce or encourage any person who is or was an Employee of the Contractor to leave the Contractor or any of its related body corporates; or
canvass, solicit or accept any approach from any person who is or was at any time an existing or prospective Employee of the Contractor or any of its related body corporates or any person who refers business to the Contractor or any of its related body corporates on a regular or ongoing basis, with a view to obtaining custom or any business introduction from that person in a competing business; or
interfere in any way with the relationship between the Contractor or any of its related body corporates, Employee, employees, existing or prospective clients, customers, contractors, suppliers or any other person.

11.2 The Client acknowledges that:

each agreed restraint specified above is, in the circumstances, reasonable and necessary to protect the genuine business interests of the Contractor or any of its related body corporates;
damages are not necessarily an adequate remedy if the Client breaches this restraint clause; and
the Contractor may apply for injunctive relief if the Client breaches or threatens to breach this restraint clause or the Contractor believes the Client is likely to breach this restraint clause.

11.3 Each party agrees that if:

a court of competent jurisdiction finds that any provision of this restraint clause is an unenforceable provision not enforceable at law or in equity; and
the unenforceable provision would be enforceable if one or more of the alternate periods referred to in the definition of restraint period were deleted;

then the unenforceable provision must be made enforceable by making those deletions.

12 Confidentiality and Privacy

12.1 Each party must at all times:

maintain the secrecy and confidentiality of any Confidential Information of the other party;
not divulge or disclose to any other person, firm, corporation or entity any Confidential Information
of the other party;
refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and
use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.

12.2 For the avoidance of doubt all methodologies, documentation and procedures used by the Contractor for the provision of the Services are classified as the Contractor’s Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless the Contractor provides its express written consent (which may be withheld in its sole and absolute discretion).

12.3 The Client agrees to comply with the Privacy Act 1988 in its dealings with the Contractor. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by the Contractor in connection with this Agreement. The Client indemnifies and keeps indemnified the Contractor from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.

13 No Warranty

13.1 The Client acknowledges that no representation or warranty has been given or will be given by or on behalf of the Contractor as to the suitability, adequacy, quality, reliability, merchantability, acceptability, fitness for purpose, condition, description, assembly, compatibility, manufacture, design or performance of the Marketing Services, the Additional Services, any other Services or Services Materials that may be provided by the Contractor to the Client from the time to time under this Agreement.

13.2 The Client further acknowledges that it uses the Marketing Services, the Additional Services, the Services Materials or any other Services that may be provided by the Contractor to the Client at the Client’s sole risk.

13.3 If the Client is a ‘Consumer’ under the Australian Consumer Law (‘ACL’), nothing in this Agreement restricts, limits or modifies the Client’s rights or remedies against the Contractor for failure to comply with a statutory guarantee under the ACL. Nothing in this Agreement is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of goods and/or services which cannot be so excluded, restricted or modified.

14 Client’s Further Obligations

14.1 The Client warrants that:

it owns the rights or has the right to use the Client Materials and any Intellectual Property in the Client Materials;
it owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Client’s information and communications infrastructure;
its communications infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the communications infrastructure;
has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Materials; and
it will check the integrity of the Client Materials on a regular basis.

14.2 For the avoidance of doubt, the Contractor does not take any responsibility for the Client Materials and it is the Client’s sole responsibility to ensure the integrity of the Client Materials.

14.3 The Client must follow all reasonable and lawful directions given by the Contractor to the Client during the Works Period. During the term of this Agreement, the Client must:

provide all necessary information to the Contractor immediately upon request;
provide access to locations, systems and communications infrastructure including relevant passwords and/or data required by the Contractor in order to perform the Services;
regularly backup its data, Client Materials and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption;
cooperate with the Contractor by providing access to the Site and facilities as reasonably necessary to enable the Contractor to provide the Services;
provide other such access, documents, information or data as the Contractor reasonably requires in order to perform the Services; and
comply with the terms and conditions of this Agreement, including any special conditions set out in the Proposal.

14.4 The Client agrees not to engage in any conduct that in the reasonable opinion of the Contractor obstructs the nature and goodwill of the Services.

14.5 The Client agrees to use the Services only for lawful purposes and is prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state or national law.

14.6 The Client must ensure that the Client and all visitors, guests, invitees, customers and clients of the Client, at all times:

do not bring into the Site any dangerous, corrosive, combustible, explosive, radioactive or offensive materials;
comply with all applicable Laws, regulations, codes of practices or policies, whether they are from Government, the Contractor, building management or any other entity.

14.7 The Client must obtain at the expense of the Client all licenses, permits, inspections, certifications and approvals that may be required for the Marketing Services, Additional Services, other Services or Services Materials provided by the Contractor to the Client. The Client agrees that the Site will comply with any occupational health and safety laws, regulations and standards.

14.8 The Client must obtain all permissions, give all notices and pay all fees required under any Act of Parliament or any regulation or bylaw of any local authority or statutory undertaker having any jurisdiction with regard to the Services to be provided by the Contractor and the Client will indemnify the Contractor against any claim, proceedings, loss or expense resulting from the Client’s breach of this clause. The Client must produce copies of all relevant permits, certificates and/or approvals to the Contractor on request.

15 Defective Goods and/or Services

15.1 The Client will inspect the Marketing Services, Additional Services, other Services or Services Materials immediately upon the Completion Date and within three (3) days of the Completion Date (with time being of the essence), will notify the Contractor of any alleged defects or failure of the Contractor to comply with the Proposal or the Agreement. The Client will afford the Contractor an opportunity to inspect any impugned Services. If the Client fails to comply with this clause the Services will be presumed to be free from any defects or damage.

15.2 For any defective Services which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing or repairing any Services except where the Client has acquired any Services as a Consumer within the meaning of the Australian Consumer Law in which case the Consumer may have a right to a refund, repair or replacement of the Services.

16 Client’s Liability for Damage or Loss

16.1 The Client including any servants, employees, agents, contractors, consultants or representatives of the Client, are jointly and severally responsible and liable for all damages, losses, costs, expenses and/or fees arising from or connected with a breach of this Agreement by the Client including any servants, employees, agents, contractors, consultants or representatives of the Client including in relation to (without limitation) any of the following events:

damage or loss caused to the Site or third-party property as a result of your breach of this Agreement;
damage or loss arising from theft, where the whole or any part of the Site is left unlocked or unsecure;
damage or loss to any personal property owned by you (or any servant, employee, associate, agent, contractor, relative or any person known to you) or any third party, including personal property left on the Site, or any property received, handled or stored by us;
your death or personal injury or the death or personal injury of any other person including any servant, employee, associate, agent, contractor, consultant or representative except to the extent that it is caused by the Contractor’s negligence;
damage or loss suffered by the Contractor as a direct or indirect result of you providing false information, or engaging in any fraudulent activity, in respect of your use of the Site or your dealings with any law enforcement officer or other authority during the Works Period;
damage or loss caused to the Contractor or any other person by reason of your breach of the terms and conditions of this Agreement;
for all damage to the property of any person:
1. which is caused or contributed to by you or any person the Client allows to use the Site; or
2. which arises from the use of the Site by you or a person the Client allows to use the Site; and
any consequential damage, loss or costs incurred by the Contractor.
1. Where the Client including any servants, employees, agents, contractors, consultants or representatives of the Client, are required to pay the Contractor for any damage, loss, repairs, costs, expenses or other liabilities whatsoever arising under this Agreement, the amount to be paid to the Contractor will be determined by the Contractor and payable to the Contractor as a liquidated debt on demand. The Client or any other person shall not be entitled to set off against or deduct any sums owed or claimed to be owed to the Client against the Fees, the Additional Fees or any sums, amounts or debts owed to the Contractor whatsoever.
2. The Contractor is not responsible for pursuing any claims the Client or any person claiming under the Client may have against third parties for any damage or loss.

17 Limitation of Liability and Release

17.1 Unless the Contractor is negligent, the Contractor (including its employees, servants, agents, contractors, consultants or representatives) are not liable to the Client or any third party for any direct or indirect loss, damage, costs, expenses (including for loss of use or enjoyment) or any other liabilities resulting from or in any way connected with (without limitation):

any accident, incident, defect, damage or any other failure of the Site, Marketing Services, Additional Services, other Services or Services Materials provided to the Client;
arising out of the loss of data through corruption, piracy, and breach of security or for any other reason;
your death or personal injury or the death or personal injury of any other person; or
loss of or damage to your or anyone else’s real or personal property, which includes, without limitation, personal property left on the Site.

17.2 Without limiting the foregoing, to the maximum extent permitted by law, the Contractor will not be liable to you or any third party for any indirect, special, incidental or consequential damage, or loss of profits or loss of earnings, loss of opportunity and/or loss of savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Materials or suffered by you or any other person due to any breach of this Agreement by the Contractor or any other Law and you release and indemnify the Contractor (including for legal costs on a solicitor and client basis) from any such claims. It is agreed that in the event the Client or any third party suffers any loss or damage due to any breach of this Agreement by the Contractor then the liability of the Contractor is limited to (at the Contractor’s sole and absolute discretion) a refund of any Fees or Additional Fees paid by the Client or the repair or replacement of any Marketing Services, Additional Services, other Services or Services Materials provided to the Client and does not include any economic or consequential damages of any nature whatsoever.

17.3 For the avoidance of doubt, the Contractor’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Agreement will be limited to the amount of monies actually received by the Contractor under the Agreement.

17.4 For the avoidance of doubt and to the fullest extent permitted by law, the Contractor is not liable for any loss or damage suffered by the Client or any third party due to the Client’s negligent or improper use of the Services and/or Services Materials.

17.5 To the greatest extent permitted by the law, the Contractor and any person claiming under the Contractor shall not be liable for any act or omission in carrying out or failing to carry out any of the Marketing Services, the Additional Services or any other Services and the Client hereby releases the Contractor and any person claiming under the Contractor from all liability.

18 Indemnity

18.1 The Client assumes sole responsibility for the use of the Services and Services Materials in its business operations and the Client including any servants, employees, agents, contractors, consultants or representatives of the Client, are jointly and severally liable for and indemnify the Contractor (including its employees, servants, agents, contractors, consultants or representatives) from and against all and any liability claims, actions, demands, loss, damage, fines, charges, expenses and costs (including, without limitation, any insurance costs and excess fees, and legal costs on a solicitor and own client basis) incurred, suffered by or claimed against, the Contractor in relation to, or in connection with or arising from:

a. this Agreement;

b. the Law;

c. any breach of these Terms and Conditions by the Client;

d. any demand or claim by any person for death, personal injury or damage to any property;

e. any demand or claim by any person for loss of profit, loss of revenue, loss of opportunity, indirect or consequential losses;

f. as a result of the supply of any Marketing Services, Additional Services, other Services or

Services Materials under this Agreement;

g. as a result of any use of the Site;

h. any unlawful, reckless or negligent act, error or omission of the Client or the Contractor; and

i. the Client’s use of, or reliance on, any part of the Services and/or Services Materials; or

j. any other person’s use of, or reliance on, any part of the Services and/or Services Materials which were provided to that person directly or indirectly by the Client;

k. a breach or failure to perform by the Client of its obligations under this Agreement; or

l. any wilful, unlawful or negligent act or omission of the Client; or

m. against any Claims arising at any time in relation to any act or omission on the part of any one or more of: (i) the Client;

the Contractor; and
any person claiming under the Client or the Contractor.

19 Insurance

19.1 If requested by the Contractor, the Client must effect on or before the Commencement Date and keep current during the Works Period, insurance policies covering:

public liability for an amount in respect of any single accident of not less than AUD$20 million or any other amount as the Contractor may notify the Client from time to time (including insurance in respect of any loss or injury arising out of the Client placing its property on the Site or use of the
Site during the Works Period);
industrial special risks, covering the Contractor’s business and equipment placed in or used on the
Site for its full value;
professional indemnity; and (d) workers' compensation.

19.2 Each insurance policy must:

be taken out with an insurance company acceptable to the Contractor;
cover the risks and otherwise be on terms acceptable to the Contractor; and
be taken out in the names of the Contractor and the Client.

19.3 The Client must, prior to the Commencement Date and whenever reasonably required by the Contractor, give the Contractor evidence that it has complied with this clause.

19.4 The Client acknowledges that the Contractor has not effected any insurance in respect of the Client’s property, the Site or the Client’s business and that the Client hereby warrants that it has effected all necessary insurances including professional indemnity insurance, public liability insurance, insurance of its own property and workers’ compensation insurance.

20 Default

20.1 The Client commits a default or substantial breach of this Agreement if:

the Fees, the Additional Fees or any moneys payable by the Client under the Agreement is not paid to the Contractor on the due date;
the Client fails to comply with any of the conditions or obligations under this Agreement which in the sole opinion of the Contractor constitutes a breach of a material term of this Agreement;
the Client fails to follow any reasonable and lawful directions given by the Contractor;
the Contractor has evidence that the Client has acted illegally;
the Contractor has evidence that the Client has caused a person harm or has caused, or is intending to cause, the Contractor harm; or (f)the Client vacates or abandons the Site.

20.2 No prior demand is required to be made by the Contractor to the Client for the payment or performance of any term of this Agreement.

21 Consequences for Default

21.1 If the Client has committed a default or substantial breach of this Agreement, then the Contractor may immediately and without notice do any one or more of the following:

terminate all or any of the Marketing Services, Additional Services or any other Services without notice;
take possession of any property of the Client and, at the Contractor’s election, sell the property and offset any amount owed by the Client to the Contractor or store the property at the Client’s expense;
issue proceedings against the Client.

21.2 If the Client defaults in payment of any invoice when due, the Client will indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.

21.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation under this Agreement, the Contractor may immediately suspend or terminate the supply of any Services to the Client or any of its other obligations under this Agreement. The Contractor is not liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this subclause.

22 Termination

22.1 Without prejudice to any other remedies available to the Contractor and notwithstanding any Works Period specified the Contractor may terminate this Agreement at any time after giving the Client three (3) days’ notice of termination or without notice if the Client commits any default or substantial breach of the Agreement. If either party breaches a simple term of this Agreement and fails to remedy such breach within seven (7) days after service upon it of notice of such a breach, either party may by notice terminate this Agreement with immediate effect.

22.2 The Client may terminate this Agreement by giving at least one (1) month’s notice to the Contractor. The Contractor will be entitled to be paid by the Client for all Services carried out to the date of termination of the Contractor’s engagement under this Agreement.

22.3 Notwithstanding anything elsewhere contained in this Agreement either party may terminate this Agreement immediately by giving notice to the other party if the recipient party has breached any Law then applying to this Agreement or does any act or omits to do any act that could cause the terminating party to be in breach of any Law applicable to this Agreement.

22.4 Termination of this Agreement does not extinguish, or otherwise affect, any rights of any party to this Agreement against the other which:

accrued before the time at which the Agreement was terminated; or
otherwise relates to or may arise at any future time from any breach or non-observance of obligations under this Agreement, which arose before the time at which this Agreement was terminated.

23 Personal Property Securities Act 2009

23.1 In this clause, the terms, words or phrases such as ‘financing statement’, ‘financing change statement’, ‘security agreement’ and ‘security interest’ have the meanings given to them by the Personal Property Securities Act 2009 (Cth) (‘PPSA’), as may be amended from time to time.

23.2 The Client acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA (unless the Contractor requires the Client to enter a separate security agreement, in which case the Client must enter a separate security agreement with the Contractor), and security agreement creates a continuing security interest in all personal property, chattels or collateral, both equitable and legal, present or future of the Client (‘secured goods’).

23.3 The Client agrees and undertakes to:

sign immediately on request any documents or provide any information (which must be complete, current and accurate) that the
Contractor may reasonably require of the Client to register any document (including without limitation a financing statement or financing change statement) required to be registered by the PPSA on the Personal Property Securities Register (‘PPSR’) and to correct a defect in any statement or document registered on the PPSR;
to keep harmless and indemnify the Contractor for all fees and expenses (including solicitor fees on a solicitor and client basis) plus any costs and disbursements incurred in registering a document on the PPSR or releasing any goods charged on the PPSR and enforcing or attempting to enforce a security interest under these Terms and Conditions; and
not to register a financing change statement in respect of a security interest without the prior written consent of the Contractor.

23.4 If the Contractor seizes or takes possession of any secured goods in accordance with its rights under this Agreement, the PPSA, or at law, the Contractor will not be required to dispose of or sell the secured goods to satisfy any amounts owed by the Client to the Contractor, or return the secured goods to the Client (or any other party) upon the amounts owed by the Client to the Contractor being satisfied.

23.5 The rights of the Contractor under this Agreement are in addition to and not in substitution of the Contractor’s rights under any other law (including the PPSA). The Client agrees that in addition to the Contractor’s rights under the PPSA, the Contractor may, if there is default by Client, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any secured goods, not only under the PPSA but also, as additional and independent rights, under this Agreement and the Client agrees that the Contractor may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

23.6 The Client waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA. The Contractor and the Client agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Client must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply.

23.7 The Client must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPSA) in the secured goods other than with the express written consent of the Contractor.

24 Security, Charges and Repossession

24.1 Despite anything to the contrary contained in this Agreement or any other rights which the Contractor may have:

the Contractor has an interest in the Services Materials, and the Client charges its interest in the Services Materials with due payment to the Contractor of all amounts that may become due to the Contractor in relation to this Agreement;
if the Client is the owner of land, realty or any other assets capable of being charged, the Client agrees to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other assets to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under this Agreement. The Client acknowledges and agrees that the Contractor or the Contractor’s nominee shall be entitled to lodge caveat(s) (and the Client irrevocably consents to the lodgement of said caveat(s)), which caveat(s) shall be withdrawn once all payments and other monetary obligations payable hereunder have been met by the Client;
should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis;
the Client will be liable for any stamp duty or registration fees that are payable in relation to the lodgement, withdrawal or release of any caveats or mortgages lodged under this clause; and
the Client agrees to irrevocably nominate, constitute and appoint the Contractor or the Contractor’s nominee as the Client’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause under the Agreement.

25 Force Majeure

Neither party will have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances must promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a period of more than seven (7) days, either party may terminate this Agreement by notice to the other party or continue with the Agreement on terms the parties may otherwise agree in writing.

26 Notice

A notice or other communication to a party under this Agreement must be in writing and delivered to that party in one of the following ways: 26.1delivered personally; or

26.2 posted by prepaid post to their address for service (or an address as notified by the party or the party’s solicitor in writing from time to time) when it will be treated as having been received on the third business day after posting; or

26.3 sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.

27 Authority

Each party represents and warrants to the other party that it has the power and authority to enter into and perform this Agreement and to execute the obligations assumed or imposed upon it under this Agreement. If this Agreement is signed on behalf of the Client then the person signing covenants that they have the authority to sign this Agreement as a duly authorised agent of the Client and accepts personal responsibility for the performance of this Agreement.

28 Assignment and Subcontracting

28.1 The Contractor may assign any or all of its rights and obligations under this Agreement to any other party at any time without the need to notify or obtain the approval of the Client.

28.2 The Contractor may subcontract the whole or any part of the Services under this Agreement to suitably qualified professionals, save that the Contractor remains liable to the Client for the Services under this Agreement.

28.3 The Client must not, without the prior written approval of the Contractor:

mortgage, charge or otherwise encumber the Client’s interests in this Agreement;
assign the Client’s interests in this Agreement.

29 Severability

Unenforceability of a provision of this Agreement does not affect the enforceability of any other provision. If any provision is void, voidable or unenforceable, it will be severed from the Agreement to the extent of the inconsistency.

30 Entire Agreement

This Agreement shall constitute the entire agreement between the parties. Any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding on either party except to the extent incorporated in this Agreement.

31 Waiver

31.1 The failure, delay or omission by a party to exercise any power or right conferred upon that party by this Agreement will not operate as a waiver of that power or right, nor will any single exercise of any power or right preclude any other future exercise of the power, or the exercise of any other power or right under this Agreement.

31.2 A waiver of any provision of this Agreement, or consent to any departure by a party from any provision of this Agreement, must be in writing and signed by all parties and is effective only to the extent for which it is given.

32 Relationship of the Parties

Nothing in this Agreement, or any circumstances associated with it or its performance, give rise to a joint venture, partnership, employment relationship, franchise, agency, fiduciary or any other such relationship between the parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall share or be responsible for the debts and liabilities of the other party nor have the authority to legally bind the other in any manner.

33 Governing Law and Jurisdiction

This Agreement is governed by the laws of Queensland. The parties submit to the exclusive jurisdiction of the courts of Queensland.

34 Dispute Resolution

Without limiting any other rights of the Contractor, if a dispute between the parties arises in relation to, or in connection with, this Agreement or its subject matter, then the Contractor may direct the Client to comply with this dispute resolution clause.

34.1 Dispute

If a dispute arises from this Agreement (“Dispute”) then either party (‘Complainant Party”) will give to the other party a notice of dispute specifying the nature of the Dispute, what outcome the Complainant Party desires and what action the Complainant Party proposes be taken in order for the Dispute to settle (“Notice”).
The parties must endeavour to resolve the Dispute set out in the Notice in good faith within ten (10) Business Days of the respondent party (“Respondent Party”) receiving the Notice (“Resolution Period”).
In the event that the parties are not able to resolve the Dispute themselves during the Resolution Period, the parties must then participate in mediation in accordance with this clause (“Mediation”).

34.2 Mediation

If the parties do not agree within ten (10) Business Days from the end of the Resolution Period on:

the procedure to be adopted in a mediation of the Dispute;
the timetable for all the steps in those procedures; and
the identity and fees of the mediator; then:
the President of the Queensland Law Society will appoint the mediator and determine the mediator’s fees;
each party agrees to pay for half the cost of the mediator; and
the parties must participate in the Mediation.
The parties must pay their own costs for attending at or being represented at the Mediation. The parties must first comply with the dispute resolution procedures in this clause, if it is invoked by the Contractor, before applying for relief in any court (unless the relief required is urgent).
The parties must keep all aspects of any meeting held pursuant to this clause, except the fact of its occurrence, confidential and agree that all communications between the representatives at the meeting are made on a without prejudice basis.

35 General Provisions

35.1 The terms of this Agreement are confidential and the Client must not disclose them unless it is necessary for the provision of professional advice.

35.2 If the Client now or at any time in the future enters into this Agreement as a trustee, the trustee acknowledges and covenants that all the provisions of this Agreement are binding on the trustee both personally and in the trustee's capacity as trustee and are binding on the trustee's successors as trustee of the relevant trust fund. The trustee's liability will remain irrespective of any insufficiency in or lack of recourse to trust assets.

35.3 The Client agrees that the Contractor may review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change.

35.4 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

35.5 The Client shall not be entitled to set off against or deduct from the Fees or Additional Fees or any other monies owing to the Contractor any sums owed or claimed to be owed to the Client by the Contractor.

35.6 This Agreement may be executed in any number of counterparts, including counterparts by email transmission or photocopy, each of which when so executed will be deemed to be an original and such counterparts taken together will constitute one and the same instrument and the parties agree to accept such instrument as the original and binding Agreement. The parties by executing this Agreement reaffirm having given their prior consents as required by the Electronic Transactions Act (Queensland) 2001 to receiving electronic communications by way of facsimile or email.

SIGNED by the Contractor in accordance with section 126(1) of the Corporations Act 2001 (Cth):

Authorised Officer’s Date

Signature

Full Name of Position Held

Authorised Officer

SIGNED by the Client (and if a company, then in accordance with section 126(1) of the Corporations Act 2001 (Cth)):

Client / Authorised Officer’s Signature				Date

Full Name of Client / Authorised Officer				Position Held

Witness Signature (if Client is an Individual)				Date

Full Name of Witness

(if Client is an individual)