Terms and Conditions of Engagement -
Topham Guerin Australia
Table of Contents
1. Defined terms and interpretation
2. Appointment
3. Provision of Services
4. Client Obligations
5. Fees, Expenses and Payment Terms
6. Confidentiality
7. Intellectual Property
8. Warranties and Liability
9. Term and Termination
10. Force Majeure
11. Disputes
12. Anti-corruption Laws
13. Notices
14. General
15. Digital and Website Services
Parties
1. Topham Guerin Pty Ltd (TG)
ACN: 637 357 281
Address: Level 2, 58 Riley Street Darlinghurst NSW 2010 Australia
2. The Client
ACN: As noted in the relevant Estimate/Statement of work.
Address: As noted in the relevant Estimate/Statement of work.
Recitals
A. Client is engaged in its respective business activities.
B. TG is engaged in the business of providing creative and digital advertising services.
C. Client desires to obtain and TG is willing to provide such services to Client on the terms set out in this agreement.
D. If Client requests such services from TG and TG is able to provide such services, the parties will enter into a separate Statement of Work or approved estimate in accordance with the provisions of this agreement.
E. Each Statement of Work or approved estimate will incorporate the terms and conditions set out in this agreement.
Operative Parts
1. Defined terms and interpretation
1.1 Defined terms
The following definitions apply unless the context requires otherwise.
Affiliate for the purposes of this agreement means any person or entity that directly, or indirectly through one or more intermediaries, owns or controls, is owned or controlled by, or is under common control with TG. “Control” means the power to direct the management of the affairs of a person and “ownership” means the beneficial ownership of at least 10% of the voting securities of the person.
Anti-Corruption Laws means any Law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth) and any anti-corruption regulations and provisions applicable in the European Union or in any of the locations in which the Client carries on business.
Assignment Fee means the fee for assignment of the Developed IP (if applicable) set out in relevant estimate/SOW.
Business Day means:
(a) for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in the city where the notice is received; and
(b) for all other purposes, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in Sydney.
Business Hours means from 9.00am to 5.00pm on a Business Day.
Client means the client to whom the relevant Estimate is addressed.
Client Deliverables has the meaning set out in clause 4.2.
Confidential Information means:
(a) all commercially sensitive or proprietary information, data, drawings, specifications, documentation and know-how (whether written or oral) that either party may have imparted and may from time to time impart to the other party relating to the subject matter of this agreement;
(b) all Developed IP;
(c) all reports created in the course of performing this agreement;
(d) all commercial information concerning the business of either party;
(e) the terms of this agreement; and
(f) any other information that is, by its nature, confidential or that either party advises the other in writing to be confidential,
but does not include any information that:
(g) the parties agree in writing is not Confidential Information;
(h) is, after the date of disclosure, received in good faith by a party from a third party who is lawfully in possession of that information and has a right to disclose it.
Consultation Period has the meaning given in clause 11(c).
Content means any text, images, audio, video, software, data compilations, GIF’s, animated explainers, social story videos, web pages, graphics, text only social media posts and any other form of information developed pursuant to this agreement and forming part of the Works.
Corporations Act means the Corporations Act 2001 (Cth).
Daily Fee Rates means the daily fee rates notified from time to time to Client by email
Developed IP has the meaning given to it in clause 7.2.
Details means, in relation to a party, the details for that party set out in this agreement.
Dispute has the meaning given to it in clause 11.
Estimate means the written fee estimate/statement of work (SOW) provided by TG.
Fees means the fees to be charged by TG to the Client as due consideration for the Works which are set out in the written estimate and statement of work provided to the Client.
Force Majeure means any act, occurrence or event not within the control of the relevant party, including without limitation, fire, flood, lightning, storm and tempest, strikes, lockouts or other industrial disputes, acts of war, riots, explosion, epidemic, pandemic, government restrictions, unavailability of equipment or other causes which are not reasonably within the control of that party.
Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in Australia (whether federal, state or local) or any other part of the world.
GST Amount means, in relation to a Payment, an amount arrived at by multiplying the Payment (or the relevant part of a Payment if only part of a Payment is the consideration for a taxable supply) by the appropriate rate of GST (being 10% when the GST Law commenced).
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (as amended) and any regulation made under that Act.
Insolvency Event means, in relation to a party, the happening of any of the following events:
(a) the party becomes a chapter 5 body corporate under the Corporations Act;
(b) steps are taken by a third person towards making the party a chapter 5 body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within 14 days);
(c) a controller (as defined in section 9 of the Corporations Act) is appointed to any of the property of the party or any steps are taken for the appointment of such a person (but not where the steps taken are reversed or abandoned within 14 days);
(d) the party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; or
(e) a secured creditor of the party or a related body corporate of the party exercises its security in relation to its debt.
Intellectual Property means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information, know how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
Laws means all laws, statutes, enactments, rules, regulations, by-laws, subordinate legislation, judgments, authorisations, rulings, orders or decrees of any Government Agency, regulatory agency or other competent authority.
Loss means any damage, loss, cost, charges or expense incurred by the person concerned.
Moral Rights has the meaning given to it in section 189 of the Copyright Act 1968 (Cth) and includes any similar rights outside Australia.
MSA Commencement Date means the date of this agreement.
Notice has the meaning given to it in clause 3.1.
Payment means:
- the amount of any monetary consideration (other than a GST Amount payable under clause 1.4); or
- the GST exclusive market value of any non-monetary consideration; and
- which is paid or provided by one party to another for any supply made under or in connection with this agreement and includes any amount payable by way of indemnity, reimbursement, compensation or damages.
Payment Terms means the payment terms set out in the relevant estimate/SOW.
Pre-Existing IP has the meaning given to it in clause 7.1.
Services means the services to be supplied by TG to the Client under this agreement and which are set out in the provided estimate/SOW.
Statement of Work or SOW means a detailed plan, agreed in accordance with clause 3.2, describing the Works to be provided by TG, the timetable for their performance and the related matters substantially in the form of the template statement of work.
Source File Fee means the fee for source files (if applicable) set out in relevant estimate/SOW.
SOW Commencement Date is the date set out in the relevant SOW.
SOW Initial Term means, subject to early termination in accordance with this agreement, the initial term of the relevant SOW as set out in the SOW commencing on the SOW Commencement Date.
SOW Renewal Term means subject to any option to renew under the SOW being exercised by Client, the renewal term set out in the SOW which commences at the end of the SOW Initial Term or the relevant SOW Renewal Term unless terminated earlier in accordance with this agreement.
SOW Term means the SOW Initial Term and any Renewal Terms unless terminated earlier under this agreement.
Term has the meaning set out at clause 9.
Work means all Services to be performed and any goods, products, work, data, items, materials and property to be created, developed, produced, or provided or made available by TG to Client (including Content) as set out in the delivered SOW.
1.2 Interpretation
In this agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa and a gender includes other genders;
(b) other grammatical forms of a defined word or expression have a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedule and annexure;
(d) a reference to a document or agreement, includes the document or agreement as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to time is to Sydney time;
(g) a reference to a year (other than a financial year) or a month means a calendar year or calendar month respectively;
(h) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(i) a reference to a person includes a natural person, partnership, firm, body corporate, trust, joint venture, association, governmental or local authority or agency or other entity;
(j) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(k) any authorities, associations, bodies and entities whether statutory or otherwise will, in the event of such authority, association, body or entity ceasing to exist or being reconstituted, replaced or the powers or functions thereof being transferred to or taken over by any other authority, association, body or entity, be deemed to refer respectively to the authority, association, body or entity established, constituted or substituted in lieu thereof which exercises substantially the same powers or functions;
(l) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(m) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(n) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(o) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
(p) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(q) in the event of any ambiguity, inconsistency or discrepancy between this Master Services Agreement and any Statement of Work, the terms of this Agreement shall prevail, unless the parties have expressly stated in such Statement of Work that the conflicting provisions of such Statement of Work shall prevail, in which case only such conflicting provisions in that particular Statement of Work shall prevail.
1.3 Headings
Headings are for ease of reference only and do not affect interpretation.
1.4 Order of precedence
In the event of any ambiguity, discrepancy or inconsistency arising between the terms of this agreement and any SOW entered into under this agreement (Conflicting Provisions), then for the purposes of resolving the same, the terms will have the following order of precedence:
(a) the terms of this agreement other than the SOW;
(b) the SOW, unless the parties have expressly stated in the SOW that the Conflicting Provisions of the SOW shall prevail, in which case such provisions in this SOW shall only prevail with respect to that particular (but no other) SOW.
1.5 GST
(a) Expressions set out in italics in this clause 1.5 bear the same meaning as those expressions in the GST Law.
(b) All Payments have been set or determined without regard to the impact of GST.
(c) Subject to clause 1.5(e), if the whole or any part of a Payment by a party (including amounts referred to in clause 1.5(d)) is the consideration for a taxable supply, the GST Amount in respect of the Payment must be paid to the supplier of the taxable supply as an additional amount, at the same time and in the same manner as the Payment is otherwise payable or as otherwise agreed in writing.
(d) If a Payment due under this agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, the Payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which the other party can claim an input tax credit.
(e) A party’s obligation to make payment under clause 1.5(c) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
(f) Where the supplier has become subject to any penalties or interest because of a late payment by the supplier to the Australian Taxation Office of any GST Amount and that late payment is a result of the failure of the recipient to comply with the terms of this clause 1.5, the recipient must pay to the supplier an additional amount on demand equal to the amount of those penalties and interest.
(g) The recipient must indemnify the supplier on demand in respect of all loss or damage arising from a breach by the recipient of its obligations under this clause
2. Appointment
2.1 Appointment of TG
The Client appoints TG to provide the Works to it during the Term and TG agrees to provide the Works to the Client in accordance with this agreement.
2.2 No exclusivity
Nothing in this agreement restricts TG from providing any services (including the Services) to any other person either during the Term or after the termination of this agreement.
2.3 Relationship of the parties
(a) The relationship between the parties is that of a principal (in the case of the Client) and independent contractor (in the case of TG);
(b) This agreement does not create a relationship of employment, trust, agency or partnership between the parties.
3. Provision of Services
3.1 Provision of Works by SOW
(a) Client may at any time during the Term procure any of the Services by agreeing a SOW with TG.
(b) TG will provide the Works from the date specified in the relevant Statement of Work.
3.2 SOW Process
(a) In entering into each SOW, the following process must be followed:
(i) the Client will ask TG to provide any or all of the Services and provide TG with as much information as TG reasonably requests in order to prepare a draft Statement of Work for the Services requested;
(ii) following receipt of the information requested from the Client, TG will, as soon as reasonably practicable either:
(a) inform the Client that it declines to provide the requested Services; or
(b) provide the Client with a draft Statement of Work.
(iii) if TG provides the Client with a draft Statement of Work pursuant to clause 3.2(a), TG and the Client will discuss and agree that draft Statement of Work; and
(iv) where the parties agree on the SOW, each party will sign the draft SOW.
(b) TG may charge for the preparation of Statements of Work and Change Orders on a time and materials basis in accordance with TG’s Daily Fee Rates.
(c) Once a Statement of Work has been agreed and signed in accordance with clause 3.2(a)(iv), no amendment will be made to it except in writing, signed by both parties.
(d) If Client decides to change, modify or supplement (Modify) the Services under a Statement of Work or TG believes the Statement of Work needs to be Modified, the requesting party will request such Modifications pursuant to a Change Order substantially in the form of Schedule 2.
(e) Upon acceptance by the relevant party of the Change Order the Change Order will form part of this agreement and supersede the relevant parts of the Statement of Work. If in TG’s reasonable opinion the Modification falls within the Statement of Work or is a minor modification, then TG will modify the Works in accordance with the Statement of Works. The Client acknowledges that any other Modification may affect the Fees and or any timelines.
(f) If the parties cannot agree upon the Change Order or Client fails to notify TG that it agrees or does not agree with the Change Order, TG will continue the Works in accordance with the current Statement of Work.
(g) Each Statement of Work shall be part of this agreement and shall not form a separate contract to it.
3.3 Standard of Service
(a) TG will:
(i) perform the Services:
(A) in a professional, efficient and competent manner; and
(B) in accordance with the terms of this agreement.
(ii) except for where expressly stated otherwise, be responsible for all payment obligations in respect of its staff, including all costs associated with the recruitment and continuing employment of its staff and for its own day-to-day employment relations.
(b) Time will not be of the essence in relation to the performance of Services by TG under a SOW or this agreement. Any statement by TG in relation to the time for delivery will be an estimate only and will not be binding on TG.
(c) If TG consider it necessary, it will develop a production schedule for the Services.
3.4 Secondments
(a) Where agreed between the parties as part of a Statement of Work (or otherwise agreed in writing), TG will use its reasonable endeavours to arrange or procure the secondment of suitably qualified personnel as may be required by Client (each a “Secondment”).
(b) Any Secondment will be subject to the parties mutually agreeing on the terms that apply to such Secondment, including in relation to (without limitation):
(i) hours of work;
(ii) the level of assistance and services to be provided;
(iii) fees/rates payable;
(iv) liability of the parties;
(v) responsibility for paying expenses;
(vi) leave entitlements (if any);
(vii) ownership of intellectual property rights;
(viii) confidentiality; and
(ix) non-solicitation and restraints.
3.5 Sub-contractors
(a) Client acknowledges that TG may engage third party designers, creatives, developers or other providers as independent contractors in connection with the provision of the Works (Sub-contractors).
(b) The Term sub-contractor will not include third party producers, photographers, shipping companies, stock houses, technology companies, hosting companies, media providers and other vendors (Vendors) engaged by TG to assist in the completion of services where such assistance is incidental, ancillary or supplemental to the Services.
(c) TG will use its reasonable endeavours to procure that the Sub-contractors perform in accordance with TG’s obligations under this agreement but will not be held responsible for any failure to do so on the part of any:
(i) Vendor; or
(ii) sub-contractor that the Client requires or directs TG to engage or that performs Services that Client requires or directs TG to sub-contract.
3.6 Open Source Software
(a) In delivering the Services, TG may use open source software platforms including but not limited to applications such as WordPress and Woocommerce (Open Source Software). In such cases the Client is required to utilise the same Open Source Software to allow it to make use of the Services.
(b) The Client will comply with the Open Source Software licensing terms.
(c) TG makes no warranty or representations to the suitability of the licensing terms of any Open Source Software to the Client’s commercial needs, and the Client is responsible for familiarising themselves with the relevant supplier’s licence terms.
3.7 Fonts
(a) TG may recommend or implement the use of ‘web-friendly’ fonts as part of the Services. The fonts recommended will be available for Client use at no charge, unless otherwise specified in the SOW.
(b) Where the Client nominates an alternative font, the rights to use the font may include a licence fee payable to the font provider. In such cases any fee is excluded from the Fees and will be paid direct by the Client to the font supplier, under the terms of an agreement to be negotiated between the Client and the font supplier.
3.8 Stock Imagery and other Visual Assets
(a) The photography used in Services will be supplied by the Client.
(b) Client represents and warrants to TG that it has the appropriate rights and licences required to permit it to publish the photography in the public domain and online and otherwise in connection with the Works.
(c) TG may recommend professional suppliers of photography or video to engage with the Client for an additional fee to produce Content for the Client for use within the Services.
4. Client Obligations
4.1 Co-operation
Client will co-operate with TG in all matters relating to the Works, including by:
(a) promptly notifying TG of any enquiries relating to the Works from the media;
(b) providing TG with as much notice as possible in advance of any major events in Client's business (such as the launch of a new product or new services and/or the opening of new premises);
(c) permitting TG to attend any meetings, when reasonably necessary, with any advertising and/or marketing services agencies and other advisers engaged by Client.
4.2 Client Deliverables
(a) Client acknowledges and agrees that in providing the Services, TG may from time to time be reliant on Client (including its agents, employees and contractors) delivering to TG certain materials or instructions (including confirmations such as content signoffs) (Client Deliverables).
(b) Client will deliver Client Deliverables and perform its obligations under this agreement in a timely, professional, efficient and competent manner and TG will not be liable for any Loss sustained by Client which arises directly or indirectly from TG’s failure to meet its obligations under this agreement (including any failure to meet any agreed timeframes) to the extent that the failure results from Client’s failure to deliver or procure delivery of the Client Deliverables or otherwise perform its obligations under this agreement in accordance with the requirements of this paragraph.
4.3 Content Signoff Process
(a) Unless a specific approval process is outlined in an accompanying Statement of Work (SOW), the Client and TG will adhere to the content approval process as outlined in clause 4.3(b) (Content Approval Process).
(b) The Content Approval Process is as follows:
(i) TG presents draft content to the Client for review.
(ii) The Client reviews and provides feedback or amendments as necessary.
(iii) TG incorporates feedback and presents revised content to the Client for final approval.
(iv) The Client gives final approval in writing.
(c) The Client is responsible, at its own cost, for:
(i) Confirming in writing that the content complies with all applicable laws; and
(ii) Providing a written approval to TG confirming readiness to accept the content as part of the final Works.
(d) TG will not publish or distribute any content until it has received the Client's written confirmation and approval in accordance with clause 4.3(c).
(e) In the event the Client finds the content does not comply with applicable laws or is not ready to be included as part of the Works, the Client shall communicate the required modifications to TG within the review period specified in point 2b.
(f) The Client agrees to indemnify TG for any loss or liability TG incurs as a result of publishing or distributing content that was approved by the Client under the terms of this Content Approval Process.
5. Fees, Expenses and Payment Terms
5.1 Fees
TG will be entitled to invoice Client for the Fees.
5.2 Expenses
TG shall be entitled to reimbursement for all expenses reasonably incurred by TG, its employees, sub-contractors, Vendors and agents in the performance of the Services, including travel and associated expenses for TG team members, upon submission of written statements and receipts. Any such reimbursement is subject to the terms set out in the SOW.
5.3 Payment Terms
Each invoice issued by TG under this agreement must be paid:
(a) in accordance with the Payment Terms; and
(b) in full without deduction, withholding, counterclaim or set-off of any kind.
5.4 Default interest
If Client fails to pay any amount payable under this agreement by the due date for payment, interest (calculated on a daily basis from the due date until the date that payment is made in full to TG) shall accrue and be payable on the overdue amount at a rate per annum equal to 5% above the then current unsecured overdraft lending rate charged by TG’s primary bankers. Such interest shall compound monthly at such a rate after as well as before any judgment. Interest payable under this clause shall be payable immediately on demand.
6. Confidentiality
6.1 Duty to keep confidential
Each party (the Recipient) will keep confidential all Confidential Information obtained from the other party and will not divulge that Confidential Information to a third party without the written consent of the other party.
6.2 Disclosure to authorised recipients
The Recipient may divulge Confidential Information only to those of its employees, agents and contractors who are directly involved in fulfilling the obligations of each of the parties under this agreement and will ensure that such employees, agents and contractors are aware of and comply with these obligations as to confidentiality.
6.3 Exceptions to confidentiality
The obligations of confidentiality in this clause 6 will not apply to information that:
(a) the Recipient can clearly show was independently available to it from a third party having the right to disclose it;
(b) at the time of execution of this agreement is in the public domain, or subsequently enters the public domain, through no fault of the Recipient or any other person to whom it discloses the information;
(c) the Recipient is obliged by Law to disclose, provided that it has first advised the other party of this obligation, has allowed the other party reasonable time to avoid or minimise the disclosure having to be made, and has given the other party such assistance (at the other party’s cost) as the other party reasonably requests in doing this; or
(d) is disclosed by the Recipient as reasonably required to enforce its rights or perform its obligations under this agreement.
6.4 Return or destruction of Confidential Information
The Recipient must, at the request of the other party:
(a) return to the other party or destroy all copies of the other party’s Confidential Information in its possession or under its control, including materials in which the Confidential Information is recorded, such as working papers; and
(b) will not retain any copies of that Confidential Information in any form other than for legal, insurance or corporate governance purposes, or where it is entitled to do so under clause 7.
7. Intellectual Property
7.1 Pre-existing Intellectual Property
Each party retains ownership of its Intellectual Property in existence as at the date of this agreement (Pre-existing IP). Except where a party is specifically granted the right to use such material under this agreement, nothing in this agreement confers on either party any ownership, usage or other rights in respect of any such pre-existing Intellectual Property owned by or licensed to the other party.
7.2 Developed IP vests in TG
The Developed IP consists of the unique and/or novel Intellectual Property that is specifically developed or generated by TG for Client in the performance of the Works under this agreement, which for the avoidance of doubt, does not include:
(a) the generic functionality of such Intellectual Property;
(b) Client’s or TG’s Pre-Existing IP;
(c) Intellectual Property which TG develops or generates independently of this Agreement; or
(d) Intellectual Property in Works which have not been approved by Client as the final form in accordance with this agreement,
and unless otherwise specified in the relevant SOW, vests upon creation in TG.
7.3 Licence to use Developed IP
(a) If specified in the SOW, and upon payment of the relevant Fees, TG will grant Client a non-transferable, non-exclusive licence to use the Developed IP in accordance with the licence terms set out in the relevant SOW.
(b) Client must not without TG’s prior consent:
(i) adapt, create derivative works from or merge the template or other Developed IP;
use the Developed IP for any purpose other than the specific purpose for which TG have provided it;
(ii) reverse engineer, disassemble or decomplile the Developed IP;
(iii) distribute, lend, resell, transfer, assign or sub-licence the Developed IP or allow any other person to use it except for the purpose of visiting a service which forms part of the Developed IP;
(iv) remove or attempt to remove any proprietary notices on the Developed IP.
7.4 Source Files
Unless otherwise agreed in the SOW, TG own all Intellectual Property in its editable working files and will not release them to Client. If specified in the SOW, TG will provide the Client with the relevant source files relating to the Works as specified in the SOW (such as .indd, .eps, psd, editable PDF or similar) in consideration for the Source File Fee.
7.5 Assignment of Developed IP
(a) TG and Client will specify in the SOW whether they intend for any assignable Intellectual Property rights in the Developed IP to vest in Client.
(b) Such Developed IP will vest in and be owned by Client provided Client has paid the relevant Fees in full to TG (including any Assignment Fee).
(c) For the avoidance of doubt, TG will retain exclusive ownership of all ideas, concepts, techniques and know how discovered, created or developed by TG and that are of general application and are not based on or derived from Client’s Confidential Information (TG Components). Where TG Components are embodied in the Works, TG will sub-licence Client sufficient rights to enable them to use the Works in the manner contemplated by the SOW. Client acknowledges that TG may re-use the TG Components for any other use, including but not limited to licensing other clients of TG without reference to Client.
(d) Where third party Intellectual Property is embodied in the Works, TG will sub-licence Client sufficient rights to enable them to use the Works in the manner contemplated by the SOW, subject always to the licence terms of the owner and/or controller of such third party Intellectual Property rights. Client will comply with the terms of such licence or assignment.
7.6 No disputing ownership
A party will not, either during or after the Term, in any way question or dispute the other party’s ownership (if any) of Intellectual Property as set out in this clause 7.
7.7 Use of Intellectual Property
Subject to the rights of TG under clause 7.2, each party agrees not to use or permit to be used by any other person, any Intellectual Property that belongs to the other party except in connection with providing, or receiving the benefit of, the Services and in particular, neither party will use any of the other party’s Intellectual Property for its own purposes or for any purpose which is adverse to the interests of the other party.
7.8 Future marketing
TG may reproduce and publish material (with the exception of Confidential Information) created in the course of the provision of the Works for the purposes of securing future engagements and general marketing.
7.9 Third party rights
TG does not warrant or represent that Client’s use of the Works will not infringe any third party’s Intellectual Property Rights or any persons Moral Rights but will advise Client if it becomes aware of any such infringement.
7.10 Survival
The terms of this clause 7 will continue to be binding on the parties notwithstanding the termination or expiration of this agreement.
8. Warranties and Liability
8.1 Warranties by Client
Client represents and warrants to TG that:
(a) the Client Deliverables IP will not be defamatory, will not infringe any copyright, trademark, trade secret or other Intellectual Property or privacy right or other rights of a third party;
(b) there is no infringement of the Client Deliverables IP;
(c) the Client Deliverables are accurate and complete; and
(d) it has or will have through written agreements with its employees, contractors, representatives and agents and third-party providers, all releases, licences, permits and other authorisations required to use copyrighted materials, data and any other property or rights belonging to third parties that Client provides to TG for use by TG in performing and/or preparing Works for the Client.
8.2 Indemnity
Client indemnifies and agrees to keep TG indemnified against all Loss arising directly or indirectly from the breach of the warranties set out at clause 8.1.
8.3 Warranties by each party
Each party represents and warrants to the other party that:
(a) it has full legal capacity and power:
(i) to own its property and to carry on its business; and
(ii) to enter into this agreement and to carry out the transactions contemplated by it;
(b) it has taken all corporate action that is necessary or desirable to authorise its entry into this agreement and its carrying out of the transactions that it contemplates;
(c) it is not affected by an Insolvency Event;
(d) this agreement constitutes legal, valid and binding obligations, enforceable against it in accordance with its terms, subject to any necessary stamping or registration;
(e) neither its execution of this agreement nor the carrying out by it of the transactions that this agreement contemplates, does or will:
(i) contravene any law to which it or any of its property is subject or any order of any government agency that is binding on it or any of its property;
(ii) contravene any required authorisations or approvals; or
(ii) contravene any undertaking or instrument binding on it or any of its property;
(f) it is not entering into this agreement as a trustee of any trust or settlement.
8.4 Exclusions
(a) Client acknowledges that TG makes no warranties regarding the likelihood of success of any marketing or promotional activity undertaken pursuant to this agreement.
(b) To the fullest extent permitted by law and except as expressly provided in this agreement, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise relating to the Services and Works supplied by TG are excluded.
(c) TG does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between TG and Client by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, to the extent to which TG is entitled to do so, TG’s liability will be limited at its option to:
(i) in the case of a supply of goods:
(A) the replacement of the goods or supply of equivalent goods;
(B) the payment of the cost of replacing the goods or acquiring equivalent goods;
(C) the payment of the cost of having the goods repaired; or
(D) the repair of the goods; and
(ii) in the case of services:
(A) the supply of the services again; or
(B) the payment of the cost of having the services supplied again.
8.5 Consequential Loss
To the fullest extent permitted by law, TG is not liable to Client, whether in contract, tort (including negligence), statute or otherwise, in connection with any right or remedy conferred on the Client by law, or any liability of the TG to the Client as a result of or in connection with this agreement:
(a) for any Loss to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any Loss beyond the normal measure and beyond that which every plaintiff in a like situation would suffer;
(b) for any loss of revenue or profits of any nature whatsoever, loss of expected savings, loss of use, loss of chance or business opportunity, loss of or corruption of or damage to software, data or information, business interruption, loss or reduction of goodwill or damage to reputation.
8.6 Limitation of liability
Subject to clause 8.5, the aggregate liability of TG and its directors, officers, employees and agents for all losses, claims, costs or damages suffered or incurred by Client arising out of or in connection with this agreement, and the performance or non-performance of the Services, whether based on an action or claim in contract, tort (including negligence), breach of statute or otherwise, is limited to the amount of Fees received by TG from Client under this agreement over the previous six completed calendar months of the Term.
8.7 Indemnity
(a) Client indemnifies, defends and holds harmless TG, its related bodies corporate and their respective employees, officers, directors, shareholders and agents (TG Indemnitee) from and against all Loss incurred by a TG Indemnitee in respect of all actions, claims, proceedings, demands, liability, losses, damages, expenses and costs (including legal fees on a full indemnity basis) in connection with any of the following;
(i) any breach by Client of this agreement;
(ii) any negligent acts and omissions by Client or its employees or agents in the performance of its obligations or exercise of its rights under this agreement;
(iii) TG’s use of the Client Deliverables;
(iv) the Works being in breach of applicable Law;
(v) use of the Services by the Client, its agents or contractors (including any third party claims made in connection with or arising out of Client’s use of the Service other than in accordance with this agreement); and
(vi) any allegations of or breach of any third party Intellectual Property rights.
(b) Client indemnifies and agrees to keep TG, its directors, officers and employees indemnified against all Loss arising from actions taken in performing the Works.
9. Term and Termination
9.1 Term
(a) The Term of this MSA will commence as of the MSA Commencement Date and will continue until terminated under this clause 9. The termination or expiry of all SOWs will be deemed to be a termination of this agreement.
(b) A SOW will commence on the SOW Commencement Date and will continue for the SOW Initial Term. The SOW may provide:
(i) an option for Client renew the SOW for the SOW Renewal Term [by providing notice of its intention to renew the SOW in accordance with the SOW]; or
(ii) for the SOW to automatically renew for the SOW Renewal Term unless the Client provides notice of its desire not to renew prior to the expiry of the Initial Term or relevant SOW Renewal Term in accordance with the SOW.
(c) Each SOW may have its own SOW Initial Term and SOW Renewal Terms, and the expiration or termination of any particular SOW will not affect the SOW Initial Term or SOW Renewal Term of any other SOW currently in effect.
(d) A SOW will bind TG and Client as of the date of execution of such SOW and will continue for the term set out in the SOW together with any SOW Renewal Term, unless terminated earlier in accordance with this agreement (SOW Term).
9.2 Termination without cause
(a) [Client may terminate this agreement without cause by giving not less than [60] days’ prior written notice to TG [on or following the expiry of the current SOW]. In such circumstances, Client must pay the Fees in respect of the period up until the termination date.]
(b) [TG may terminate this agreement without cause by giving not less than [60] days’ prior written notice to Client [on or following expiry of the current SOW].
9.3 Termination with cause
Either party may immediately terminate this agreement and/or a SOW by giving written notice to the other party if:
(a) the other party is in breach of any material provision of this agreement and (where the breach is capable of remedy) the party in breach has failed to remedy the breach within [30] days of receipt of written notice from the other party describing the breach and calling for it to be remedied; or
(b) the other party suffers an Insolvency Event.
9.4 Effect of termination
On termination or expiration of an applicable SOW, except as otherwise provided in this agreement and subject to any rights or obligations which have accrued prior to termination, neither party will have any further obligation to the other under that SOW and all Services associated with such SOW will immediately cease.
On termination or expiration of this agreement, except as otherwise provided in this agreement and subject to any rights or obligations which have accrued prior to termination, neither party will have any further obligation to the other under this agreement and all Services associated with the Client will immediately cease.
9.5 Survival of rights
Clauses 6 (Confidentiality), 7 (Intellectual Property), 8 (Warranties and Liability) and clause 9.4 (Effects of Termination) survive termination of this agreement.
9.6 Without prejudice
The rights of termination conferred by the provisions of this clause are without prejudice to any right of action or remedy of a party in respect of any breach of any term of this agreement or SOW.
10. Force Majeure
(a) If either party is affected by Force Majeure, it must promptly notify the other party of the nature and extent of the circumstances in question.
(b) Subject to clause 10(a), neither party will be in breach of this agreement or otherwise liable to the other party for any delay in performance or the non-performance of any of its obligations under this agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party and the time for performance of that obligation will be extended accordingly
11. Disputes
(a) Subject to clause 11(i), a party must not start arbitration or court proceedings in respect of a dispute arising out of or in connection with this agreement (Dispute) unless it has complied with this clause 11.
(b) If any Dispute arises, the party claiming that a Dispute has arisen must notify the other party (giving details of the Dispute) and the parties will make every effort to resolve the Dispute by mutual negotiation followed by mediation in accordance with this clause 11.
(c) During the seven day period after a notice is given under paragraph 11(b) (or such longer period agreed to in writing by the parties to the Dispute) (the Consultation Period), each party must use its best efforts to resolve the Dispute through mutual negotiation between a representative from each party with authority to agree to a resolution of the Dispute.
(d) If the parties are unable to reach a resolution of the Dispute by mutual negotiation of their representatives by the end of the Consultation Period, each party agrees that the Dispute must be referred for mediation in accordance with the mediation guidelines published by the Law Society of New South Wales, at the request of either party, to:
(i) a mediator agreed on by the parties; or
(ii) if the parties are unable to agree on a mediator within seven days after the end of the Consultation Period, a mediator nominated by the then current President of the Law Society of New South Wales.
(e) The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.
(f) Any information or documents disclosed by a party under this clause:
(i) must be kept confidential; and
(ii) may not be used for any purpose except to attempt to resolve the Dispute.
(g) Each party must bear its own costs of complying with this clause and the parties must bear equally the costs of the mediator.
(h) If a party has complied with paragraphs 11(a) to 11(d) and the Dispute has not been resolved within 21 days from the end of the Consultation Period, then either party may terminate the dispute resolution process by giving written notice to the other party.
(i) Nothing contained in this clause will deny any party the right to seek injunctive relief from an appropriate court.
The dispute resolution procedures in this clause will not apply where a party is entitled under this agreement to immediately terminate this agreement
12. Anti-corruption Laws
Each of the parties agrees to comply with the Anti-Corruption Laws and must not commit any act or omission which causes or could cause it or the other party to breach, or commit an offence under, any Anti-Corruption Laws. Each party warrants and represents that it has not been convicted of any offence and has not been the subject of any investigation or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under any Anti-Corruption Laws. Each party must, to the extent permitted by Law, promptly notify the other party in writing if it becomes aware at any time during the Term that any of the representations and warranties set out in this clause are, or might reasonably be expected to be, no longer correct
13. Notices
13.1 Service of notices
A notice, demand, consent, approval or communication under this agreement (Notice):
(a) must be in writing and in English directed to the recipient’s address for notices specified in the Details (as varied by any Notice);
(b) must be hand delivered, left at or sent by prepaid post or email to the recipient’s address for notices specified in the Details (as varied by any Notice); and
(c) may be given by an agent of the sender.
13.2 Effective on receipt
A Notice given in accordance with clause 13.1 takes effect when received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered or left at the recipient’s address, on delivery;
(b) if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia); and
(c) if by email transmission, when received by the recipient’s email server (even if received, filtered or categorised as unwanted email or spam), unless the sender receives an automated notice (not including an out of office notice) that delivery has failed,
but if the delivery or transmission under paragraph (a) or (c) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission.
14. General
14.1 Alterations
This agreement may be altered only in writing signed by each party.
14.2 Assignment
(a) Subject to clause 14.2(b), neither party may assign, transfer or otherwise dispose of its rights and obligations under without the prior consent of the other party.
(b) TG may assign, transfer or otherwise dispose of its rights and obligations under this agreement in whole or in part to any of its Affiliates.
14.3 Counterparts
This agreement may be executed in counterparts. All executed counterparts constitute one document. This agreement may be executed by either of the parties by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.
14.4 Costs
The parties agree that each party shall bear its own costs in relation to, and associated with, this agreement and giving effect to the agreement.
14.5 No merger
Except where this agreement expressly states otherwise, the rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
14.6 Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
14.7 Further action
Each party must do, at its own expense, everything reasonably necessary to give full effect to this agreement and the transactions contemplated by it (including executing documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
14.8 Severability
If the whole or any part of a provision of this agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
14.9 Enforcement of indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
14.10 Survival
Any indemnity or obligation of confidentiality in this agreement is independent and survives termination of this agreement. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
14.11 Attorneys
Each person who executed this agreement on behalf of a party declares that he or she has no notice of the revocation or suspension by the grantor or in any other manner of the power of attorney under the authority of which he or she executes this agreement.
14.12 Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
14.13 Relationship
Except where this agreement expressly states otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
14.14 Remedies cumulative
The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
14.15 Governing law
This agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the parties, by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
14.16 Exercise of rights
A party may exercise a right, at its discretion and separately or concurrently with another right.
14.17 Non-Solicitation
During the Term and for six months after the termination or expiry of this agreement, neither party will solicit for employment, either directly or indirectly, any person who is employed or contracted by the other party who is involved in the provision of the Services, provided that a party may employ or contract any such person who responds to a public advertisement for a role with that party or who is referred to that party by a recruitment agency.
15. Digital and Website Services
15.1 Website Design and Development
Topham Guerin ("TG") agrees to design and develop a website for the Client in accordance with the specifications provided in the Statement of Work. TG specialises in creating responsive designs on Webflow, NationBuilder, and WordPress platforms, ensuring functionality on various devices and browsers. The selection of platform will be based on the project requirements outlined in the proposal and/or Statement of Work. Design iterations and development will adhere to agreed scope, timelines outlined in the statement of work with any changes to the project scope subject to approval and potential additional costs.
We design with both accessibility and cross-browser compatibility in mind, working to make the website usable for as wide an audience as possible. We optimise for the latest versions of major browsers, including Google Chrome, Mozilla Firefox, Apple Safari, and Microsoft Edge. However, the specifics of browser compatibility, device support, and accessibility standards will be agreed upon and clearly defined in the Statement of Work.
15.2 Content
The Client is responsible for providing all content, including but not limited to, text, images, video, and audio, unless otherwise specified in the Statement of Work. This content must comply with all applicable laws and regulations, and must not infringe on any third-party rights. TG is not liable for any legal infractions resulting from the content provided by the Client. Content writing and input services are available at an additional cost if requested by the Client and detailed in the Statement of Work.
15.3 Testing, Acceptance and Bug Fixing
Upon completion of the agreed-upon scope of work, Topham Guerin ("TG") will provide the Client with an opportunity to review and test the services before the final launch ('Handover'). Acceptance is deemed to have occurred when the Client provides written confirmation of acceptance, or five (5) calendar days after Handover (Go live of website), whichever comes first.
Following Handover, TG offers a 30-day bug fixing period. During this time, we will rectify any issues in the software application, coding, or design provided by TG. It should be noted that requests for new features, design/usability adjustments, or changes to previously finalised items are not included in this bug fixing period and may incur additional charges. TG is not liable for bugs related to third-party software or works provided by third parties unless expressly specified in the Statement of Work.
15.4 Managed Hosting and Maintenance
Upon completion and approval of the website, TG offers a Managed Hosting and Maintenance service. This includes hosting the website on our secure, third-party servers and conducting regular maintenance to ensure smooth operation. This service will include regular backups, security checks, and updates to the website's platform, plugins, and themes to keep it current with digital standards.
Maintenance does not include any major changes or additions to the website after completion, such as adding new pages, redesigning existing pages, or adding new functionalities. These will be considered new projects and will be billed separately or covered in an applicable support contract that has been agreed upon.
The Client is under no obligation to contract TG for post-development Support and Maintenance services. However, in cases where the Client opts not to use TG's Support and Maintenance services following the 30-day bug fixing period, TG cannot guarantee the continuous performance of the site and is not responsible for any issues that may arise post-handover.
The specifics of these services, including prices and terms, will be outlined in a separate support proposal. TG reserves the right to change the terms of its services at any time, with prior notice given to the Client.
