Terms and Conditions

Terms and Conditions 

Refer to clause 18 for defined terms 

1. AGREEMENT AND APPOINTMENT

1.1      You appoint us as your contractor to provide the Advertising Services in accordance with the Agreement, and we accept that appointment. 

1.2      Upon execution of a Schedule by the parties, they will be deemed to have entered into an Agreement for the provision of Advertising Services comprising these Terms and Conditions, the Schedule, and any Referenced Documents. 

1.3      The Agreement is effective from the Commencement Date and continues for the Term, unless terminated earlier in accordance with the Agreement. 

1.4      The Agreement will expire at the end of the Term unless: 

(a)      it is renewed for a further period if and as specified in the Schedule or agreed in writing by the parties; or 

(b)      you continue to instruct us, we continue to provide, and/or you continue to accept, Advertising Services (or any part of them or similar services), in which case the Agreement will (unless otherwise specified in the Agreement or agreed in writing by the parties) continue until terminated on 30 days’ written notice by a party. 

1.5      In the event of any inconsistency between any documents constituting the Agreement, unless otherwise specified they shall apply in the following descending order of precedence: the Master Agreement (excluding these Terms and Conditions), the Schedule, the Terms and Conditions, and any Referenced Documents. 

2. CLIENT APPROVAL

2.1      In the course of the performance of the Advertising Services and as industry best practice we may from time to time request specific Approval for Deliverables, Third Party Supplies or other elements of the Advertising Services, in which case: 

(a)      we will (as applicable) provide details or copies of the Deliverables, Third Party Supplies or Advertising Services and any other relevant information to you; 

(b)      you must not unreasonably withhold or delay your Approval; and 

(c)      where we require your Approval, or have agreed that an Approval should be provided, in a specific form (such as in writing using a particular document such as our written quotation), we will be entitled to proceed on the basis that Approval has not been provided until given in that form. 

2.2      Your Approval of: 

(a)      copy, layouts or artwork constitutes your authority for us to purchase production materials and prepare final designs accordingly; 

(b)      final designs constitutes your authority for us to publish using those designs; 

(c)      storyboards constitutes your authority for us to enter into production contracts and engage performers accordingly; and 

(d)      films and recordings constitutes your authority for us to transmit, broadcast, distribute and/or publish them in accordance with your instructions. 

2.3      You agree to provide us with clear, timely written instructions when we require them in relation to the Advertising Services (including for all campaigns), and to promptly comply with any reasonable request by us for any facts or Materials necessary for the provision by us of the Advertising Services. 

2.4      A Schedule executed, or an Approval given, by the Authorised Representative on your behalf will be deemed to have been executed or given by you. 

2.5      We will have no Liability for failing to acquire any Third Party Supplies if you fail to provide your Approval and/or pay the Fees in respect of those Third Party Supplies as and when requested by us. 

3. SERVICES

3.1      We will provide the Advertising Services in accordance with the Agreement. 

3.2      We may engage any third party to supply Third Party Supplies in connection with the provision of the Advertising Services as contemplated by the Agreement or any Approval. 

3.3      We will use all reasonable endeavours to adhere to any timeframe specified in the Agreement or any Approval, however unless the Agreement otherwise specifies, time will not be of the essence in the performance of the Advertising Services. 

3.4      You may request that we provide Additional Services, in which case we will discuss the Additional Services with you and any fees payable for them, and we may agree to provide such Additional Services in our absolute discretion. 

3.5      Where we agree to provide Additional Services we may require that you execute a further Schedule relating to those Additional Services and/or require your Approval in writing in some other form before we commence providing those Additional Services. 

4. FEES

4.1      During the Term, you must pay us the Fees in accordance with the Payment Terms. 

4.2      Subject to anything to the contrary that we have, in writing, notified you or agreed: 

(a)      if you have paid in advance for Advertising Services or Third Party Supplies that have not been provided at the time that payment is made (Prepaid Fees), then those Prepaid Fees may be applied toward payment for Advertising Services or Third Party Supplies provided to you within 12 months of the date of payment to us of those Prepaid Fees; 

(b)      if you have not instructed us to apply any Prepaid Fees in payment toward specific Advertising 

 

(c)      Services or Third Party Supplies within the period referred to in clause 4.2(a), then we may without further notice to you unconditionally retain those Prepaid Fees and you will have no entitlement to a refund of (or to receive any goods or services for) them; 

(d)      if the Schedule states (or we have notified you in writing, you have Approved, or it is otherwise evident or apparent) that the Fees payable for certain Advertising Services or Third Party Supplies will be a fixed amount (Fixed Fees), then the Fixed Fees will be payable by you for those Advertising Services or Third Party Supplies irrespective of their actual cost, and you will have no entitlement to a refund of (or to receive any goods or services for) any Fixed Fees paid that exceed such costs; and 

(e)      notwithstanding that Fixed Fees were to be payable under the Agreement for certain Advertising Services or Third Party Supplies, we may increase the Fees proportionally to compensate us for the increased costs we incur should, in our reasonable opinion, those costs substantially increase due to your instructions or unforeseen circumstances beyond our control. 

5. REVIEW AND REPORTING

5.1      The parties will meet in the manner and at the times or frequency specified in the Agreement (or, if not specified, by their Personnel in person after each campaign) to review and discuss our performance under the Agreement. 

5.2      We will provide you, at the times or frequency specified in the Agreement, such reports as are specified in the Agreement, and any other reports as we consider reasonable and practicable from time to time. 

6. INTELLECTUAL PROPERTY

6.1      Nothing in the Agreement will be taken to constitute a transfer, assignment or grant of any ownership rights in any Client Materials, Agency Assets or Third Party Materials (each of which will be retained by the relevant owners), unless otherwise expressly stated. 

6.2      We either (as specified in the Agreement, or if not specified then clause 6.2(a) will apply): 

(a)      grant you an exclusive, non-transferable licence to use the Deliverables subject to any Use Limitations for the Deliverables (or, if no Use Limitations are specified, for the purposes contemplated by the Agreement within Australia during the Term); or 

(b)      absolutely assign, and must use reasonable commercial endeavours to procure that all subcontractors and third party suppliers assign, all right, title and interest in all Intellectual Property Rights that we or they (as applicable) own in any Deliverables to you free of any encumbrances, subject to any Use Limitations for the Deliverables (or, if no Use Limitations are specified, unconditionally). 

6.3      You may, by written notice to us, request that we permit you to use or exploit the Deliverables outside the scope of any licence or assignment under clause 6.2 (identifying in that notice any desired period of time, territory, campaign, execution and/or media), in which case: 

(a)      we will enter into good faith negotiations with you with a view to agreeing terms upon which you may be granted (or we may assist you to obtain or procure) the further rights requested (including the fees, if any, that will be payable); and 

(b)      any agreement under this clause 6.3 must be documented in a written contract between the parties. 

6.4      If and to the extent that any Agency Assets are combined with, or are required in order to use, any Deliverables, we grant you a non-exclusive, non-transferable licence to use the Agency Assets as necessary in order to use any Deliverables as permitted by the Agreement and subject to any Use Limitations for the Agency Assets. 

6.5      Clauses 6.2, 6.3 and 6.4 are subject to you paying all Fees in accordance with the Agreement. 

6.6      You must not (and must not authorise any third party to) directly or indirectly use or exploit the Deliverables, Agency Assets or Third Party Materials outside the scope of any licence or assignment without our prior written consent, and must immediately cease use of and return the Deliverables, Agency Assets and Third Party Materials (and if applicable you will be deemed to have re-assigned the Deliverables) to us upon expiry of any time limitation or campaign (if and as applicable, as specified in the Agreement). 

6.7      You must notify us prior to directly or indirectly using or exploiting any Deliverables, Agency Assets or Third Party Materials, or authorising any third party to do so (including without limitation by booking media containing such materials), other than pursuant to an Agreement or other arrangement with us. 

6.8      You grant us a non-exclusive, perpetual, irrevocable, free, worldwide licence to use any Client Materials and Deliverables for the purpose of providing the Advertising Services, and to publicise or promote our services (including without limitation use on our website and in marketing material and in connection with our entry into industry events, award programs and competitions). 

6.9      We must use reasonable commercial endeavours to obtain in your favour on reasonable commercial terms: 

(a)      an assignment or an exclusive licence; or 

(b)      if we are unable to secure an assignment or an exclusive licence under clause 6.9(a), a non-exclusive licence, 

of all necessary rights (including without limitation any Intellectual Property Rights) for the use of the Third Party Materials as contemplated by the Agreement (where any fees payable to the third party will constitute Third Party Fees). 

6.10    Clause 6.9 is subject to any provision of the Agreement or an Approval agreed by us which requires us to acquire a specific licence or assignment of particular Third Party Materials. 

6.11    If clause 6.9(b) applies, we will (if required by you and at your expense) use reasonable efforts to assist you to obtain an assignment or exclusive licence directly from the relevant third party. 

6.12    All right, title and interest in all Intellectual Property Rights in any Proposal Materials belonging to us will remain or be vested in us and all Proposal Materials are deemed to constitute our Confidential Information until any Proposal Materials are included in a Deliverable (at which time clause 6.2 applies). 

6.13    The Proposal Materials will be deemed to be included in or constitute Deliverables only if and to the extent they are Accepted by you and form part of the Advertising Services. 

6.14    On request by you, we will (at your cost) use our best commercial endeavours to procure upon reasonable commercial terms the consent from the author of each part of the Deliverables for you to perform any activity in relation to the Deliverables permitted by the Agreement, including activity which would otherwise infringe the Moral Rights of that author, and including without limitation permission to: 

(a)      reproduce, copy, alter, change, publish and distribute the relevant Deliverables; 

(b)      claim authorship of the relevant Deliverables; and 

(c)      omit to acknowledge the contribution of the author to the relevant Deliverables. 

7. INFRINGEMENT

7.1      Each party must immediately notify the other party if it becomes aware of any Third Party Claim. 

7.2      Each party must: 

(a)      reasonably cooperate with the other party in respect of any negotiations or defence regarding a Third Party Claim and provide to the other party such reasonable assistance or documentation as is requested by the other party in that regard (at your cost if you are responsible for the infringement or breach giving rise to the Third Party Claim); 

(b)      promptly provide the other party with updates regarding the status of the Third Party Claim upon reasonable request; and 

(c)      not settle or consent to orders in relation to any Third Party Claim without the prior written consent of the other party, which consent must not be unreasonably withheld. 

7.3      In the event of a Third Party Claim we will be entitled to procure for you the right to continue to use the relevant Deliverables or Advertising Services, or modify them in a manner reasonably acceptable to you, so that the infringement or breach or alleged infringement or breach ceases. 

7.4      If we decide (acting reasonably) that you are not satisfactorily defending a Third Party Claim that may adversely affect us, we may opt to defend the Third Party Claim ourselves by written notice to you, in which case you must promptly transfer the conduct of the Third Party Claim to us. 

8. CONFIDENTIAL INFORMATION

8.1      Subject to clause 8.2, each party: 

(a)      must keep confidential all Confidential Information of the other party; 

(b)      may use or disclose Confidential Information of the other party solely for the purposes of the Agreement; and 

(c)      may disclose Confidential Information of the other party only: 

(i)       to employees and contractors who: 

(A)     are aware and agree that the Confidential Information of the other party must be kept confidential; and 

(B)     either have a need to know (and only to the extent that each has a need to know) the Confidential Information, or have been specifically approved by the other party; or 

(ii)      as required by Law or stock exchange regulation. 

8.2      A party is not obliged to comply with clause 8.1 in relation to Confidential Information of the other party if: 

(a)      the Confidential Information was already in the other party’s possession or control and was not acquired directly or indirectly from the first party; 

(b)      the Confidential Information becomes public knowledge during the Term; or 

(c)      the other party became aware of that Confidential Information from a third person, 

in circumstances where there was no breach of any obligation of confidence. 

8.3      Each party must notify the other party immediately once it becomes aware of any breach of confidentiality regarding the other party’s Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information. 

9. WARRANTIES

9.1      Each party warrants and represents that it has full power and authority to execute the Agreement and to perform and observe all of its terms and conditions, and that the Agreement is binding on it and enforceable in accordance with its terms. 

9.2      You warrant and represent that: 

(a)      the use by us of any Client Materials in accordance with the Agreement will not infringe the rights (including Intellectual Property Rights) of any third party; 

(b)      the Client Materials will not contain any Material that: 

(i)       is false, misleading or deceptive or likely to mislead or deceive; 

(ii)      is illegal, contrary to or in breach of any Laws; 

(iii)     is contrary to any applicable Advertising Codes, Industry Codes, or the requirements of any Authority; 

(iv)     is indecent, obscene, offensive, objectionable, threatening, discriminatory, harassing, defamatory, libellous, or in breach of confidence or any other obligation owed to a third party; 

(v)      contains any virus or other malicious software; or 

(vi)     would require us to hold any financial services or other licence; and 

(c)      the payment of any Prepaid Fees to us is authorised by you and does not contravene any of your policies. 

9.3      We warrant and represent that: 

(a)      we will perform the Advertising Services with due care and skill; 

(b)      we have knowledge of best industry practices and procedures as appropriate to undertake the Advertising Services; and 

(c)      we will use our best endeavours to ensure that: 

(i)       except to the extent advised to you, our provision of the Advertising Services and the Deliverables will not infringe the rights (including Intellectual Property Rights) of any third party; and 

(ii)      the Deliverables will not contain any Material that: 

(A)     is in breach of confidence or any other obligation owed to a third party; 

(B)     is false, misleading or deceptive or likely to mislead or deceive; or 

(C)     contains any virus or other malicious software (achieved through our use of appropriate antivirus software). 

9.4      While we will use our reasonable endeavours in accordance with industry standards to provide Advertising Services that comply with all applicable requirements and achieve your desired outcomes, you expressly acknowledge and agree that we make no warranties or representations: 

(a)      that the Advertising Services, Deliverables or Third Party Supplies will comply with all Laws, Advertising Codes, Industry Codes, or the requirements of any Authority, or that any necessary or desirable approvals and releases have been obtained, however if the Agreement provides for (or you have Approved) us to engage the services of a legal adviser to provide advice on such matters, then we will procure such advice for your benefit; or 

(b)      in respect of the commercial success or otherwise of any Advertising Services, media, marketing, advertising campaign, promotion or advertisement, and you are not entitled to any reduction in Fees if the Advertising Services result in a level of commercial or other success that is lower than anticipated or described in the Agreement. 

9.5      You indemnify, and must defend and hold harmless, us and our Personnel from and against all Liability arising directly or indirectly from: 

(a)      any breach by you of the Agreement (including specifically but without limitation clauses 6.6 and 7) or the warranties in clauses 9.1 or 9.2; 

(b)      any negligent, wilful, fraudulent, dishonest or otherwise wrongful act or omission by you or any of your Personnel; 

(c)      the issue of any direction or instruction by you to us; and 

(d)      the death of, or personal injury to, any person, or any damage to or destruction of any property, to the extent caused by any act or omission of you or any of your Personnel. 

10. INSURANCE

10.1    Each party must effect (prior to the commencement of the Advertising Services) and maintain (throughout the Term and during any further period specified in the Schedule) the Required Insurance. 

10.2    Each party will promptly provide certificates of currency for the Required Insurance to the other party upon reasonable request by the other party. 

10.3    We may refuse to provide Advertising Services until you satisfy us that you have complied with clause 10.1 by responding to our request in accordance with clause 10.2. 

11. PRIVACY

11.1    We may collect Personal Information for the purpose of providing the Advertising Services and occasionally other purposes, such as to invite clients to functions or events. 

11.2    We do not usually disclose Personal Information to other organisations (including overseas recipients, to which we are generally unlikely to disclose Personal Information) unless necessary for the provision of the Advertising Services or if Approved by you. 

11.3    Our ability to provide services may be affected if we are not provided with all Personal Information we request. 

11.4    Our Privacy Policy contains information about how an individual may access his or her Personal Information held by us, may seek the correction of such information, and may complain about a breach of the Australian Privacy Principles under the Privacy Act (and how we will deal with such a complaint). 

11.5    If you disclose Personal Information to us, you must: 

(a)      ensure that you comply with the Privacy Act in respect of that Personal Information; and 

(b)      take reasonable steps to notify the individual to which that Personal Information relates (before disclosing that Personal Information to us or as soon as practicable afterwards) of: 

(i)       the fact that we have collected it and the circumstances of that collection, together with our identity and contact details; and 

(ii)      the matters referred to in clauses 11.1 to 11.4 inclusive. 

12. NON-SOLICITATION

If, during the Term or within 12 months after the termination or expiry of the Agreement, without our written consent: 

(a)      you induce or solicit (directly or indirectly) an employee or contractor of ours who is working directly or indirectly in relation to the Advertising Services to leave our employment or engagement; or 

(b)      an employee or contractor of ours who is working directly or indirectly in relation to the Advertising Services commences employment (in any capacity) or is otherwise engaged (in any capacity) by you (or any related or associated entity of yours), 

you must pay us a recruitment fee of 40% of the annual gross salary or average annual contract fee (based on the previous 12 months) of that employee or contractor within 30 days after the date that the employee or contractor leaves our employment or engagement. 

13. TERMINATION

13.1    Either party may terminate the Agreement at any time without cause by notice in writing to the other party, if permitted to do so under the Schedule. 

13.2    Without limiting its other rights, either party (Terminating Party) may terminate the Master Agreement, or this or any other Agreement under the Master Agreement, with immediate effect by written notice to the other party (Defaulting Party) if: 

(a)      the Defaulting Party commits a breach of any material provision of the Master Agreement or an Agreement and fails to remedy that breach within 14 days after receiving a notice from the Terminating Party requiring it to do so; 

(b)      the Defaulting Party commits a breach of any material provision of the Master Agreement or an Agreement which is incapable of remedy in the Terminating Party’s reasonable opinion; 

(c)      you are the Defaulting Party and you commit a breach of any provision of the Master Agreement or an Agreement and fail to remedy that breach within 21 days after receiving a notice from us requiring you to do so; or 

(d)      the Defaulting Party becomes subject to any form of Insolvency Administration. 

13.3    Termination of the Master Agreement or an Agreement will not affect any accrued rights or remedies a party may have as at the date of termination, unless explicitly stated otherwise in the Agreement. 

13.4    Upon expiry or termination of the Agreement: 

(a)      all Fees incurred, including for Advertising Services rendered and Third Party Fees incurred or which we are bound to pay, will be immediately due and payable by you; 

(b)      we may charge a reasonable sum for work performed for which no sum has been charged (on a pro-rata basis for Advertising Services performed up to the date of termination, if applicable); and 

(c)      clauses 6 to 9, 10.1, 12 to 15, 17 (in each case inclusive) and any other provisions of the Agreement which by their nature survive termination will continue. 

14. DISPUTE RESOLUTION

14.1    Neither party may commence court proceedings in respect of a dispute arising out of the Agreement (Dispute) until it has complied with this clause 14. 

14.2    A party claiming that a Dispute has arisen must notify the other party in writing, setting out details of the Dispute. 

14.3    During the 7 day period after a notice is given under clause 14.2 (Initial Period) each party must use its best efforts to resolve the Dispute. 

14.4    If the parties are unable to resolve the Dispute within the Initial Period (or any extension of that period agreed in writing) then: 

(a)      they must within a further 7 days appoint a mediator to mediate the Dispute; or 

(b)      if the parties fail to agree on a mediator within that time, either of them may refer the Dispute for mediation to a mediator nominated by the then current president of the Law Society of South Australia, 

and the parties must thereafter mediate the Dispute. 

14.5    The terms on which the mediation is conducted and the procedure for the mediation will unless otherwise agreed in writing between the parties and the mediator be those prescribed by the Rules and Practice Directions of the Supreme Court of South Australia from time to time. 

14.6    Unless otherwise agreed in writing between the parties the mediation will be conducted in Adelaide, Australia. 

14.7    Each party must bear its own costs of resolving a Dispute in accordance with this clause and the parties must unless otherwise agreed bear equally the fees and proper out of pocket expenses of the mediator and any other third party expenses related to the mediation. 

14.8    Nothing in this clause 14 shall prevent the making of an application to the court by any party to the Dispute for urgent injunctive or declaratory relief. 

15. LIABILITY

15.1    We do not exclude or limit the application of any provision of any statute (including the CCA) where to do so would contravene that statute or cause any part of this clause to be void. 

15.2    We exclude: 

(a)      from the Agreement all conditions, warranties, guarantees and terms implied or imposed by statute, general law, international convention or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (Non-Excludable Condition); 

(b)      all liability to you in contract for consequential or indirect damages arising out of or in connection with the Agreement, even if we knew they were possible or they were otherwise foreseeable, including without limitation, lost profits and damage suffered as a result of claims by any third person, such as a customer of yours; and 

(c)      all liability to you in negligence for our acts or omissions, and those of our employees, agents and contractors, arising out of or in connection with the Agreement. 

15.3    Our liability to you for breach of any express provision of the Master Agreement or Agreement or any Non-Excludable Condition (except a Non-Excludable Condition referred to in clause 15.6 or guarantees under sections 51 to 53 of Schedule 2 of the CCA) is limited to any one of (at our option) replacing or repairing the goods, supplying equivalent goods, or supplying again the services, in respect of which the breach occurred. 

15.4    On request by you, we will refund any amount paid by you for goods or services in respect of which the breach occurred, rather than provide the remedy referred to in clause 15.3. 

15.5    Our Liability to you will not exceed the total amount actually received by us from you during the previous 12 month period for the Advertising Services to which the breach relates (limited to payments made pursuant to the Schedule describing those Advertising Services, or if that amount cannot be ascertained, under the Agreement), less all Third Party Fees. 

15.6    If you are a consumer as defined by the CCA, we do not exclude or limit our liability to you for breach of any Non-Excludable Condition in respect of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. 

15.7    We will have no Liability caused by any act or omission of: 

(a)      yours (including where you have failed to deliver Client Materials or Approvals as required to enable us to perform the Advertising Services); 

(b)      a third party service provider or contractor (including any artist, celebrity, media proprietor or sponsor), 

or any other matter or circumstance beyond our reasonable control. 

16. GST

16.1    You must pay all taxes, duties and other government charges payable or assessed in connection with the Agreement or Advertising Services, excluding taxes assessed on our income. 

16.2    Unless otherwise stated, the amounts payable by you to us for, or in connection with, any Supply under the Agreement do not include any GST. 

16.3    You must pay us additional amount on account of GST equal to the amounts payable by you for the Supply multiplied by the prevailing GST rate. 

16.4    Subject to clause 16.5, the additional amount on account of GST referred to in clause 16.3 is payable at the same time and in the same manner as the Fees and any other amounts payable by you are required to be paid under the Agreement. 

16.5    You are not required to pay the additional amount referred to in clause 16.4 until such time as you have been provided with a tax invoice which is in an approved form for GST purposes. 

17. MISCELLANEOUS

17.1    A party giving notice under the Agreement must do so by notice in writing, hand delivered or sent by pre-paid post, facsimile transmission or email to the address of the recipient, and such a notice will be deemed received: 

(a)      if hand delivered, upon delivery; 

(b)      if sent by pre-paid post, 3 business days after the date of posting; 

(c)      if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire notice, unless the recipient informs the sender that it has not received the entire notice within 1 business day after that transmission; or 

(d)      if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999. 

17.2    We are an independent contractor and not your legal agent, partner, joint venturer, employee or servant. 

17.3    You acknowledge and agree that: 

(a)      we will only be appointed as your legal agent if we expressly agree to that appointment in writing; and 

(b)      unless and until we agree to such appointment, you will not expect that any advice or recommendations we provide will be disinterested or that a conflict of interest will be disclosed to you. 

17.4    A variation or modification of the Agreement or of an Approval must be in writing and signed by us and you. 

17.5    If you fail to pay any amount under the Agreement when due and payable, we may charge interest at the Interest Rate on the Fees that are outstanding and/or may cancel any Advertising Services that have not been paid for and/or cease provision of the Advertising Services. 

17.6    You authorise us to retain by way of lien any funds, property or documents which are from time to time in our possession or control until all Fees, interest and other amounts due from you on any account whatsoever have been paid to us. 

17.7    You may only assign or otherwise deal with your rights under the Agreement with our prior written consent (where a change in shareholding of you, other than the transfer of shares listed on the Australian Stock Exchange, is deemed to be an assignment requiring consent for the purposes of this clause). 

17.8    We may assign any rights under the Agreement to any legal entity that assumes all of our obligations under the Agreement by giving 14 days notice to you (in which case you must promptly execute any assignment or novation documentation we reasonably require to give effect to that transfer). 

17.9    We may subcontract or otherwise arrange for another person to perform any part of the Advertising Services or to discharge any of our obligations under the Agreement, and every right, exemption from liability and defence to which we are entitled under the Agreement shall also extend to all subcontractors. 

17.10  Part or all of any clause of the Agreement that is unenforceable or illegal will be severed from the Agreement and will not affect the enforceability of the remaining provisions of the Agreement. 

17.11  A party’s failure to insist another party perform any obligation under the Agreement is not a waiver of that party’s right to insist the other party perform, or to claim damages for breach of, that obligation, nor to insist the other party perform any other obligation, unless the waiving party acknowledges the waiver in writing. 

17.12  The Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all previous representations, understandings and agreements in connection with that subject matter. 

17.13  No additional terms or conditions provided by you may be imposed on us unless we expressly agree in writing, and unless we otherwise agree the terms of the Agreement will prevail to the extent of any inconsistency with any such additional terms and conditions. 

17.14  The Agreement is governed by and construed in accordance with the laws of South Australia and the parties submit to the exclusive jurisdiction of the South Australian courts and the South Australian Registry of the Federal Court. 

18. DEFINITIONS AND INTERPRETATION

In these Terms and Conditions: 

a reference to the Agreement means the Agreement as amended, varied, novated, supplemented or replaced from time to time; 

a reference to any legislation or any provision of any legislation includes all regulations, orders or instruments issued under the legislation or provision, and any modification, consolidation, amendment, re-enactment, replacement or codification of such legislation or provision; 

words or expressions: 

(a)      importing the singular include the plural and vice versa; and 

(b)      denoting individuals include corporations, firms, unincorporated bodies, authorities and instrumentalities; 

a reference to a party includes that party’s executors, administrators, successors and permitted assigns; 

where a word or phrase is defined or given meaning, any other part of speech or grammatical form has a corresponding meaning; 

a reference to $ or dollars is a reference to Australian dollars; 

where an act would be required to be done, or a time limit or period would expire, on a day which is not a business day, the act may be done, or the limit or period will expire, on the following business day; 

a reference to any thing (including but not limited to any right) includes a part of that thing; 

a reference to two or more persons means those persons jointly and severally; 

Additional Services means any services beyond or outside the scope of the Advertising Services, including any such Additional Services as are specified in the Schedule (which for the avoidance of doubt are not included in the Advertising Services); 

Advertising Codes means the advertising self-regulation codes of practice published or administered by the Australian Association of National Advertisers, the Advertising Standards Bureau, or any successor organisations; 

Advertising Services means the professional communications, marketing, advertising or other services to be provided by us (including the production of any Deliverables and the acquisition of any Third Party Supplies) as described in the Schedule and any Referenced Documents; 

Agency Assets means any Agency Assets specified in the Agreement in addition to our confidential information and know-how and any Materials used by us in the provision of the Advertising Services that are not Deliverables, including Materials created, developed, prepared, produced, purchased or acquired by us independently of the Advertising Services and/or not specifically for you; 

Agency Fees means the amounts payable by you to us for the Advertising Services and any Additional Services that we agree to provide calculated as specified in the Schedule or, if not specified, determined on the basis of our published professional rates for providing services similar to the Advertising Services or Additional Services (as applicable), and includes charges at our published rates (available from us upon request) for ancillary services including production of colour documents, PDF (or other format) files, scans, and for the despatch of Materials using Quickcut or other industry software or technologies; 

Agreement means a separate agreement between us and you on the terms set out in these Terms and Conditions, a Schedule and any Referenced Documents; 

Approval means any approval, authorisation, agreement or consent given by you to us (for example, a signed media buying authority); 

Authorised Representative means any Authorised Representative of yours specified in the Master Agreement and any additional or replacement Authorised Representative you may nominate from time to time; 

Authority means any regulatory authority or private entity that functions in a regulatory or quasi-regulatory manner and includes without limitation the Advertising Standards Bureau, Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Department of Broadband, Communications and the Digital Economy, the Office of the Privacy Commissioner, the Office of the Australian Information Commissioner, the Classification Board, the Telecommunications Industry Ombudsman and any authority, agency or entity that is substituted for, or assumes, the functions of, any of those organisations; 

CCA means the Competition and Consumer Act 2010; 

Client Materials means any Materials provided to us by or at your direction in connection with the Agreement; 

Commencement Date means the Commencement Date specified in the Schedule or, if not specified, the date of execution of the Schedule; 

Confidential Information means confidential and proprietary information of a party provided (whether prior to or after the execution of the Master Agreement and whether in written, oral or other tangible or intangible form) to a party by the other party, including without limitation information relating to that party’s business and affairs, products, systems, methods, technologies, strategies, processes, finances, software, trade secrets, clients, research, development, and operational, legal, marketing or accounting information; 

Deliverables means any Materials created, developed, prepared or produced by us and provided for the purposes, and in the process, of the provision of the Advertising Services including any specified in the Schedule, but excluding all Agency Assets, Client Materials, Third Party Supplies, and any software (including its object and source code) unless it is expressly included in the Deliverables under the Agreement; 

Fees means the Agency Fees and the Third Party Fees; 

GST has the meaning given by the GST Act; 

GST Act means A New Tax System (Goods and Services Tax) Act 1999 and any related or similar legislation; 

Industry Codes means any code of conduct or practice applicable to you, your business or the Advertising Services and includes any industry code of conduct that is prescribed by Law or by virtue of your membership of an industry body, professional association or similar organisation; 

Insolvency Administration means: 

(c)      an administrator is appointed to a party or action is taken to make that appointment; 

(d)      a party ceases to carry on business; 

(e)      a receiver or a receiver and manager of property of a party is appointed whether by a court or otherwise; 

(f)       a party enters into a comprise or arrangement with its creditors or a class of them; 

(g)      a party is or states that it is unable to pay its debts when they fall due; or 

(h)      anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition; 

Intellectual Property Rights means all current and future intellectual property rights including without limitation patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights; 

Interest Rate means 10% per annum, accruing daily from the date of the account; 

Laws includes the provisions of any statute, rule, regulation, proclamation, ordinance or by-law, code of conduct or protocol, principles of common law and equity, writs, orders, injunctions, judgments, and Australian generally accepted accounting principles; 

Liability includes any action, claim, demand, cost, loss, expense or liability of any nature; 

Master Agreement means the agreement of that name executed by us and you, which attaches and incorporates these Terms and Conditions; 

Materials includes documents, information, data, content, subject matter, artwork, copy, layouts, designs, storyboards, scripts, equipment, software, customer lists, items, works, materials, recordings, films, other matter and materials and Intellectual Property Rights (including where applicable in tangible, electronic or other intangible form); 

Moral Right has the meaning given by the Copyright Act 1968; 

party means you or us, and parties means both you and us; 

Payment Terms means the Payment Terms specified in the Schedule or, if not specified, within 30 days after your receipt of an invoice from us rendered in accordance with the Agreement; 

Personal Information has the meaning given by the Privacy Act; 

Personnel includes directors, officers, employees and representatives; 

Privacy Act means the Privacy Act 1988; 

Proposal Materials means all ideas, concepts, approaches, formats, submissions and Materials presented or provided in any manner to you by us, including where provided on a “pitch” or proposal basis by us and any preliminary services statement and costing or a campaign proposal (or similar proposal), but excluding any Agency Assets and Deliverables; 

Referenced Documents means any documents attached or referred to in the Schedule or these Terms and Conditions; 

Required Insurance means, for a specified party, all insurance required by Law and insurances of the kinds and in the amounts as specified in the Schedule to be maintained by that party or, if none is specified, such insurance as a prudent and reasonable person conducting a similar business would effect and maintain; 

Schedule means a schedule to the Agreement executed by the parties; 

Supply has the meaning given by section 9-10 of the GST Act and excludes any “GST-free supplies” and “input taxed supplies” under the GST Act; 

Third Party Claim means a claim by a third party that any Deliverables or Advertising Services or any other right enjoyed by you under the Agreement infringes the rights (including Intellectual Property Rights) of any person, or breaches any Laws, Advertising Codes, Industry Codes, or the requirements of any Authority, including any legal proceedings arising in connection with such a claim; 

Third Party Fees means any amounts payable for Third Party Supplies (including any specified in the Schedule), which will be charged to you in the manner specified in the Agreement or, if not specified, at cost; 

Third Party Materials means Materials used in the provision of the Advertising Services that are owned or provided by a third party, including without limitation any specified in the Agreement or an Approval, and commissioned works, open source and public domain software or content; 

Third Party Supplies means goods or services to be acquired from third parties (such as media broadcasting services) as specified in the Agreement, an Approval, or otherwise reasonably required for or in connection with the provision of the Advertising Services, including the Third Party Materials; 

Term means the Term specified in the Schedule or, if not specified, the period until completion of the Advertising Services by us as contemplated by the Agreement; 

Use Limitations means any restrictions specified in the Schedule or Referenced Documents (which may without limitation restrict the relevant licence or assignment to a specific period of time, territory, campaign, execution and/or media, or limit its use to a specific purpose); 

you or your means the Client who entered into the Master Agreement with us; and 

we, us or our means kwpx Pty Ltd ABN 51 130 411 139 of Level 1, 251 Rundle Street , Adelaide, South Australia 5000 

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