These terms and conditions relate to the Activities and Services provided by Global RevGen Pty Ltd ABN 84 143 287 512 (Agency) and the client named on the Order (Client).
The Agreement is formed upon acceptance of an Order whether that be in writing, verbally or by conduct. In engaging the Agency for the Activities and/or Services the Client agrees that the relationship is subject to these terms and conditions effective from the date on the Order.
- 1. Definitions
Activities means such marketing actions, acquisitions, applications, campaigns or other form of payable events.
Advertising Material means any creative expression in writing, design, layout, video or graphic form including but not limited to advertising banners, display creatives, text advertisements and artworks.
Agreement means these terms and conditions, the Order and payment schedules.
Business Day a day that is not a weekend or a public holiday in New South Wales.
Force Majeure Event includes without limitation, fire, flood, water, the elements, acts of God, acts of war, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities, cyberattacks, virus or malware disturbances, pandemics, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications services, labour disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Order means the insertion order or media plan proposal provided by the Agency to the Client.
Services means media consulting services.2. Payment2.1. The fees for the Activities and Services will be set out in an Order.
2.2. Unless otherwise agreed in the Order:
a. the Agency will usually invoice the Client prior to the commencement of the Activities and/or Services;
b. payment of the invoice is due within 30 days of the date of the invoice.
2.3. Any invoices which are outstanding of the due date shall accrue interest at the rate of the current Commonwealth Bank of Australia standard overdraft rate (percentage per annum), calculated from the date the payment is due.
2.4. If the Client finds an error in the invoice, it shall promptly inform the Agency and promptly pay any undisputed portion of the invoice. The parties will otherwise cooperate in good faith to promptly resolve any disputed invoiced amounts.
2.5. The Agency’s failure to invoice the Client shall not constitute the waiver of any amounts due to the Agency by the Client.
3.1. Words and expressions which are not defined in the Order or these terms and conditions have the same meaning as in the GST Law.
3.2. Unless otherwise expressly stated, all fees, charges or other sums payable under an Order are exclusive of GST. The Client will pay the amount in addition to and at the same time that the consideration for the supply is to be provided under the Order.
4. Advertising terms
4.1. The Agency must use best endeavours to comply with reasonable advertising or editorial restrictions notified by the Client in advance of an Activity.
4.2. In the event that an Activity is run contrary to the Client’s editorial restrictions set out in clause 4.1, the Client must notify the Agency within 3 Business Days of the event. The Agency will make commercially reasonable efforts to correct the issue within 24 hours and if it is not required within 72 hours, the Client may immediately cancel such portion of the Order without penalty.
4.3. If the Client elects to track the number of Activities through its own tracking method, it agrees to provide the Agency with such reports as required by the Agency.
4.4. All numbers and amounts relating to conversions or leads contained in the Order are estimates only and are not at all guaranteed by either party. Due to the nature of advertising methods, over-delivery and under-delivery of Activities are typical.
4.5. In the event that the Agency over-delivers (i.e. the Client orders and pays for 200 Activities and Agency delivers 250 Activities) then the Client shall be liable for payment for the additional Activities up to one hundred and fifty per cent (150%) of the amount ordered.
4.6. The Agency will use best endeavours to process a Client’s request for Lead Scrubbing (defined below) as long as the Client has provided the Agency with (i) a list of invalid leads at least 3 Business Days before the end of the relevant calendar month; and (ii) all unique SubID identifiers associated with the leads in question and sufficient substantiation of the invalidity. Lead scrubbing is the term attributed to the process of removing invalid or fraudulent leads. Leads are deemed invalid or fraudulent if they are duplicates, include a fraudulent email address or constitute a credit card chargeback.
4.7. The parties acknowledge that the Agency uses third party media publishers to run Activities and as such, the parties agree that (i) they will be bound by the terms of those third party publishers, as updated from time to time; and (ii) any rebates or bonuses that the Agency receives from third party publishers are to the account of the Agency and may not be passed onto the Client.
5. Creative Control and Intellectual Property
5.1. The Client will be solely responsible for creating, managing, editing, reviewing, cancelling and otherwise controlling the Advertising Materials issued to the Agency.
5.2. The Client shall grant the Agency a limited, non-exclusive, worldwide licence to use the Advertising Materials for the purposes of this Agreement.
5.3. The Client agrees that the Agency may make amendments to the Advertising Materials including but not limited to resizing material appropriate for digital campaign activities. The Client shall ensure that it has obtained moral rights consent for the use, adaption or amendment of Advertising Material by the Agency.
6.1. The Agency shall undertake the Activities and Services with due care and skill.
6.2. The Client represents and warrants that it owns or has all necessary licenses and clearances to use and sublicence the Advertising Materials to the Agency for the purposes of the Activities and Services.
6.3. If you are a “consumer” for the purposes of the Australian Consumer Law, the Supplier is required to include the following statement as a result of the undertakings described in clause 6.1.
Our Activities and Services come with guarantees that cannot be excluded, restricted or modified under the Australian Consumer Law. For major failures with the Activities and Services, the Client is entitled to cancel the Activities and/or Services and seek a refund for the unused portion, or to be compensated for its reduced value.
If a failure with the Activities or Service does not amount to a major failure, the Client is entitled to have the failure rectified in a reasonable time. If this is not done the Client is entitled to a refund for the Activities and to cancel the contract for the Activity and/or Service and obtain a refund for the unused portion. The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Activities or Service. Our warranties are provided by Global Rev Gen Pty Limited, Address: Level 2, 383 George Street Sydney NSW 2000 Email: email@example.com. However, please be aware that the Australian Consumer Law permits the Agency to limit its liability in respect of the guarantees referred to above. Accordingly, to the maximum extent permitted by law, the Agency’s liability to the Client for breach of any such guarantee is limited at the Agency’s option to resupply the Activity or Service or payment of the cost of re-supplying the Activity or Service.
6.5. Subject to clause 6.4 and to the maximum extent permitted by law, the Agency hereby excludes all other conditions, warranties, guarantees or representations, express or implied, by statute, trade or otherwise. Without limiting the generality of the foregoing, the Agency specifically disclaims any warranty regarding:
a. the number of individuals who will see the content; and
b. any particular benefit that the Client might obtain from an Activity or Service.
6.6. Subject to clause 6.4 and to the maximum extent permitted by law, the Agency’s total liability under this Agreement whether for breach of this agreement, in tort (including negligence), or for any other common law or statutory cause of action shall be limited at the Agency’s option to any one or more of the following, as may be appropriate:
a. rectification or re-supply of the Activity or Service the subject of the claim; or
b. refund money paid by the Client for the Activities and/or Services the subject of the claim.
6.7. Any claim under this Agreement must be notified in writing to the Client within 6 months of the cause of action arising.
7. Limitation on Liability
7.1. In no event will either party be liable to the other party for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for business interruption, loss of opportunity, lost profits or lost revenue or the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.
7.2. Other than a breach of clause 6.2, neither party’s liability under this Agreement shall be greater than 12 months’ fees paid by the Client to the Agency hereunder.
8. Non-disclosure, data ownership, IP and privacy
8.1. Each party (the Receiving Party) agrees that any information related to the business activities of the other party (the Disclosing Party) is confidential, whether that information is marked as confidential or is confidential by its nature, including the pricing of Activities and Services, all trade secrets, know-how, processes, techniques, research, segment data, product development and all other information of a confidential nature in whatever form (Confidential Information).
8.2. The Receiving Party shall hold Confidential Information in trust and confidence for the Disclosing Party and shall not disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other person, unless specifically authorised by the Disclosing Party in writing. This obligation shall survive termination of the agreement. Notwithstanding the above, the Agency may use the Client’s name and the high level details of past campaigns as case studies for training, demonstration and promotional purposes.
8.3. Confidential Information does not include any particular information that the Receiving Party can demonstrate (i) is currently in the public domain, (ii) was previously known to the Receiving Party free from any obligation to keep it confidential, (iii) was or is publicly disclosed by or on behalf of the Disclosing Party either prior to or subsequent to the receipt of such information by the Receiving Party or (iv) is independently developed by the Receiving Party without any access to or use of Confidential Information of the Disclosing Party.
8.4. The Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so under applicable law or stock exchange listing.
8.5. Where the Client provides personal information to the Agency (eg contact lists), the Client warrants that it has obtained all necessary consents that are required under the Privacy Act 1988 (Cth) for the Agency to use and disclose any personal information for the purposes of the Activities and/or Services under this Agreement.
8.6. The Agency may disclose personal information to its contractors, suppliers and other third parties which may be located outside of Australia. The Agency will only disclose personal information relevant for the purposes of the Activities, Services, reporting and account management.
8.7. If the Agency uses a “tracking pixel” as part of its Activities or Services, it will use best endeavours to ensure that the pixel does not collect personal information (as that term is defined in the Privacy Act (Cth) 1988).
8.8. The parties hereby represent and warrant that they shall at all times fully comply with the SPAM Act 2003 (Cth). In the event that the Client requests distribution of its campaigns via email, the Client agrees to provide a regularly updated suppression list to the Agency containing current unsubscribe requests and comply with clause 8.5.
8.9. The know-how and campaign creation of the Activities and Services are the proprietary information of the Agency. The Agency may provide reports to the Client regarding the outcome of the Activities and Services however the Client is not entitled to have access to any account created by the Agency.
9.1. Cancellation of a campaign must be given in writing before the media Activity has been booked otherwise payment will be due and payable.
9.2. The Client may terminate this Agreement upon providing 14 Business Days notice in writing to the Agency. The Agency may terminate this Agreement upon providing 7 Business Days’ notice in writing. In either case, the Client shall remain liable for all costs for the Activities and/or Services incurred up until the termination date.
10. Force Majeure
10.1. Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by a Force Majeure Event. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
10.2. To the extent that a Force Majeure Event has continued for 10 Business Days, the Client or the Agency has the right to cancel the remainder of the Order without penalty.
11.1. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of New South Wales and the parties submit to the jurisdiction of the courts of the State of New South Wales.
11.2. The parties are independent contractors and expressly acknowledge that no agency, partnership, joint venture or employer-employee relationship is intended or created hereby.
11.3. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter and may be changed only by a subsequent agreement in writing signed by both parties. Subject to clause 4.6, in the event that a party attempts to impose other terms and conditions, the terms of the Agreement shall prevail.
11.4. In the event of any inconsistency between the terms of an Order and these terms and conditions, the terms of the Order shall prevail to the extent of any inconsistency.
11.5. The Agency can assign this Agreement in whole or in party without the Client’s prior written consent. The Client can not assign this Agreement without the Agency’s prior written consent which will not be unreasonably withheld.
11.6. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
11.7. If a provision of this Agreement would be unenforceable, (i) the provision must be read down to the extent necessary to avoid that result; and (ii) if the provision cannot be read down to that extent, it must be severed without altering the enforceability of the remaining provisions of this Agreement.
11.8. All rights and remedies hereunder are cumulative. Any notice required to be delivered hereunder shall be delivered 3 days after deposit in an Australian postal service, 1 Business Day if sent by overnight courier service, and upon delivery receipt if sent electronically. All notices to Agency and Client shall be sent to the contact as noted in the Order.
Agency – Global RevGen Pty Ltd.
Client – INSERT CLIENT HERE
Print Name: ________________