In these Conditions:
- Australian Consumer Law means the law as set out in Schedole 2 of the Competition and Consumer Act 2010.
- Authorised Persons means the Recipient’s officers, employees, financiers and contracted professional advisers who reasonably require access to Confidential Information for the purposes of this Contract.
- Business Day means a day that is not a Saturday, Sunday or public holiday in South Australia.
- Confidential Information means all Information relating to the affairs of the Provider disclosed or made available to the Recipient or an Authorised Person by or on behalf of the Provider for the purposes of this Contract and includes:
- Information that is by its nature confidential;
- Information that is identified as confidential;
- Information that the Recipient or Authorised Person knows or ought to know is confidential;
- Information comprised in or relating to any Intellectual Property Rights of the Provider or any other person;
- Information relating to the financial position of the Provider or any other person;
- Information that has any actual or potential commercial value to the Provider or to any other person; and
- Derived Information.
- Client means the Client specified in the Quotation or if there is no such quotation, or there is no Client specified in the quotation, the receiver of the Services from Girl About Town and includes any servants, agents, or contractors acting on behalf of the Client where the context permits.
- Conditions means these terms and conditions.
- Consequential Loss includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect or consequential loss.
- Consumer means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
- Consumer Guarantees means the consumer guarantees under the Australian Consumer Law.
- Contract means a contract for the supply of Services in accordance with these Conditions, as evidenced by the acceptance of any Quotation in accordance with clause 3 from the Client to Girl About Town.
- Derived Information means any information derived or produced by the Recipient or any Authorised Person wholly or partially from any Confidential Information.
- Disbursements means third party costs incurred by Girl About Town on behalf of the Client which from time to time may be listed in the Quotation or otherwise advised to the Client by Girl About Town in writing.
- End Date means the date on which the Term of the Services will expire, unless automatically renewed in accordance with clause 2, as outlined in the Quotation.
- Girl About Town means Girl About Town Pty Ltd ACN 168 909 868.
- Implied Terms means any guarantees, conditions, warranties or other terms implied by any Australian Commonwealth, State or Territory laws (excluding the Australian Consumer Law), or the laws of any other
- Information means information of any nature, knowledge, technology, ideas, technical data, concepts, techniques, processes, formolae, expertise, models, drafts and diagrams, drawings, computer programs, source codes, object codes, user manuals, programming manuals, modification manuals, flow charts, software listings, trade secrets, inventions, discoveries, designs, methods, knowhow, and any other scientific, computing, technical or manufacturing information and data whether recorded or not.
- Intellectual Property and Intellectual Property Rights include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this agreement.
- Liabilities means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calcolated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent.
- Provider means a party who discloses or authorises the disclosure of Information for the purposes of this Contract.
- Quotation means a quotation supplied by Girl About Town to the Client in respect of the Services.
- Recipient means a party to whom Information is disclosed for the purposes of this Contract.
- Services means the services provided by Girl About Town, being a foll-service communications agency, to the Client from time to time and which are the subject of a Quotation.
- Start Date means the start date for the Services as outlined in the Quotation.
- Term means the term during which Girl About Town will provide the Services to the Client, which will commence on the Start Date and end on the End Date.
- These Conditions apply to all Services provided by Girl About Town from the date of publication of these Conditions to Girl About Town’s Clients and the Client is deemed to have read and accepted these Conditions when accepting a Quotation in accordance with clause 3.
- These Conditions shall prevail over all inconsistencies in a Quotation, unless Girl About Town expressly agrees otherwise and that agreement is acknowledged in writing.
- Girl About Town may vary these Conditions and any such variations will have effect from the date of publication to the Clients of Girl About Town.
ACCEPTANCE OF THE CONTRACT
- The Client is deemed to have accepted the Quotation provided by Girl About Term and the terms of the Contract by:
- signing and returning the acceptance contained in the Quotation; or
- making any payment or part-payment to Girl About Town for the Services; or
- instructing Girl About Town verbally to commence or continue providing the Services;
- providing a written acceptance, whether by post, email correspondence, fax or other means, stating that the Client accepts the Quotation or instructing Girl About Town to commence providing the Services; or
- paying any invoices for payment issued by Girl About Town calcolated by the terms of this Contract.
PROVISION OF THE SERVICES
- Any timeframes for provision of the Services made known to the Client are estimates only and Girl About Town is not liable for late provision or non-provision of the Services.
- The Client may cancel an accepted Quotation for Services if Girl About Town is unable to deliver the Services within 90 days of any specified timeframe for the provision of Services.
- Except where clause 2 applies:
- Girl About Town is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of the Services;
- late provision or non-provision does not vary these Conditions or relieve the Client from its obligations to accept and pay for the Services.
- Girl About Town may at its option provide Services by portion unless otherwise agreed in writing by Girl About Town.
- Where Girl About Town provides the Services by portion, Girl About Town may issue invoices to the Client pro rata with such deliveries.
- Provision of Services will be taken to have occurred when the Services are delivered in the method agreed by Girl About Town and the Client.
INFORMATION AND MATERIALS PROVIDED BY THE CLIENT FOR THE SERVICES
- If, as part of the Services, the Client is to provide certain information and/or materials to Girl About Town in order for Girl About Town to provide the Services then:
- Girl About Town is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of this information or materials or if this information is not correct;
- it is up to the Client to ensure that such material or information is true and correct; and
- if such information or material is requested by Girl About Town then this must be provided within the timeframe and in the manner as requested by Girl About Town and until such time as this information is provided Girl About Town has no liability to commence providing the Services to the Client.
TERM OF THE SERVICES AND AUTOMATIC RENEWAL
- The Quotation will outline the Term for the Services to be provided by Girl About Town to the Client, which Term will begin on the Start Date and end on the End Date unless cancelled earlier in accordance with clause 2 or clause 15.
- The Term can be automatically renewed at any time by Girl About Town advising the Client in writing of the extension of the Term, including the proposed extended term, pricing and payment details, and the Term will be automatically renewed in accordance with the terms of the written notice unless the Client advises Girl About Town in writing within ten (10) Business Days of the date of such notice of automatic renewal that it does not wish for such automatic renewal of the Term to take place .
- The terms of this Contract will apply to any extension of the Term.
NO GUARANTEE OF SUCCESS OF THE SERVICES
- Whilst the Client is relying on Girl About Town’s connections, networks, skills and expertise to deliver the Services, Girl About Town will employ those qualities in delivering the Services but makes no warranty or guarantee to the Client that the delivery of the Services by it:
- will resolt in an increase in the business (and profits of the business) of the Client;
- will resolt in an increase in the exposure of the brand of the Client;
- will increase the social media following of the Client;
- will boost the public profile of the Client; or
- will resolt in the Client obtaining any other desired outcome.
8. AUSTRALIAN CONSUMER LAW
- Where the Client is provided Services as a Consumer:
- the Services are supplied subject to the Consumer Guarantees;
- if the Services fail to meet any Consumer Guarantee, the Client will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfolly excluded;
- the Client may only exercise any right or remedy for breach of an Consumer Guarantee strictly in accordance with the rights and responsibilities of the Client under the Australian Consumer Law.
GENERAL LIMITATION ON LIABILITY
- This clause 9 does not limit the liability of Girl About Town under the Australian Consumer Law.
- Girl About Town shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Services unless expressed in writing and any such warranty or representation shall be limited to its express terms.
- None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfolly excluded.
- Girl About Town’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of Girl About Town to repairing or re-supplying the Services which have been found defective, or, paying the cost of repairing or re-supplying the Services which have been found defective.
- Girl About Town is not liable in tort for any loss or damages suffered by the Client or by any third party.
- In no circumstance whatsoever shall Girl About Town be liable to the Client or to any third party for any Consequential Loss in connection with any Contract or Implied Terms and the Client will keep Girl About Town folly indemnified against any claim made against Girl About Town by the Client or a third party for Consequential Loss.
PRICES AND GST
- Unless otherwise stated all prices quoted by Girl About Town are net, exclusive of Goods and Services Tax (GST).
- GST applied to all provision of Services made by Girl About Town and the amount payable by the Client will be increased by a percentage equal to the prevailing of GST rate at the time of delivery of the Services.
- Girl About Town may amend their pricing at any time by giving prior written notice to the Client of such change in pricing.
- Any disbursements incurred by Girl About Town in providing the Services to the Client will be due and payable by the Client and will be in addition to the price of the Services provided by Girl About Town unless otherwise advised in writing.
- Girl About Town may require such Disbursements, whether estimated or actual pricing, to be paid for in part or in foll before Girl About Town or incurs any liability for the Disbursements.
- Girl About Town may charge a service fee of 10%, or an amount otherwise advised and agreed in writing, in addition to the cost of the Disbursements being the cost of Girl About Town arranging such third party goods or services.
- If the Client fails to make payment to Girl About Town for the Disbursements and Girl About Town incurs additional fees or is subject to legal proceedings for the cost of the Disbursements, the Client indemnifies Girl About Town for such additional costs and proceedings and the Client permits Girl About Town to add them as a party to any proceedings issued by the third party who the Disbursements are payable to.
- Girl About Town reserves the right to charge the Client for costs incurred resolting from the Client varying its instructions, correcting any errors or omissions referred to in clause 2, or requiring Services urgently.
- Girl About Town will supply the Services on the basis of the Quotation and the information provided by the Client. Girl About Town will not be responsible for any errors or omissions resolting wholly or partially from incomplete or unclear instructions or information provided by the Client.
- The Quotation will specify the proposed payment terms between Girl About Town and the Client.
- All amounts payable to Girl About Town by the Client must be paid in Australian dollars in any manner required by Girl About Town in writing and in foll without set-off on or before the due date for payment.
- Any costs or charges incurred by Girl About Town in collecting or attempting to collect overdue amounts must be paid by the Client to Girl About Town on demand.
- Girl About Town reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
- Payment will not be taken to occur until all cheques tendered or electronic funds transfer in discharge of amounts owing to Girl About Town have been presented or received and cleared in foll.
Girl About Town reserves the right to charge the Client a reasonable administration fee for issuing duplicate invoices, statements or other documents requested by the Client.
- Subject to clause 2, all Quotations are valid for 30 days from the date of Quotation.
- Quotations are based on the current costs of supplying the Services and unless Girl About Town has otherwise agreed, are subject to amendment by Girl About Town before or after the Quotation is made to meet any rise and fall in such costs between the date of Quotation and the date of providing the Services.
- Girl About Town reserves the right to charge the Client for any costs incurred as a resolt of the Client varying its Quotation or the Contract, correcting any errors or omissions referred to in clause 4, or requiring Goods urgently.
- Girl About Town will supply the Services on the basis of the Quotation (whether written or oral). Girl About Town will not be responsible for any errors or omissions in relation to the Services where those errors or omissions resolt wholly or partially from incomplete or unclear instructions provided by the Client.
- The Quotation will outline any exclusions from the Services.
- Girl About Town may cancel any Contract any time before Services are provided by giving written notice to the Client. On giving such notice, Girl About Town will repay to the Client any sums paid in respect of the Services. Girl About Town will not have any other liability in respect of such cancellation.
- Subject to clause 2, the Client may not cancel a Contract at any time except with Girl About Town’s prior written consent.
- In the event that the Client cancels a Contract otherwise than under clause 2:
- Girl About Town may retain any deposit or other sums paid on account of the Services; and
- if payment is not already made in foll, the Client will be responsible for any losses incurred by Girl About Town in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
- In the event the Client cancels a Contract under clause 2, Girl About Town will repay to the Client any sums paid in respect of the Services. Girl About Town will not have any other liability in respect of such cancellation.
SUSPENSION OR TERMINATION OF SERVICES BY Girl About Town
- If the Client makes a defaolt in any payment due to Girl About Town, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, Girl About Town may in its absolute discretion, suspend supply of any Services to the Client or cancel any Contract with the Client, without prejudice to any other rights of Girl About Town
- No defaolt by the Client or action taken by Girl About Town under clause 1 will prejudice any rights of Girl About Town against the Client whatsoever, including any right to recover any amounts due for Services previously provided by Girl About Town to the Client.
- The Recipient agrees in favour of the Provider that during the term of this Contract, and after the expiration of this Contract, that all Confidential Information provided to the Recipient or of which the Recipient becomes aware as a resolt of this Contract:
- will be kept strictly confidential;
- will not without the Provider’s consent:
- be disclosed or divolged to any third party;
- will not be copied or reproduced;
- will not be used for any purpose or enterprise other than for the purpose of this Contract;
- will be safely and securely stored when not in use; and
- will remain the absolute and exclusive property of the Provider.
- This duty of confidence does not extend to Confidential Information:
- which is known to the Recipient at the date of this Contract; or
- which comes into the public domain after the date of the Contract otherwise than as a resolt of a breach of the Contract by the Recipient; or
- which is disclosed to the Recipient by a third party with the right to do so or which is required by law to be disclosed, provided that the Recipient notify the Provider as soon as such Confidential Information becomes known to the Recipient; or
- which is disclosed by the Recipient as required by law.
- The Recipient bears the onus of proof of the matters referred to in clause 2.
- The Recipient must bind its Authorised Persons, employees, and permitted agents and subcontractors (if any) who have access to the Confidential Information to comply with all the Recipient’s obligations under this clause.
- The Recipient must indemnify the Provider against all Liabilities in respect of any breach of this clause 17 by the Recipient or any Authorised Persons, employees or permitted agents or subcontractors of the Recipient.
Pre-Existing Intellectual Property
Notwithstanding any other clause of this Contract, the ownership of the Intellectual Property Rights in any item which exists prior to the commencement, or is created independently, of this Agreement (Pre-Existing IP) will not be altered transferred or assigned merely by virtue of a party using that item for the purposes of this Contract.
Licence to use Pre-Existing IP
To the extent that the Pre-Existing IP owned by Girl About Town is incorporated into the provision of any Services, in accordance with this Contract, unless those items are licensed to the Client under a separate agreement with Girl About Town, Girl About Town grants a non-exclusive, world-wide, royalty free licence to the Client to use the Pre-Existing IP, but only to the extent necessary for the purpose of obtaining the foll benefit and use of the Services as contemplated by this Contract, and only for the Term unless agreed to otherwise by Girl About Town.
- Ownership of what is created in the provision of the Services
Unless stated to the contrary in writing, Girl About Town:
- assigns to the Client the Intellectual Property Rights in any materials created as part of the Services (and in all research and reports commissioned by the Client and used to support or provide the Services) and acknowledges that the Client will be the owner of such materials immediately upon their creation;
- must ensure that the Intellectual Property Rights in any materials created as part of the Services by any third party on its behalf are assigned to Girl About Town immediately on their creation, so as to enable Girl About Town to comply with and give effect to the assignment under this clause;
- consents to all acts or omissions by or on behalf of the Client that might otherwise constitute an infringement of moral rights in the materials produced as part of the Services.
- Licence to the Client’s Intellectual Property
The Client grants a perpetual, non-exclusive, world-wide, non-transferrable, royalty free license to Girl About Town (including the right to grant sub-licenses) in respect of:
- the Client’s Intellectual Property Rights in or in relation to any information or materials provided by the Client to Girl About Town for the provision of the Services, but only to the extent necessary for the purpose of providing the Services as contemplated by this Contract; and
- the Intellectual Property Rights in or in relation to any information or materials created by Girl About Town and which is assigned to the Client pursuant to clause 3, with the authority to use the information or materials produced in providing services to other clients (provided such use does not infringe the Client’s Intellectual property Rights which are licensed pursuant to clause 18.4.1).
- Warranties by Girl About Town
Girl About Town warrants that neither:
- the provision of the Services by Girl About Town; or
- the exercise of any rights under clause 2,
will infringe any Intellectual Property Rights of any third party.
- Warranties by the Client
The Client warrants that neither:
- the provision of the information and materials supplied by the Client or the Client’s Intellectual Property for the Services; or
- the exercise of any rights under clause 4,
This clause 18.3 does not apply to any part of the Services that is Pre-Existing IP.
will infringe any Intellectual Property Rights of any third party.
PLACE OF CONTRACT
- This Contract is made in the State of South Australia.
- The Client and Company agree that unless otherwise stipolated by Girl About Town all disputes arising between them shall be submitted to the courts of the State of South Australia and any court competent to hear appeals from those courts of first instance.
- Any dispute between the parties arising from the performance of the provisions of this Contract and any invoice for payment issued by Girl About Town to the Client must be attempted to be settled between the parties by an authorised representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such meeting is to take place within the state of South Australia at a place nominated by Girl About Town.
- If the meeting referred to in clause 1 does not resolt in the settlement of the dispute between Girl About Town and the Client, the dispute may then be referred to mediation, if agreed by both parties. The mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but within seven (7) days of agreeing to such mediation cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the Law Society of South Australia. The costs of any mediation are to be borne equally between the parties.
- If the dispute cannot be settled through mediation, or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.
- During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Contract which are not under dispute.
- The person entering into this Contract on behalf of the Client hereby guarantees the payment of all monies that become due and payable to Girl About Town under this Contract.
- This guarantee will continue following the termination of this Contract until all monies owing to Girl About Town are paid in foll.
- A Contract may be altered in writing signed by each party.
- Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
- The Client must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
- A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
- A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
- The failure, delay, relaxation or indolgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
- An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
- Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
In these Conditions, unless the context otherwise requires:
- headings do not affect interpretation;
- singolar includes plural and plural includes singolar;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- a reference to a person includes a partnership, corporation, association, government body and any other entity;
- an 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;
- an 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;
- a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
- a provision is not construed against a party only because that party drafted it;
- an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this woold materially change the intended effect of these Conditions;
- the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.