Terms of Business
1. Application
1.1.
The following terms apply to all Orders of Services by you from Philbo Pty Ltd as trustee for A Green You Can Trust & The Kutsch Group Pty Ltd as trustee for The Kutsch Group Trust – ABN 45 617 061 537 trading as Red Herring Digital (us, we, our, RHD). Each Order is a separate agreement between you and us.
1.2.
RHD may revise and update these terms from time to time in our sole discretion. Accordingly, you are responsible for reviewing these terms from time to time so you are aware of any changes, as they are binding on you. If you continue instructing us to provide you with the Services after being provided with updated terms by us, you will be taken to have agreed to those new terms and they will be binding on you..
1.3.
If you are not a natural person:
(a)
If it is a company, you warrant that the company is duly incorporated in Australia and has the power and authority to enter into this 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 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 these terms and you take responsibility for the acts and/or omissions of your Personnel.
1.4.
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 this agreement and have not relied on any warranty and/or representation made by RHD or its Personnel, save as specifically set out in this 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 Commission we will be paid.
2.2.
The terms of the Quote shall take precedence of these terms and conditions and therefore in the event of any inconsistency, the terms of the Quote shall apply to the extent of any inconsistency.
2.3.
Once accepted by you s, a Quote becomes an Order under these terms. 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 these terms.
3.2.
You agree that the Services may be supplied by our Personnel, related parties, subsidiaries and other associates of RHD.
3.3.
RHD is permitted to suspend the Services where any account remains outstanding pursuant to its payment terms or any upfront payment has been fully expensed against the Services provided to date.
4. Comission and Payment Terms
4.1.
You acknowledge that this a commission agreement and that you agree to pay RHD commission on your monthly sales at the rate set out in the Quote. Accordingly, you agree to provide to RHD full visibility in relation to your monthly sales and such sales information is to be provided within seven (7) days of the end of each calendar month, and the Commission shall be based upon the said monthly sales figures and the Quote.
4.2.
You agree to pay the Commission to RHD on the Payment Terms.
4.3.
RHD will arrange to place agreed advertising pursuant to the terms of the Quote and such advertising shall be paid pursuant to the credit card facility which will be bear an additional fee of 3%.
4.4.
In addition, any Expenses incurred by RHD shall be paid by you together with an agreed amount of 15% of the said Expenses to cover RHD’s administration costs.
4.5.
The Commission, Expenses and Third Party Charges are exclusive of GST and other taxes, duties, levies, except as otherwise provided.
4.6.
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 paid or to terminate the Order on 7 days’ notice to you.
4.7.
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 is becomes overdue pursuant to the applicable payment terms.
5. Expenses, Third Party Charges and Security Deposit
5.1.
We will notify you of any reasonably known anticipated Expenses and Third Party Charges in the Quote.
5.2.
You must pay any and all Expenses invoiced to you by us.
5.3.
You must reimburse us for any Expenses we pay on your behalf, unless otherwise notified by us.
5.4.
We do not collect or pay for Third Party Charges on your behalf but instead, unless otherwise agreed, link the credit card nominated by you to our account with the relevant third party. We create an account specifically for you designated under our business account with the relevant third party. We will not provide access to any other person or entity to this account. In no circumstances will we work from any account you directly hold with the third party.
5.5.
Unless specifically described in the quote, the Commission exclude all non-standard or premium third-party content, which will be chargeable to you as an Expense or payable by you as a Third Party Charge.
5.6.
The terms and conditions are subject to and conditional upon you paying the Security Deposit set out in the Quote. RHD is not obligated to provide any services pursuant to the terms of this agreement until the Security Deposit is paid. RHD agrees to hold the Security Deposit on behalf of you and RHD, and both parties authorise RHD to use the Security Deposit as follows:-
(a)
To pay to RHD an amount for any unpaid advertising and/or Expenses that are required to be paid pursuant to the terms of this agreement; and
(b)
Upon termination of the agreement, the Security Deposit can be used to be paid for the previous month’s advertising and/or Expenses, and the balance (if any) is then to be refunded to you.
5.7.
We may demand you pay us any unpaid Commission and Expenses plus any amount reasonably incurred by us in relation to the Services and their termination.
6. Cancellations and Terminations
6.1.
Either party may terminate an Order for any reason by the provision of 30 days’ notice.
6.2.
If you cancel an Order for any reason:
(a)
We may demand you pay us any unpaid Commission and Expenses plus any amount reasonably incurred by us in relation to the Services and their termination;
(b)
Services rendered, undertaken or completed by us and not yet invoiced to you will be provided to you and a final invoice will be issued to you to be paid in accordance with the Payment Terms;
(c)
We will stop supplying or undertaking the Services; and
(d)
You must pay and indemnify us in respect of any costs incurred by us in connection with or as a result of your cancellation (such as third party cancellation fees).
6.3.
In addition to clause 6.2, if you terminate an Order for Ongoing Services other than as a result of our material breach of this agreement, we may charge you the Termination Fee, which you acknowledge and agree represents our genuine estimate of the costs and loss of profits we are likely to suffer as a result of your termination of the Ongoing Services.
7. Your Obligations
7.1.
You must provide 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 or content requested by us in connection with our provision of the Services as soon as practicable, including but not limited to business and marketing information, account information, 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. Further, in particular, you agree to provide all information relating to your monthly sales as contemplated by clause 4.1 hereof. It is acknowledged that the provision of the said monthly sales figures is a fundamental term of this agreement and if, in the reasonable opinion of RHD, this information is not supplied in an accurate and transparent manner, RHD may immediately terminate this agreement.
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, otherwise changed or no longer in its original form.
7.4.
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.
7.5.
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.
8. Indemnity
8.1.
You agree to indemnify and hold us harmless from and in respect of any Damages and all Losses and the like where such Damage and/or 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 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 an Order); or
(d)
Your use of the Services.
8.2.
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. 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 a Quote.
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 and you are entitled to your choice of a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage; or our choice of having the Services refixed, repaired, replaced or refunded if failure does not amount to a major failure. We will do this 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 or any warranty document given at the time of supply.
9.4.
Notwithstanding the above, we exclude liability for any Loss:
(a)
Caused 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)
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;
(d)
In connection with your failure to comply with laws relating to misleading deceptive conduct/false advertising under the Australian Consumer Law (unless advising on compliance with those laws forms part of the Order); or
(e)
Caused by a breach or fundamental 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 a purpose that has been agreed by RHD and you.
9.6.
In all cases where liability cannot be excluded under 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)
Providing supply of the Services again; or
(c)
Payment of the cost of having the Services supplied again.
10. Law and Jurisdiction
10.1.
Subject to clause 11, any dispute arising under this agreement shall be governed by the laws of Victoria and Australian law and shall be determined exclusively by the courts of Victoria, Australia.
10.2.
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 Australian Commercial Disputes Centre. 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. Representations
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.
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 these terms (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 commit to comply with 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, 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.
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 of 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 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.
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 the 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.
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. GST
The parties agree:
21.1.
Terms used under these terms and any proposal have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999;
21.2.
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;
21.3.
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
21.4.
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.
21.5.
Unless expressly stated to the contrary, all fees and sums payable are GST exclusive.
22. Definitions
22.1.
The following terms have the following meanings:
(a)
Agreement or terms means these terms of business, unless the context otherwise requires.
(b)
Australian Consumer Law means the Australian Consumer Law described in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(c) Commission means the amount payable for the Services, as described in a Quote.
(d)Expenses means any fees or charges payable by us to a third party on your behalf that arise in connection with the Services.
(e)
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.
(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, liabilities, losses, costs, or expenses (including 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)
Payment Terms means 14 days from the date of issue of an invoice, unless otherwise specified in a Quote or agreed by the parties.
(k)
Personnel means a party’s employees, secondees, directors, officers, contractors, professional advisors and agents.
(l)
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.
(m)
Services means the items, deliverables and/or services provided, or to be provided, by us to you as identified in a Quote.
(o)
Termination Fee means 50% of the Fees that would otherwise be payable during the remainder of a Minimum Term.
(p)
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.
22.2.
All other defined terms are as defined in the body of this agreement.
22.3.
Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.
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