1. Interpretation
- 1 Definitions:
‘Agreement’ means this agreement.
‘Client’ means the entity or individual that engages the services of the marketing agency (“I.M.A”) under this Agreement
‘Claim’ means against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
‘Confidential Information’ means:
- this agreement;
- any and all intellectual property of either party;
- information and documents regarding costs, profits, markets, sales and other financial information; and
- any other information and documents disclosed by either party that is identified as being confidential or would be apparent to a reasonable person that such information was disclosed in confidence by the disclosing party.
‘Deliverables’ mean the final goods & services provided by I.M.A to the Client under this Agreement.
‘Fees’ mean the fees for the provision of the goods and services which result in and include the Deliverables
‘Force Majeure Event’ means in respect of a party any act, event or cause (other than lack of funds) which is:
- beyond the reasonable control of;
- not caused or contributed to by any fault, act or omission of; and
- could not have been prevented, overcome or remedied by the exercise of care and diligence by, that party, including but not limited to:
- act of God, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, epidemic, pandemic (including but not limited to COVID 19 Orders) quarantine, radiation or radioactive contamination;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and executive or administrative order or act of either general or particular application of an Authority;
- action or inaction of any Authority, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
- strikes, lock-outs, work-to-rule actions, or other industrial action or labour disputes if in each case of a nation, state or industry wide nature.
‘Materials’ means any words, documents, literature, copy, questionnaires, fonts, pictures, photographs, drawings, artwork, story boards, designs (including graphic designs), devices, promotional items, samples, representations, films, tapes, sound recordings, domain names, website content, data, software or other things or materials in any media and all modifications, updates, adaptations and amendments thereto provided by or on behalf of one party to the other;
‘Statement of Works’ means goods and services requested by the Client and which I.M.A agrees to provide in accordance with this Agreement.
‘Taxable Supply’ and ‘Tax Invoice Input Tax Credit’ and ‘GST’ have the same meaning as set out in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. Engagement
2.1 The Client engages I.M Advertising Pty Limited (ABN 98 108 292 324) of Level 2, Suite 222, 4 Hyde Parade, Park Central Campbelltown NSW 2560 (I.M.A) to provide Deliverables as set out in this Agreement.
3. Provision of Deliverables
3.1 I.M.A will provide the Deliverables in a diligent and professional manner and in accordance with the Statement of Works
3.2 I.M.A will provide and deliver the Deliverables in accordance with the Statement of Works and the terms of this Agreement.
3.3 As soon as practicable after becoming aware of any matter which is likely to cause a significant delay or impediment in I.M.A discharging an obligation under this Agreement I.M.A will notify the Client in writing of the cause and likely duration of the delay or nature of the impediment. I.M.A must make all reasonable endeavours to minimise any delay. I.M.A retains sole discretion in determining what constitutes a matter that is likely to cause significant delay or impediment.
4. Compliance
4.1 The Client acknowledges that the Deliverables have not been prepared as cleared for print, broadcast or any other method of publication. Any use of the Deliverables provided to the Client for the purposes of print, broadcast or any other method of publication will be at the Client’s own risk.
4.2 Unless specified otherwise in the Statement of Works (including as a Client responsibility) I.M.A will be responsible for obtaining all releases from actors, artists, photographers, models, musicians, athletes, professionals and/or any other persons or talent required to produce the Deliverables if required.
4.3 If any other checks or approvals are required in connection with the Deliverables (including police or working with children checks) the requirement and the responsible party will be set out in the Statement of Works.
4.4 I.M.A will comply with all brand guidelines provided to it by the Client.
5. Client Responsibilities and Approval
5.1 The Client will be responsible for providing the Materials and carrying out the tasks as set out in the Statement of Works.
5.2 The Client will be responsible for obtaining approval for any product claims made within the Deliverables produced by I.M.A.
5.3 I.M.A must submit to the Client for written approval, the creative material, press releases, articles, photographs and captions, copy, layouts, and artwork and scripts relating to the goods and services prior to incorporating these into the Deliverables.
5.4 Deliverables will be submitted by I.M.A to the Client for final approval.
5.5 The Client will carry out its responsibilities in this Agreement (including but not limited to review of Material and Deliverables submitted for approval) expeditiously and so as not to delay I.M.A’s performance of the goods and services. Where the Client causes a delay, the final delivery date will be extended by the period of the delay and I.M.A may (at its sole discretion) charge the Client for any additional time spent or expense incurred due to the delay
6. Warranties and Indemnities
6.1 The Client warrants to IMA that:
- the Client is the sole proprietor of, or is licenced to use, any Materials provided to I.M.A by the Client;
- the Materials provided by the Client do not infringe any existing copyright or intellectual property rights of third parties; and
- the Materials provided by the Client do not contain anything which is libelous, defamatory or otherwise illegal.
6.2 The Client indemnifies I.M.A, its servants and agents, and each of them against all Claims, suits,
causes of action and demands which I.M.A may have arising out of, relating to or in connection with,
a breach of this Agreement of whatsoever nature (including any legal costs or expenses properly
incurred) occasioned to I.M.A in consequence of any breach or act of negligence by the Client in
relation to any term or warranty of this Agreement.
6.3 Unless otherwise disclosed to the Client, I.M.A warrants that the content contained within the
Deliverables will be original work product created by I.M.A for the Client pursuant to this Agreement.
If I.M.A uses any content within the Deliverables that was or has been created by any third party (‘Third
Party Content’), I.M.A further warrants the Client that I.M.A has obtained all suitable permission and
or licence to use the Third Party Content from the rightful owner. For the purpose of this sub clause
6.3 only, I.M.A indemnifies the Client, limited to the value of the fees charged by I.M.A, against any
Claims which the Client may have received from the true owner of the Third Party Content arising
directly out of the use of that Third Party Content by the Client.’
6.4 The Client warrants that any contact lists, personal data or other information (“Data”) provided to the
Agency has been collected and is provided in compliance with the Privacy Act 1988 (Cth), including
the Australian Privacy Principles. The Client further warrants that all individuals whose Data is included
have given appropriate and informed consent for the Data to be shared with the Agency and used for
marketing purposes. The Client indemnifies the Agency against any claim, cost, loss or liability
arising from a breach of this warranty, including any failure to obtain valid consent or comply with
applicable privacy laws. The Agency will take reasonable steps to safeguard any Data provided,
including restricting access to authorised personnel and notifying the Client promptly in the event of
any actual or suspected data breach.
7. Fees and Expenses
7.1 Fees may be presented on a project or retainer basis. The Client must pay the Fees to I.M.A on presentation of an invoice and within 30 days of receipt.
7.2 The Fees include the budgeted expenses set out in the initial project scope or statement of work (Budget). I.M.A will manage the Budget and, subject to clause 8, any variation between the Budget and actual third party expenses incurred in providing the goods and services is I.M.A’s responsibility.
7.3 The Client acknowledges and agrees that the provision of the goods and services may be subject to Force Majeure Events, in which case clause 12 applies.
7.4 Except where express provision is made to the contrary, and subject to this clause, any amount that may be payable under the project scope/statement of works is exclusive of GST. If the one party (Payee) makes a Taxable Supply in connection with the Project Agreement then the other party (Payor) must also pay, at the same time and in the same manner the amount of any GST payable in respect of the Taxable Supply. The Payee’s right to payment under this clause is subject to a valid Tax Invoice, or an adjustment note as appropriate, being delivered to the Payor.
7.5 If any party reimburses another for any expense incurred in connection with any Taxable Supply made under or in connection with the Statement of Works, the amount payable will equal the cost of the expense less any Input Tax Credit available in connection with that expense plus GST.
8. Variation Process
8.1 I.M.A is entitled to seek a variation to the Fees if the Client:
- requests a change to the goods and services (including the Deliverables); or
- requires I.M.A to acquire goods or services that are not part of the Budget or alters a budgeted requirement so that I.M.A is required to incur more cost; and
- the variation is not due to:
- a Force Majeure Event, in which case clause 12 applies; or
- a contingency that is caused by the client.
- Before varying the goods and services or the Budget IMA will provide the Client with a quotation detailing the cost and effects of the proposed variation.
8.2 On receipt of the quotation the Client, if it wishes the variation to proceed, must approve the variation in writing. I.M.A will not be required to make any variation without the Client’s prior written approval.
8.3 The Fees for varied goods and services will be in accordance with the quotation or as otherwise agreed in writing between the parties.
8.4 Where a contingency arises that is caused by the Client, I.M.A is authorised by the Client to apply a further contingency fee that will form part of the Fees. I.M.A retains the sole discretion to determine the amount of the contingency fee.
9. Intellectual Property
9.1 Subject to clause 9.2, I.M.A assigns all Intellectual Property in the Deliverables to the Client on payment of the Fees or, where the Fees are to be paid in instalments, the final instalment of the Fees. I.M.A will not be required to release final masters of the Deliverables until such payment is received.
9.2 Nothing in this clause 9 affects the ownership of any pre-existing Material. Upon the assignment of Intellectual Property under clause 9 I.M.A grants the Client a permanent, irrevocable, royalty- free nonexclusive licence to use, reproduce, adapt, modify, publish and exploit within Australia any preexisting Material provided by it and incorporated in the Deliverables.
9.3 The Client grants I.M.A a licence to use, reproduce, adapt, modify and publish any Material provided by the Client under this Agreement for inclusion in the Deliverables solely for the purpose of I.M.A performing its obligations under this Agreement.
10. Termination
10.1 Either party may terminate this Agreement by providing fourteen (14) days written notice
10.2 The effect of any termination made under this clause 10 will be that:
- any prepaid Fees will not be refunded.
- the Client is responsible for payment for all goods and services provided (including work in progress costs) up to the date of termination, including any expenses incurred from the Budget up to that date or which cannot be cancelled by I.M.A (Termination Costs). I.M.A will invoice the Client for the Termination Costs (less any prepaid Fees)
10.3 Either party may terminate this Agreement if the other breaches any material term of this Agreement and fails to remedy the breach within thirty (30) days of notice specifying the breach.
10.4 Either party may terminate this Agreement immediately by giving notice to the other party if:
- the other party ceases to carry on business;
- any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the other party’s assets or business;
- any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party’s assets or business;
- the other party disposes of the whole or any part of its assets, operations or business other than in the normal course of business; or
- the other party ceases to be able to pay its debts as they become due and payable.
10.5 Termination by either party is without prejudice to any accrued rights or remedies of that party and will not release the other party from liability in respect of any breach or non-performance of any obligation.
10.6 Special Conditions
This clause 10.6 only applies where there are Special Conditions set out in an accompanying annexure marked “Annexure”A” to Standard Terms and Conditions”. If there is any inconsistency between the Terms and Conditions (as set out in clauses 2 to 10) and the Special Conditions, then the terms of the Special Conditions will prevail to the extent of that inconsistency.
11. Confidentiality
11.1 A party must not disclose Confidential Information disclosed to it by the other except:
- with the prior written consent of disclosing party; or
- in accordance with the terms of this agreement.
11.2 A party may use, copy, reproduce or otherwise deal with the Confidential Information disclosed to it only during the term of this agreement and in a manner that is related to including all cache, back-up or archive copies of electronic files containing Confidential Information.
11.3 Unless otherwise agreed the obligation of confidentiality set out in this agreement operates for a period of two (2) years after termination.
12. Force Majeure
12.1 If a party is prevented in whole or in part from carrying out its obligations under this document as a result of a Force Majeure Event (Affected Party) it must as soon as practicable notify the other party accordingly in writing.
12.2 If the parties agree that the Force Majeure Event has resulted in the obligations of this agreement to be unable to be performed:
- the Affected Party is not liable for any failure or delay in performing the obligations imposed on it under this document; and
- the Affected Party’s obligations under this document are suspended, to the extent to which they are affected by, and for the duration of, the Force Majeure Event,
other than an obligation to pay money which has become due and payable (unless otherwise agreed upon by the parties).
13. Governing law
13.1 The law in force in the State of New South Wales governs this agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeal from those courts in respect of any proceedings in connection with this agreement.