Terms of Business
1. Application
1.1 The following Terms apply to all Orders for Services by you from Philbo Pty Ltd as trustee for A Green You Can Trust and The Kutsch Group Pty Ltd as trustee for The Kutsch Group Trust, trading as Red Herring Digital (ABN 45 617 061 537) (us, we, our or RHD). Each Order is a separate agreement between you and us for the Services specified in the Order and these Terms will apply to each of those Orders. A contract is made when you accept an Order. You will be deemed to have accepted an Order when you sign the Order or if you otherwise approve or instruct us to provide the Services the subject of the Order. By accepting an Order you agree you have read these Terms and will be bound by them and the terms of the Order. If there is any inconsistency between these Terms and the terms of an Order, the terms of the Order will prevail to the extent of the inconsistency.
1.2 Subject to clause 1.3, we may change the terms of an Order or these Terms from time to time in our sole discretion. We will promptly notify you of any change made.
1.3 We must obtain your prior written consent to change the terms of an Order where that change adversely affects your rights or obligations, amends the Services we provide under the Order or the price of those Services. If we change these Terms in a manner that adversely affects your rights or obligations:
(a) we will provide you with a copy of the revised Terms; and
(b) if you do not like the change, you may notify us within 5 days of being provided with the revised Terms that you wish to terminate the Order. In that case, the Order will terminate 10 days after receipt of your notice and clause 6.3 will apply. If you do not notify us within 5 days of being provided with the revised Terms, you will be taken to have agreed to those new Terms and they will be binding on you.
1.4 If you are not a natural person:
(a) You warrant that, if you are a company, the company is duly incorporated in Australia and has the power and authority to enter into the Agreement on the terms set out herein;
(b) You will comply with all statutory provisions, regulations, orders and/or by-laws of any government, municipal or statutory authority which relate to the provision of the Services;
(c) You warrant that any person that places an Order on your behalf is duly authorised to do so and will also do so as agent for each of your related entities that use or access the Services; and
(d) You must procure that your Personnel comply with the Agreement and you take responsibility for the acts and/or omissions of your Personnel.
1.5 You warrant:
(a) The Agreement constitutes a legally valid and binding obligation on you, enforceable in accordance with its terms;
(b) You have exercised your own judgment in entering into the Agreement and have not relied on any warranty and/or representation made by RHD or its Personnel, save as specifically set out in the Agreement.
2. Quotes and Orders
2.1 We will provide you with a Quote describing details of the Services that we will supply and the Fees that will be payable.
2.2 Where Fees will be calculated based on Hourly Rates, we will provide you with an estimate of the total Fees payable by you.
2.3 Once accepted by you, a Quote becomes an Order and these Terms apply to it. We may refuse to accept an Order (or part of it) on reasonable grounds.
2.4 If you provide us with new or additional instructions or information or undertake or omit to undertake any act which results in us being required to provide you with additional and/or altered Services (such as increasing your expenditure with third parties), we will provide you with a new Quote. If you do not accept the new Quote, then we will not be obliged to provide those additional and/or altered Services.
3. Supply of Services
3.1 You agree that RHD will supply the Services to you, and RHD agrees to supply the Services to you, subject to and in accordance with these Terms and the terms of the Order.
3.2 You agree that the Services may be supplied by our Personnel, related parties, subsidiaries and other associates of RHD.
3.3 Where the Services to be supplied by us constitute Ongoing Services, you agree that:
(a) The Services must be supplied for the Minimum Term;
(b) The Minimum Term will be automatically renewed unless you provide us with written notice within 7 days prior to the expiry of the current term that you do not want us to continue to supply the Ongoing Services.
3.4 Where the Services are supplied on a Retainer Engagement basis you acknowledge and agree that:
(a) this is not a “fixed fee” service and RHD will charge for Services provided at its Hourly Rates (as in force from time to time);
(b) RHD may elect for an upfront payment (either as a once off or ongoing basis) to account for the provision of the Services; and
(c) RHD is permitted to suspend the Services where any invoice remains outstanding pursuant to its Payment Terms or any upfront payment has been fully expensed against the Services provided to date.
4. Fees and Payment Terms
4.1 We will invoice you for the Fees in accordance with the terms of the Order. You agree to pay the Fees to RHD in accordance with the Payment Terms.
4.2 If we incur Expenses on your behalf you must pay to us the amount of those Expenses in accordance with clause 5. We are also entitled to charge you an additional Fee equal to an amount of 15% of the Expenses incurred, to cover RHD’s costs including our administration and management costs.
4.3 To the extent an Order includes an advertising spend as part of the Services, those amounts will be payable by you in accordance with clause 5 as an Expense or Third Party Charge. We are also entitled to charge you an additional Fee equal to an amount of 3% of the agreed advertising spend to cover our costs associated with providing the advertising Services. For the avoidance of doubt, this Fee is in addition to the Fee mentioned in clause 4.2.
4.4 The Fees, Expenses and Third Party Charges are exclusive of GST and other taxes, duties, levies, except as otherwise provided.
4.5 Should you fail to make any payment to us as it falls due, we reserve the right to suspend the performance of the Services until that payment is made or to terminate the Order if you fail to make payment within 5 days of us requesting payment from you. If we terminate the Order, clause 6.3 will apply.
4.6 Interest at a rate of 2% per annum plus the rate for the time being fixed by section 2 of the Penalty Interest Rates Act 1983 calculated daily is payable on any money owing under any invoice issued to you by RHD which becomes overdue pursuant to the applicable Payment Terms.
5. Expenses and Third Party Charges
5.1 We will notify you of any reasonably known or anticipated Expenses and Third Party Charges in the Order, or as soon as reasonably practicable after becoming aware of them. We will seek your consent prior to incurring any Expenses or Third Party Charges not otherwise included in the Order.
5.2 You must reimburse us on demand for any Expenses or Third Party Charges we pay on your behalf, unless otherwise notified by us. We will invoice you for those Expenses or Third Party Charges in accordance with the terms of the Order or, if no terms are included in the Order, monthly in arrears.
5.3 Unless specifically described in the Order, the Fees exclude all non-standard or premium third-party content, which will be charged to you as an Expense or payable by you as a Third Party Charge.
6. Cancellations and Terminations
6.1 Either party may terminate an Order for any reason by the provision of 30 days’ notice.
6.2 Either party may terminate an Order immediately upon notice to the other party if the other party:
(a) breaches any term of this Agreement and the breach is incapable of remedy;
(b) breaches any term of this Agreement and, where the breach is capable of remedy, the breach is not remedied within 5 days of being notified by the non-breaching party of the breach;
(c) subject to applicable laws, is or is likely to be declared bankrupt or insolvent (or suffer an analogous event).
6.3 If an Order is terminated for any reason, then (in addition to any other rights or remedy available to a party):
(a) All amounts owing to us (including any Fees, Expenses or Third Party Charges) become immediately due and payable;
(b) Services rendered, undertaken or completed by us and not yet invoiced to you will be invoiced and must be paid by you in accordance with the Payment Terms;
(c) We will stop supplying or undertaking the Services;
(d) Each party must return to the other party all materials and property belonging to the other party that the other party had supplied to it in connection with the supply of the Services under this Agreement; and
(e) Where an Order is terminated by you (other than due to our breach of the terms of the Agreement), you must pay and indemnify us in respect of any third-party costs incurred by us in connection with or as a result of your termination of the Order (such as third-party cancellation fees).
6.4 Termination of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the agreement that existed at or before the date of termination.
7. Your Obligations
7.1 You must provide to us sufficient information with an Order (including any special requirements) to enable us to provide you with the Services.
7.2 You agree that you will provide all information, materials or content reasonably requested by us in connection with the provision of the Services as soon as reasonably practicable, including but not limited to business and marketing information, materials or content; information, materials or content required by any third party engaged to perform any part of the Services; account information; materials relating to your Intellectual Property Rights; and other access information, and acknowledge and agree that your failure to do so may impede our ability to provide the Services.
7.3 You agree that you will inform us as soon as practicable upon any information provided by you to us being varied or updated, or which is otherwise changed or no longer current or in its original form.
7.4 You agree that you will immediately inform us in writing in the event you become aware of any claim by a third party (including in relation to the infringement of any laws or rights of that third party) in connection with any information, materials or content you provide to us.
7.5 You agree that you will take any action reasonably requested by us in the provision of the Services and that you will take any action reasonably required to facilitate our due performance of the Services.
7.6 You warrant that all information you provide to us is correct and you have not omitted anything that is relevant to our provision of the Services. You acknowledge that our provision of the Services is contingent on correct and current information being provided by you which RHD relies upon in order to provide the Services.
7.7 You are required to provide us with at least 5 days’ notice of any content that needs to be distributed by us on a time-sensitive basis. If you send us content that must be distributed within 5 days or less, additional Fees and Expenses may apply.
8. Indemnity
8.1 Subject to clause 8.2, you indemnify us and must keep us indemnified from and against and pay us on demand for any and all Losses we suffer where such Loss arose out of, or in connection with:
(a) Your acts and/or omissions;
(b) Your breach of these Terms;
(c) Material provided by you in breach of a third party’s Intellectual Property Rights or the law, including laws relating to misleading deceptive conduct or false advertising under the Australian Consumer Law (unless advising on the applicability of these laws forms part of the Services); or
(d) Any claim by a third party engaged by us in relation to your use of the services provided by that third party;
(e) Your use of the Services in a manner which is inconsistent with any use specified by us.
8.2 The indemnity in clause 8.1 will not apply to any Loss where that Loss was due to, or increased as a result of, our wilful breach of this Agreement or our negligence.
8.3 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Agreement and any Order. It is not necessary for a party to incur expenses or make any payment before enforcing a right of indemnity conferred by this Agreement. You must pay on demand any amount you must pay under an indemnity in this Agreement.
9. Exclusion and Limitation of Liability
9.1 The Services will be performed with due care and skill and by adequately trained Personnel. However, we make no guarantee that the Services will be continuous or fault free, unless otherwise specified in an Order.
9.2 Clause 9.1 does not exclude any implied warranty or statutory guarantee that cannot be excluded at law.
9.3 The Services come with guarantees that cannot be excluded under the Australian Consumer Law, known as Consumer Guarantees. If the Australian Consumer Law applies to our Order with you and a Service fails to meet a Consumer Guarantee then depending on the nature of the failure (minor or major) you have a right to a remedy. Under the Australian Consumer Law, if there is a major failure, you may choose to cancel the Order and pay a reasonable amount for the work done, or seek a refund for money already paid; or keep the Order and negotiate a reduced price for the drop in value of the Service, this may mean asking for some of your money back if you have already paid. You also have the right to recover damages for any reasonably foreseeable loss or damage as a result of the major failure. If the failure to comply with a Consumer Guarantee is a minor failure, we will remedy the failure within a reasonable time. To the extent permitted by law, we exclude all other guarantees, warranties, undertakings and representations expressed or implied, whether arising by statute or otherwise, which are not given in these Terms, under the Australian Consumer Law or any warranty document given at the time of supply.
9.4 Without limiting the above, and to the extent permitted by law, we exclude liability for any Loss, and you release us from any claims relating to Loss:
(a) Caused by or contributed to by you or to the extent it results from your failure to take reasonable steps to avoid or minimise that Loss;
(b) Caused by events falling outside our reasonable control;
(c) Caused by any third party engaged to perform any part of the Services (other than a third party which we agree we will be liable for);
(d) That is consequential loss or damage (including loss of actual or anticipated profits or revenue, economic loss of any kind or any loss suffered as a result of any claim or claims by third parties) in contract, tort (including negligence), under statute or otherwise from or in relation to the Services or this Agreement;
(e) In connection with your breach of any Intellectual Property Rights of a third party or any laws relating to misleading deceptive conduct/false advertising under the Australian Consumer Law (unless advising on compliance with those laws forms part of the Services); or
(f) Caused by a breach of contract by you.
9.5 RHD makes no representation as to the fitness of the Services supplied by it for any purpose, other than as required by the Australian Consumer Law or any purpose that has been agreed by RHD and you.
9.6 In all cases where liability cannot be excluded under this Agreement or at law, the liability of RHD is limited, to the following as determined by the RHD at its absolute discretion (where fair and reasonable to do so):
(a) A refund of the actual Fees paid by you to RHD under the relevant Order prior to the date on which the liability first arose;
(b) Supplying the Services again; or
(c) Payment of the cost of having the Services supplied again.
10. Law and Jurisdiction
This Agreement and the Order shall be governed by the laws in force in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts having jurisdiction to hear appeals from those courts.
A reference to any law includes a statutory modification, substitution or re-enactment of it.
11. Dispute Resolution
11.1 If a dispute arises under these Terms, the party claiming that a dispute has arisen must give notice to the other party specifying the nature of the dispute and the parties will attempt to negotiate a resolution in good faith.
11.2 If a dispute persists for more than 14 days, either party can refer the dispute to mediation before a mediator to be appointed by the Resolution Institute. The costs of mediation will be shared by the parties equally.
11.3 Save for seeking urgent interlocutory or injunctive relief, neither party may issue court proceedings in relation to a dispute until resolution by mediation has been attempted.
12. Entire Agreement
By accepting the Services subject to the conditions in this Agreement, you agree that you did not rely on any representation, promise, warranty or condition of RHD or any of its Personnel not expressly made (in writing) as part of this Agreement. The Agreement is the entire agreement between you and us in relation to its subject matter.
13. Assignment
Neither party may assign this Agreement without the prior written consent of the other party.
14. Severance and Waive
You agree that if any provision or part of any provision of this Agreement is unenforceable, such unenforceability shall not affect the application of any other part of such provision or any other provision hereof. Further, should RHD elect not to exercise any of its rights under this Agreement, under any other contract/agreement or under law, such election shall not constitute a waiver of any rights relating to any other or subsequent breach by you.
15. Reasonable Care / Force Majeure
RHD will not be liable for any delay or failure in the performance of any obligation or the exercise of any right under this Agreement (other than an obligation to pay money due) or for any loss or damage if such performance or exercise is prevented or hindered in whole or in part by reason of an event beyond RHD’s reasonable control.
16. Privacy
We must comply with our obligations under the Privacy Act 1988 (Cth), the Australian Privacy Principles and with our Privacy Policy available on our website at redherring.net.au/privacy-policy/.
17. Intellectual Property
17.1 Any and all materials existing or created by RHD in providing the Services, including all associated Intellectual Property Rights, are the exclusive property of RHD and/or our licensors, or authorised third parties.
17.2 Subject to clause 17.3, you will not acquire any rights, including but not limited to Intellectual Property Rights, in any materials created by RHD in providing the Services, any materials created that are improvements on material provided to us by you, or any material or content previously created by us.
17.3 We grant to you a non-exclusive, terminable, non-transferrable and non-sub-licensable licence to use the Intellectual Property Rights for the sole purpose of using the Services in the ordinary course of your business and subject to any additional conditions agreed in the Order.
17.4 You must not remove, alter or obscure any Intellectual Property Rights used in the material provided as part of the Services. You must not use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, claim or pass off as your own, or otherwise exploit the material provided in the Services, except to the extent required in connection with your use of the Services.
17.5 RHD may agree with you to assign to you in full any or all Intellectual Property Rights created in providing the Services at a separate fee and under a separate agreement to be negotiated by the parties.
17.6 If you supply us with any content or Intellectual Property Rights in any form, you represent and warrant that you have the full rights to use (and have us use) the content in our provision to you of the Services and you grant to us a non-exclusive, terminable, transferable and sublicensable licence to use those Intellectual Property Rights for the sole purpose of performing the Services.
17.7 You must indemnify and keep indemnified us from any third-party claim in respect of the use of any content or Intellectual Property Rights provided to us by you.
17.8 You acknowledge and agree that where the Services result in the creation of a website or the creation of content or of Intellectual Property Rights that belong to us, we are entitled to be recognised as the creator of those Intellectual Property Rights, content or website, and that you must insert the words ‘[X insert appropriate service name X] by RHD’ on that content, website or Intellectual Property Rights.
18. Confidential Information
18.1 You must not disclose any information that you have obtained through your relationship and engagement with us and that we regard as confidential (including without limitation the Intellectual Property Rights created in our provision of the Services) except to the extent required in connection with your use of the Services or as otherwise required by law.
18.2 You acknowledge and agree that we may, subject to the terms of our Privacy Policy, disclose to any person such details and information (including any confidential information) regarding you or any information provided to us by you, your use of the Services (or any other matter related or incidental to the Services), as we deem necessary or desirable in connection with the Services.
19. Third Parties
The Services may require us to use the services of third parties that are not under our control. We are not responsible for the content or work provided by third parties. You acknowledge that we are not responsible whatsoever should there be a failure by a third party to provide necessary work or services to us and release us from all claims relating to those third-party services.
20. Unfair Terms to be Read Down
20.1 If any law making unfair contract terms void could apply to a term in these terms, the rules in this clause 20 apply to interpreting that term.
20.2 If the law would make the term void because the term permits us to exercise a right or discretion in a way that would cause detriment to you, the term shall be read down and construed to the extent as not to permit us to exercise the right or discretion in such a way.
20.3 If the law would make the term void because it authorised us to recover costs or losses or damages to be calculated in a way we chose, the term shall be read down and construed as authorising us to recover the maximum reasonable costs, losses and damages to be calculated in a reasonable way that did not cause the term to be void.
20.4 If, despite the application of this clause, the law would make the term void, the term is to be read down and construed as if it were varied, to the minimum extent necessary, so that the term is not void. These reading-down rules apply before any other reading-down or severance provision in these terms and conditions.
21. Creative Services
21.1 If the Services comprise creative services, those Services are limited to the provision of a rough concept, an initial draft and two further rounds of amendments. Any work beyond that will incur additional Fees charged at our Hourly Rates, unless provided otherwise in a Quote.
21.2 You will be sent art direction, which must be approved by you prior to filming occurring. All videos include Envato royalty-free music.
21.3 On completion of the creative services, you will be provided with an exported file containing the complete work product. For the avoidance of doubt, you will not be provided with, and will have no right to receive, a source file.
22. Website Maintenance and Hosting Services
22.1 If the Services comprise website maintenance and hosting services, the Fees provided in the quote exclude any hosting-migration services in excess of one hour. If hosting migration exceeds one hour, our Hourly Rates apply.
22.2 If your website has existing security threats, this will need to be resolved at our Hourly Rates before migration takes place.
22.3 When new security threats occur, your website will be restored to a previous backup to avoid the threat. This excludes our Gold Package.
23. GST
23.1 The parties agree:
(a) Terms used under these Terms and any Quote have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999;
(b) You must pay to RHD any amount of GST that you are required to pay at the same time and in the same manner as you are required to pay the consideration for the supply to which the GST relates;
(c) RHD must issue a tax invoice in the format required by the law to you for the supply. The tax invoice must set out the amount of the GST payable by you. The tax invoice must be issued at the same time as the consideration for the supply is due from RHD; and
(d) Each party must do everything reasonable to assist each other party to comply with its GST obligations in relation to these terms and any proposal.
23.2 Unless expressly stated to the contrary, all fees and sums payable are GST exclusive.
24. Counterparts and Electronic Execution
24.1 The Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute the Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of the Agreement.
24.2 An Agreement may be executed by the use of electronic signatures (in whole or in part). An electronic signature will be treated as an original signature for all purposes.
25. Definitions
25.1 Unless the context otherwise requires, the following terms have the following meanings:
(a)Agreement means each Order between you and us and which comprises these Terms.
(b) Australian Consumer Law means the Australian Consumer Law described in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(c) Expenses means any fees or charges payable by us to a third party on your behalf that arise in connection with the Services.
(d) Fees means the amount payable for the Services, as described in a Quote. It includes any fees charged under clause 4.3.
(e) Hourly Rates means the rates chargeable by us per hour for the Services, as specified in a Quote or in relation to Retainer Engagements, as in force and published from time to time by RHD on our website at redherring.net.au/hourly-rates.
(f) Intellectual Property Rights includes, but are not limited to copyrighted material, registered and unregistered trademarks, artistic works, photographs, images and other graphic designs, know-how, trade secrets, data, analysis, business information.
(g) Loss means any and all claims, damages, liabilities, losses, costs, or expenses (including reasonable legal costs and expenses).
(h) Minimum Term means the period of 3 months from the date you sign or accept this agreement or a Minimum Term otherwise agreed or specified in a Quote.
(i) Ongoing Services means the provision of Services on an ongoing basis and charged on a monthly basis, as described in a Quote.
(j) Order means any request for the provision of Services by you that has been accepted by us, or the acceptance by you of a Quote.
(k) Payment Terms means the payment terms specified in the Order or if no payment terms are specified, 14 days from the date of issue of an invoice.
(l) Personnel means a party’s employees, secondees, directors, officers, contractors, professional advisors and agents.
(m) Quote means a written quote or proposal or any other document provided to you by us which specifies the Services that we will provide and the Fees you will pay for the provision of those Services.
(n) Retainer Engagement means the provision of Services by RHD which are identified as a “Retainer Engagement” or “Ad Hoc” in a Quote and are invoiced pursuant to Hourly Rates on a monthly basis or as otherwise reasonably determined by RHD.
(o) Services means the items, deliverables and/or services provided, or to be provided, by us to you as identified in a Quote.
(p) Terms means these terms of business.
(q) Third Party Charges means any payment to be made directly by you to a third party in connection with the Services, e.g. advertising charges.
25.2 A reference in this Agreement to “you” or “your” means the client specified in the Quote or the Order.
25.3 All other defined terms are as defined in the body of this Agreement.
25.4 Words importing the singular include the plural and vice versa, the words “include”, “such as” or any similar expressions are to be construed without limitation, and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.