1. Definitions and interpretation
1.1 The following definitions apply in this Agreement unless the context requires otherwise:
Agreement means these Terms of Service together with the Client approved Scope of Services.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.
Client means the Client name as set out in the Scope of Services including all affiliated companies, directors, employees, contractors and third-party service providers.
Client Content means artwork, drawings, photography, text, graphics, audio and/or video files and other works of authorship created by or on behalf of L&A specifically and exclusively for the Client pursuant to the terms of the Scope of Services which distinguishes the Deliverables from other works which L&A has developed for itself or other clients, but will not include any L&A owned intellectual property or L&A Working Files.
Client Materials means materials, talent, images, audio and/or video files, that the Client owns or is otherwise authorised to use.
Change Request means a written document or email by which the Client requests, or L&A suggests, changes, modifications or amendments to an existing Scope of Services.
Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
Confidential Information means any information:
- Not generally known to the public;
- Relating to each party’s business in any form, including, but not limited to, all information that is produced or developed under this Agreement and/or in connection with the Scope of Services, regardless of whether such information or material is marked “Confidential” or “Proprietary” or by another similar marking;
- Information known by a party considered to be confidential and proprietary by the other party or from all relevant circumstances should reasonably be assumed by the Client or L&A to be confidential and proprietary to the other, including without limitation to:(i) Trade secrets;
(iii) Technical processes/formulas;
(iv) Design methodologies; and
(v) Financial matters pertaining to the business.
- Information set forth above which the Client L&A obtains from another party and which the Client or L&A designates as Confidential Information.
Corporations Act means the Corporations Act 2001 (Cth).
Deliverables means all of the components set forth in the executed Scope of Services and which L&A is expected to deliver to the Client, excluding L&A Working Files.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST has the same meaning given to that expression in the GST Law.
GST Law has the same meaning given to that expression in the GST Act.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any Claim.
L&A means Lednyak & Associates Pty Ltd (ACN 159 280 243) trading as L&A Social, and includes all affiliated companies, directors, officers, employees, contractors, third-party service providers and permitted assigns.
L&A Working Files means photography, video, design or related software files, including and not limited to RAW footage, InDesign, Illustrator, Photoshops files, and any data and/or tools created, acquired or licensed by or to L&A either before or during the course of performing the Services for Client, and utilised in any manner by L&A in performing the Services, and which are generally applicable to photography, video production, graphic design and which are not specifically created, acquired or licensed by L&A exclusively for the Client pursuant to the terms of the Scope of Services.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
Non-Solicitation Period means the period of twelve (12) months following the expiration of the Term.
RAW Footage means master footage recorded by L&A as part of the provision of Services.
Relevant IP means all Intellectual Property Rights that L&A makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or L&A’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
- using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
- in the course of, as a consequence of, or in relation to, the provision of the Services by L&A and/or the performance (whether proper or improper) of L&A’s duties and responsibilities to the Client under this Agreement or otherwise;
- as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
- in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Scope of Services means a social media content production and management quotation and any supporting documents or attachments which defines and sets out the Deliverables required for planning, creating and managing content for broadcast via third party social media digital platforms.
Services means the services to be provided by L&A to the Client as set forth in in the Scope of Services.
Strategy means a detailed description included or referred to in a Scope of Services of the content strategy, tone of voice, design, format, length, volume, and features of the Deliverables.
Third Party Works means any third-party design, talent, production, “off-the-shelf” software, Client Materials, or other materials incorporated by L&A into a Deliverable as a component of the Deliverable.
Trademarks means the trademarks, service marks, trade names, trade dress, URLs, domain names, and other proprietary designs, and logos used or intended to be used by each party to identify or market its goods and/or services, as set forth in the Scope of Services.
1.2 The following rules of interpretation apply in this Agreement unless the context requires otherwise:
- headings in this Agreement are for convenience only and do not affect its interpretation or construction;
- no rule of construction applies to the disadvantage of a party because this Agreement is prepared by (or on behalf of) that party;
- where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement or Scope of Services;
- in each schedule to this Agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
- a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
- an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
- a reference to writing includes any communication sent by post, facsimile or email;
- a reference to time refers to time in Sydney, New South Wales and time is of the essence;
- all monetary amounts are in Australian currency;
- a reference to a “liability” includes a present, prospective, future or contingent liability;
- the word “month” means calendar month and the word “year” means 12 calendar months;
- the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
- a reference to a “party” is a reference to a party to this Agreement and a reference to a “third party” is a reference to a person that is not a party to this Agreement;
- a reference to any thing is a reference to the whole and each part of it;
- a reference to a group of persons is a reference to all of them collectively and to each of them individually;
- words in the singular include the plural and vice versa; and
- a reference to one gender includes a reference to the other genders.
Performance of Services
2.1 In consideration of payment by the Client of the fees set forth in the executed Scope of Services, L&A will provide the Services and Deliverables set forth in the executed Scope of Services. Modifications or changes to a Scope of Services will not be effective, and L&A will have no obligation to perform any Services outside the scope of a Scope of Services unless agreed to by the parties, as evidenced by a Change Request or a new Scope of Services executed by both parties. The parties acknowledge and agree that they will discuss in good faith any adjustments to the fees required as a result of any variation to the Scope of Services.
2.2 The Client will cooperate with L&A in performance of the Services and will be responsible for delivering to L&A sufficient Client Materials and access to Client social media accounts to enable L&A to perform the Services as detailed and scheduled in the Scope of Services.
2.3 If the Client wishes to implement any changes or revisions that deviate in any material respect from the Strategy or the schedule set forth in the Scope of Services, the Client will submit a Change Request to L&A specifying in detail such changes or revisions. L&A will review the Change Request and promptly submit to the Client a written proposal for implementing such changes or revisions, including any price or schedule changes. The Client will have five (5) Business Days from receipt of L&A’s proposal to accept or reject, in writing, such proposal. If the Client accepts L&A’s proposal, the parties will execute a new Scope of Services for the changes requested by the Client. L&A will not be responsible for any delays caused by the evaluation and execution of a Change Request, and any such delays will not be considered a breach of L&A’s obligations under this Agreement.
Third Party Contractors
2.4 L&A may employ the services of its affiliates or of third-party contractors to provide any Services detailed in any Scope of Services; provided, that L&A will remain responsible for the performance of each Scope of Services. If L&A chooses to have certain Services performed by a subcontractor and/or affiliate, the Client will not contact or in any way interact directly with such subcontractor and/or affiliate regarding the Services without L&A’s prior written consent.
2.5 L&A offers Instagram growth as part of its Services. L&A use a strategic combination of manual and automated growth to ensure targeted and real results that use the lowest risk method. Clients which opt-in to Instagram growth as part of L&A’s Scope of Services agree to the following terms exclusively related to the provision of L&A’s Instagram growth Services.
- The Client agrees to L&A selecting high opportunity accounts and hashtags and engaging with them in order to reach new users.
- The Client agrees to alternative methods of service. Alternative methods of account growth may be employed by L&A at its discretion. Alternative methods include external account promotions across subsidiary websites and/or external websites. These methods aim to increase the number of followers by increasing traffic to the Instagram account of the Client. Such methods will not violate Client account privacy.
- While L&A strives to render Instagram growth Services as best as possible, L&A does not guarantee targets will be reached. L&A is under no obligation to fulfil any refunds should targets not be reached.
- The Client may terminate Instagram growth Services, without cause, by giving L&A 30 days written notice.
3. Delivery, Format and Approval of Deliverables
Delivery and Format
3.1 L&A will use commercially reasonable efforts to deliver the Deliverables in accordance with the schedule set forth in the Scope of Services provided that:
- this Agreement has not been terminated prior thereto, and;
- there has not been an unremedied default by the Client.
If any Deliverable is:
- Photography; it will be supplied in full colour JPEG formats. If the Client requests any additional formats it will be treated as an additional deliverable and L&A will provide an estimation to the the Client for approval for such additional formats.
- Video; it will be supplied in MP4 format. If the Client requests any additional formats or to receive RAW footage of the Deliverable, it will be treated as an additional deliverable and L&A will provide an estimation to the Client for approval for such additional formats. Subject to clause 11.7, L&A will store RAW footage of monthly retainer Scope of Services Deliverables for 3 months after delivery to the Client or RAW footage of campaign Scope of Services Deliverables for 12 months after delivery to the Client. After these periods, all RAW footage will be deleted from L&A Storage.
3.2 Notwithstanding any other provision of this Agreement, and except as provided in a properly executed estimation and or a Scope of Services , L&A will not be responsible for delays or non-performance of Services by L&A due to installation of upgrades, re-configurations, network outages or hacking to third party social media platforms or third party online applications used by L&A in the provision of Services.
3.3 If the Client has delayed L&A’s performance for any reason, including without limiting the generality of the forgoing;
- Failure to cooperate with or respond to a reasonable request of L&A;
- Failure to timely provide the Client Materials to L&A;
- Failure to meet deadlines for approval of Deliverables, or;
- Requests from the Client for Change Requests,
then the applicable schedule will be deemed modified to allow L&A to deliver the Deliverables within a reasonable period from the date specified in the original Scope of Services, in regard to the Client’s actions or omissions.
3.4 After L&A’s provision of a Deliverable, the Client will have up to seven (7) calendar days (or such other period as specified in the Scope of Services) to review, revise and approve the Deliverable during the approval period. The Client will accept the Deliverable by notifying L&A in writing or, alternatively, will provide L&A with written notice of material discrepancies between the Deliverable as delivered and the content strategy, tone of voice, design, content, format, length, volume, and/or features of the Deliverable as set forth in the Scope of Services, and request that L&A correct such material discrepancies. Notwithstanding the foregoing, if the Deliverable contains all material content strategy, tone of voice, design, content, format, length, volume, and features as set forth in the applicable Scope of Services and Strategy, the Client will accept the Deliverable. If, at the end of any Approval Period, the Client has not approved the Deliverable in writing or issued a request that L&A correct material discrepancies, the Deliverable will be deemed to have been approved by Client.
3.5 The Client acknowledges and agrees that the production of finished Deliverables may include elements of artistic expression and interpretation. L&A reserves the right to use ‘Artistic Licence’ in the provision of any Service that requires editing or the production of a Deliverable.
3.6 All Client Materials supplied by the Client to L&A will be deleted from L&A storage any time from 30 days after delivery of the Deliverables in accordance with the schedule set forth in the Scope of Services.
4. Payment and Cancellation
Service Fee Payment
4.1 In consideration of the Services provided and the rights granted by L&A to the Client under this Agreement, the Client will pay L&A the fees as set forth in the Scope of Services and subsequent invoice(s). Such fees will be exclusive of L&A’s out-of-pocket costs and expenses incurred in the course of L&A’s performance of its obligations hereunder. If the Client fails to make timely payments, L&A may suspend the performance of Services and/or terminate the applicable Scope of Services and/or this Agreement as provided in clause 11.
4.2 The Client will reimburse L&A for out-of-pocket costs and expenses incurred by L&A in performing the Services under this Agreement, including, but not limited to, the expenses relating to travel and office expenses incurred on behalf of Client (e.g. courier and delivery services, accommodation, equipment hire, location fees, studio hire, props and wardrobe, specialist crew, independent research, purchase of publications, media kits, event/stunt costs, expenses relating to media relationship building, face-to-face meetings, gifts, competition prizes and spokespeople/ambassador fees).
4.3 The Client will pay reimburse L&A for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by L&A under this Agreement, excluding income taxes which may be levied against L&A.
- If the Client has engaged L&A to provide or commence Services on a specified date, the Client may notify L&A in writing (during business hours) that the Client does not require the Services to be provided or commenced on that date. If notification of the cancellation is provided outside of normal business hours, it is deemed to have been provided at the commencement of the following Business Day.
- If the cancellation is made more than 24 hours prior to the day on which L&A has been engaged to provide or commence the Services, the Client must reimburse L&A for any expenses incurred by L&A in preparation for provision of the Services.
- If the cancellation is made within 24 hours prior to the day on which L&A has been engaged to provide or commence the Services, the Client must pay 50% of the agreed estimation, unless otherwise agreed by both parties.
- If the cancellation is made while L&A is providing Services to the Client, the Client must pay the agreed estimation in full, unless otherwise agreed by both parties.
5. Ownership, Use and License
5.1 L&A retains all rights and ownership, to the extent that L&A conceive(s), develop(s) or reduce(s) to practice all original works of authorship including photography, video, literary or other works, information, texts, graphics, imagery, documents, materials, tools, icons, audio, visual, symbols and characters whether or not registrable under copyright or similar laws or other Intellectual Property Rights which have been created by L&A in the course of and as part of the performance of the Services and which include both L&A and Deliverables provided to the Client.
5.2 The Client agrees and acknowledges that all Deliverables which have been created by L&A and provided to the Client solely in the course of the performance of the Services for the Client’s use, shall be for the Client’s use only in the territory as set out in the Scope of Services, and that the Client’s use of such Deliverables in another territory are subject to L&A granting the Client a license to use such Deliverables in that territory or for any other broadcast or media usage outside the Scope of Service.
License to the Client
5.3 Subject to the terms and conditions of this Agreement, L&A hereby grant to the Client a non-exclusive, royalty free, irrevocable license to use and reproduce the Deliverables, to the extent that they are:
- Required for operation of the Deliverables in its intended use under this Agreement; and
- Used in the territory as set out in the Scope of Services.
License to Client Materials
5.4 The Client hereby grants to L&A a royalty-free, non-exclusive, license to use, reproduce, modify, transmit, digitise, adapt and publicly display the Client Materials solely as necessary to perform its obligations under this Agreement.
Third Party Works
5.5 To the extent the Client elects to include Third Party Works as a component of a Deliverable, or to the extent Third Party Works are otherwise required to maintain the audio or visual content, design or functionality of a Deliverable, the Client will acquire, and if applicable, pay for, any licenses to such Third Party Works. Such licenses will include all rights necessary for L&A to modify or otherwise utilise the Third Party Works in a manner consistent with L&A’s obligations under this Agreement. The Client hereby grants to L&A a, nonexclusive and royalty free to use, modify, reproduce and publicly display all such Third Party Works contemplated by this clause solely as necessary to perform its obligations under this Agreement.
Reservation of Rights
5.6 Notwithstanding any other provision of this Agreement, the Client will obtain no right, title or interest in or to the Deliverables unless and until the Client pays the applicable fees in accordance with clause 4.1.
Definitions regarding GST
6.1 In this clause 6:
- expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
- any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
- any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.
Consideration is exclusive of GST
6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this Agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.
7. Trademarks and Credit
Use of Trademarks and Work Produced
7.1 The Client hereby expressly grants L&A the right to use and reproduce the Client’s Trademarks:
- To create any Deliverables, as specified the specifications; and
- In L&A’s marketing materials, advertisements, press releases, promotional brochures, presentation portfolios, award entries, L&A’s web site, or in any media now known or later developed, solely for the purpose of identifying the Client as a client and describing L&A’s Services provided to the Client.
Trademark Use by the Client
7.2 Subject to the terms and conditions of this Agreement, L&A hereby grants to the Client the right to use the Trademarks of L&A solely for the purpose of providing L&A credit for the production or development of the Deliverables, as set forth in clause 7.3.
Ownership of Trademarks
7.3 Each party will be the sole and exclusive owner of its Trademarks, and any goodwill arising from either party’s use of such Trademarks will insure solely to the benefit of the Trademark owner.
8. Representations, Warranties and Indemnification
8.1 L&A represents and warrants that:
It is capable of performing the Services with reasonable care and skill to the best of its knowledge and expertise;
- It provides the Deliverables as specified in the Scope of Services and will use all reasonable endeavours to deliver the same in a timely and professional manner using appropriately experienced and qualified personnel;
- It will comply with all applicable laws in performing the Services;
- Subject to the prior approval of the Client, L&A is required to obtain all necessary licenses, permissions and approvals and pay all royalties, licence and other fees (if any) relative to the use or exploitation by L&A of any material made or contributed by a third party in the provision of the resulting Services. The Client agrees that it will reimburse any expense that L&A incurs in obtaining such licenses, permissions and approvals within thirty (30) days of receiving an invoice from L&A in respect of such reimbursable items.
- L&A’s liability to the Client is limited at L&A’s option to either the resupply of the Services or the payment of the cost of having the Services resupplied.
- The Client acknowledges and agrees that L&A is not liable for any defect or change in Deliverable to the extent that the defect or change results from use of the material supplied by the Client or the hosting or maintenance of the services by the Client or a third party.
- L&A is not liable for any delay in providing the services if the delay or failure results from the Client’s act or omission or from a breach either intentional or inadvertent, by the Client in relation to its obligations under this Agreement.
8.1 To the best of L&A’s knowledge, the Deliverables as delivered do not infringe Intellectual Property Rights of any other person or entity. Notwithstanding the foregoing, L&A will not be deemed to have breached the warranties contained in this clause to the extent that the Client, its employees, agents, independent contractors or assigns have modified the Deliverable in any manner, or to the extent that the Deliverable is based on specifications provided by Client, or incorporates third-party materials through the use of Third Party Works or Client Materials provided by the Client. The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold L&A harmless from and against, any and all Losses that may be suffered by L&A and which arise, directly or indirectly, in connection with any breach of this Agreement by the Client and/or any negligent or other tortious conduct in the provision of the Services.
8.2 Each indemnity contained in this Agreement is an additional, separate, independent and continuing obligation that survives the termination of this Agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Limitation of liability
8.3 To the maximum extent permitted by law, L&A and its Representatives expressly:
(a) (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, L&A and its Representatives make no representation, and provide no warranty or guarantee, that:
- the Client will achieve any particular results from the provision of the Services; and
- any particular individuals will perform the Services on behalf of L&A.
(b) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against L&A under this Agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at L&A’s sole discretion):
- re-supply of the Services;
- payment of the costs of supply of the Services by a third party; or
- the refund of any amounts paid by the Client to L&A under this Agreement in respect to the Services,
even if L&A has been advised of the possibility of such Losses, and the Client acknowledges and agrees that L&A holds the benefit of this clause 8.3 for itself and as agent and trustee for and on behalf of each of its Representatives.
(c) (Losses) Notwithstanding any other provision of this Agreement, L&A will not be liable under this Agreement or otherwise for any form of indirect, consequential, exemplary, special, incidental, or punitive damages, even if L&A has been advised of the possibility of such damages. Notwithstanding any other provision of this agreement, L&A’s liability for any reason and upon any cause of action will be limited to the fees due to L&A from the Client under this Agreement. This limitation applies to all causes of action in the aggregate, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any other tort.
The Client’s Warranty of Responsibility and Indemnity
8.4 The Client hereby acknowledges that it has directed L&A to produce the Deliverable utilising the specifications, Client Materials, and, where applicable, Third Party Works. Except as expressly provided herein, the Client will be solely responsible for the Deliverables, including, without limitation, any and all forms of Client Content, Client Materials, and media included in the Deliverables; any means or methods of, or items placed into the Deliverables; any membership programs and/or benefits available on or contained within the Deliverables; and conforming the Deliverables to any and all applicable laws, rules and/or regulations.
The Client’s Non-Infringement Warranty and Indemnity
8.5 The Client represents and warrants that;
- The Client owns or has the right to use and to sublicense to L&A, as specified in clauses 5.3 and 5.4, all Client Materials, Third Party Works, and any Trademarks supplied by The Client, including the right to publicly display, publish, and distribute the Client Materials on the Internet and to authorise L&A to use the same in accordance with this Agreement;
- The Client is authorised to use the Client Materials in connection with the advertising, promotion and exploitation of the Deliverables as provided herein;
- The use by L&A of any Client Materials or Third Party Works in accordance with this Agreement will not violate the Intellectual Property Rights of any third party; and;
- The Client agrees to defend, indemnify, and hold harmless L&A, its parent, subsidiaries, and affiliates, and each of their respective directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable legal fees) arising out of the breach of Clauses 8.4 or 8.5 of this Agreement.
Australian Consumer Law
8.6 Notwithstanding any other term of this Agreement, if any goods or services supplied by L&A under this Agreement are held to be subject to the mandatory conditions and warranties of the Competition Consumer Act 2010 (Cth), L&A’s liability for breach of any such condition or warranty will be limited and subject to L&A’s option to:
- In the case of goods, anyone or more of the following:
- The replacement or equivalent replacement;
- The repair;
- The payment of the cost of replacing the goods or of acquiring equivalent goods;
- The payment of the costs repaired.
- In the case of services:
- The supply of the service again; or
- The payment of the cost of having the services supplied again.
8.7 To the maximum extent permitted by law, L&A and its representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of L&A under this Agreement where such damage or delay is caused by circumstances beyond the reasonable control of L&A (including but without limiting the generality of the foregoing, any Act of God, fire, flood, explosion, lightning, windstorm, earthquake, failure of machinery or equipment, shortage of materials, discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, labour disturbances or transportation difficulties) and L&A shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that L&A holds the benefit of this clause 8.7 for itself and as agent and trustee for and on behalf of each of its representatives.
Remedies for breach
8.8 Each party acknowledges and agrees that, in the event of any breach by the Client, damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.
9. Confidential Information
9.1 The parties agree to keep the Confidential Information of the other party confidential and to use such information only for the purposes of performance of their respective obligations under this Agreement.
9.2 A party must act with reasonable care to:
- not directly or indirectly reveal, report, publish or disclose any Confidential Information of the other party to any person, firm or corporation not expressly authorised by the owner;
- limit the disclosure of the Confidential Information within its own organisation only to those if its officers and employees to whom such disclosure is strictly necessary for the purposes of this Agreement and who have been made aware of its confidential nature and have agreed to keep the information confidential in accordance with the terms of this clause 9; and
- not use the name of the other party in publicity releases, advertising or promotion of the party unless the other party has given its prior written consent (which shall not be unreasonably withheld or delayed).
9.3 The obligations of confidentiality in clause 9 will not apply to information which:
- is generally available in the public domain except where such availability is as a result of a breach of this Agreement;
- was known prior to the disclosure of the information by the other party;
- was already in the Client or L&A’s possession as evidenced by written documents prior to the disclosure thereof by the other party; or
- is required to be disclosed by an applicable law or court order.
9.4 The obligations imposed under this clause 9 will survive the termination of this Agreement.
10.1 Subject to clause 10.2, on and from the date of this Agreement, each party must not:
- make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any representative of any other party; or
- cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so.
10.2 Clause 10.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
- promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
- reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
11. Term and Termination
11.1 This Agreement shall start on the Commencement Date for the Service Term as specified in the Scope of Services unless the Agreement is terminated earlier as provided in this clause 11.
11.2 In the event that no notice is given by the Client to terminate this Agreement pursuant clause 11.4, this Agreement shall be automatically renewed for a further term period equal to the Service Term and shall continue until validly terminated.
11.3 In the event that there is a Minimum Term disclosed in the Scope of Services, termination of the Agreement by the Client may not occur before the expiry of the Minimum Term for any reason other than a termination for cause pursuant to clause 11.5.
Termination without cause
11.4 Either party may choose to either terminate the Agreement and/ or Scope of Services:
- Within the first 90 days of this Agreement, without cause by giving the other party 30 days prior written notice.
- After the first 90 days of this agreement, without cause by giving the other party 90 days prior written notice.
- At the end of the Service Term by providing written notice to the other at least 30 days prior to end date of the Service Term; or
- Without cause by giving the other party 90 days prior written notice.
Termination with cause
11.5 In addition to any other right or remedy provided by this Agreement or by law, each party will be entitled to terminate this Agreement and/or Scope of Services immediately by providing written notice to the other party if:
- the other party fails to pay any moneys when due within 60 days;
- the other party otherwise commits a breach of this Agreement and fails to remedy the breach within 14 days of receiving a written notice from the first party requiring the other party to remedy the breach; or
- the other party is insolvent, bankrupt, has entered into any form of administration, receivership or liquidation, whether voluntary or involuntary, formal or otherwise or is unable to pay its debts as and when they fall due.
Effect of termination
11.6 If this Agreement is terminated by L&A for cause, any licence granted to the Client under clause 5 will be terminated, except as set forth below. In the event of such termination:
- The Client will have the right to retain all Deliverables provided to it under this Agreement prior to L&A’s termination;
- The Client will remain liable to pay L&A an amount equal to the total of the number of hours that each of L&A’s employees incurred in providing the Services multiped by L&A’s then current hourly billing rates, plus an amount for out-of-pocket expenses incurred by L&A prior to termination;
- In addition to the preceding clause, the Client will remain liable to pay one-hundred and ten percent (110%) of the amount of any payment L&A is obliged to make to any third party who performed or was to perform any part of the Services or who provided or was to provide products or services for the benefit to the Client. L&A will credit against such amount any monies already paid by the Client. Any licenses granted to the Client under clause 5 will survive to the extent that the Client fulfils its obligations under this clause.
- If this Agreement is terminated by the Client for cause, any and all licenses granted to The Client under clause 5 will survive; the Client will pay L&A all accrued amounts due and payable to L&A for such Deliverables that have been approved by The Client pursuant to clause 4, or an appropriate pro-rata portion thereof; and, if L&A has received monies in excess of accrued amounts due and payable as set forth in this clause 11.6(d), L&A will refund such excess amount, within thirty (30) calendar days of the effective date of such termination.
11.7 If this Agreement is terminated for any reason, L&A will have the right to delete all L&A working files used for the provision of the Deliverables any time after 30 days from the Termination date.
11.8 Termination of this Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
11.9 The obligations of L&A under clause 1 (Definitions), clause 4 (Payment), clause 5.1 (Ownership), clause 7 (Trademarks), clause 11 (Term and Termination). clause 12 (Non-Solicitation), 13 (Intellectual Property), 14(Notices), and 15 (General) will survive the termination of this Agreement. Licenses as specified in clause 11.6 above will also survive the Agreement.
12.1 During L&A’s engagement with the Client under this Agreement and for then Non-solicitation Period (i.e. twelve (12) months thereafter), the Client must not, without L&A’s prior written consent (which L&A may withhold or delay in its absolute discretion), directly or indirectly:
- (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between L&A and any of L&A’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
- (non-solicitation of staff) induce, encourage or solicit any of L&A’s officers, employees, contractors or agents to cease their employment, engagement or agency with L&A.
- (non-solicitation of previous staff) induce, encourage or solicit any of L&A’s officers, employees, contractors or agents in the past twelve (12) months prior to their initial contact with Client.
13. Intellectual Property
13.1 In accordance with clause 5.1, the parties agree that all Relevant IP will be owned by, and vest in, L&A.
13.2 The Client hereby assigns, transfers and conveys to L&A all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in L&A on and from creation.
Consultant’s duty to assist L&A
13.3 The Client must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting L&A’s title to any Relevant IP, in Australia or in such other countries as L&A may require at its discretion.
13.4 The Client may not use or reproduce any Relevant IP or any other Intellectual Property Rights of L&A or any of L&A’s customers, clients or suppliers without L&A’s prior written approval, except in the proper provision of the Services and performance of its duties under this Agreement.
Disclosure of Relevant IP
13.5 The Client must immediately disclose in writing to L&A any Intellectual Property Rights that the Client makes, develops or conceives that might reasonably be regarded as Relevant IP.
13.6 The Client consents to the doing of any acts, or making of any omissions, by L&A or any of their respective employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
- not naming the Client as the author of a Work; or
- amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Client is not named as the author of the amended or modified Work, whether those acts or omissions occur before, on or after the date of this Agreement. The Client acknowledges that its consent pursuant to this clause 13.6 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.
13.7 The Client must not infringe any rights in any Intellectual Property of any third parties and must not, without proper authorisation, make any use of, or bring into L&A’s computer systems or onto L&A’s premises, any Intellectual Property of any third party.
14. Personal Infomormation Privacy
14.1 This clause applies to any personal information (as that term is defined in the Privacy Act 1988 (Cth)) which is:
- disclosed to L&A by the Client;
- collected by L&A on behalf of the Client; or
- otherwise handled by L&A in the course of providing the Services, (collectively, Personal Information).
14.2 L&A must not use or disclose any Personal Information except:
- as strictly necessary to perform the Services; or
- as otherwise expressly permitted in writing by the Client.
14.3 Upon completion of the Services or termination of this Agreement, L&A must cease using the Personal Information for any purpose and return all copies of the Personal Information to the Client.
15.1 Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if sent by registered post or any other registered postal service; or fax or email to the address of the party appearing on the Agreement. Any notices relating to disputes shall not be given by email, fax or other electronic means.
15.2 Any such notice or other document shall be deemed to have been received by the addressee three (3) Business Days following the date of dispatch of the notice or other document by post or, where the notice or other document is given by email or other electronic media, simultaneously with the transmission. To prove the giving of a notice or other document, it shall be sufficient to show that it was dispatched.
16.1 Each party must (at its own expense, unless otherwise provided in this Agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this Agreement.
16.2 This Agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
16.3 All costs and expenses in connection with the negotiation, preparation and execution of this Agreement, and any other agreements or documents entered into or signed pursuant to this Agreement, will be borne by the party that incurred the costs.
16.4 The Agreement constitutes the entire Agreement between the parties and contains all of the Agreements between the parties with respect to the subject matter hereof. This Agreement supersedes any and all other agreements, either oral or in writing (including any interim agreements executed by the parties), between the parties hereto with respect to the subject matter hereof. No change or modification of this Agreement will be valid unless the same be in writing and signed by an authorised officer of the Client and L&A, respectively.
16.5 If a provision of this Agreement is invalid or unenforceable in a jurisdiction whole or in part by any court:
- it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
16.6 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this Agreement.
16.7 Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that either party may assign this Agreement without the other party’s consent in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which more than fifty percent (50%) of the party’s voting shares are transferred.
16.8 This Agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
16.9 Delivery of an executed counterpart of this Agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
16.10 If a party delivers an executed counterpart of this Agreement under clause 16.8:
- it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this Agreement; and
- in any legal proceedings relating to this Agreement, each party waives the right to raise any defence based upon any such failure.
Governing law and jurisdiction
16.11 This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or Claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
16.12 The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or Claim that arises out of, or in connection with, this Agreement or its subject matter or formation (including non-contractual disputes or Claims).
16.13 If a dispute arises between the parties in connection with this Agreement, the parties undertake in good faith to use all reasonable endeavours to settle the dispute by way of good faith negotiation (including escalating the dispute to executive level), failing which, the parties agree to use all reasonable endeavours to settle the dispute by way of mediation by an independently appointed mediator as agreed between the parties.