1. Structure of Agreement
This Agreement consists of the following parts:
(a) Order Forms; and
(b) these Terms and Conditions
The Order Form sets out the Services we will provide to you and the amount in fees you agree to pay us for those Services. The Order Form may provide for other matters, such as:
(a) our respective responsibilities (in addition to those set out in these Terms and Conditions);
(b) locations at which we will provide the Services;
(c) scheduled times for performance of Services; and
(d) any additional Agreement documents.
An Order Form does not come into force until we have both signed it and will commence from the Commencement Date as specified in the Order Form.
The term of each Order Form will be as specified in the Order Form.
Our relationship with you under this Agreement is as a contractor to you. We are not in any partnership or joint venture relationship.
1.2 Conflicting Terms
If there is any internal conflict in this Agreement, the clauses of these Terms and Conditions prevail.
1.3 Schedule for Completion
The scheduled times for our performance of the Services are estimates. We will endeavour to complete our Services within those times. We may extend those times to the extent we believe it reasonable to do so having regard to:
(a) the protection of personal safety or property;
(b) your breach of contract, or negligence or other default, including any failure to provide materials, information or resources required for us to provide the Services; or
(c) the occurrence of any circumstances beyond our reasonable control.
2. Mutual Responsibilities
2.1 Our Warranties
We warrant that:
(a) we will carry out all Services in a workmanlike manner and in accordance with the descriptions in the Order Form; and
(b) Subject to clause 3.2, the Services will not infringe the rights of any third party, including intellectual property rights.
2.2 Your Responsibilities
You agree that, unless the Order Form requires otherwise:
(a) you will obtain, procure and give any consents, permissions, access, facilities, information, cooperation, permits, authorities, notices and licences (whether or not required by law) which are reasonably needed to perform the Services and to carry out this Agreement;
(b) you will provide us with all information, materials and resources set out in the Order Form and as otherwise reasonably required to enable us to perform the Services;
(c) you warrant that any intellectual property provided by you to us shall not breach any third party’s intellectual property rights (including moral rights);
(d) you warrant that you are the owner or authorised licensee of any intellectual property provided by you to us and you are entitled to provide us with the licence specified in clause 6; and
(e) you warrant that any information or material provided to us to enable us to perform the Services will not breach of infringe any laws or persons’ rights.
2.3 Mutual Commitments
Each of us agrees:
(a) to endeavour to safeguard such of the other’s confidential information (of which it is in possession) no less carefully than it safeguards its own confidential information;
(b) that rights under this Agreement are not exclusive;
(c) that neither of us is liable for breach or other failure due to circumstances beyond its reasonable control or to the extent caused by or contributed to by the other party; and
(d) neither of us will institute any proceedings against the other more than one year after either the cause of action arose, or the performance of Services (whichever is the earlier).
3. Access to Premises
We may require access to your premises (including the location specified in the Order Form) to perform the Services. If we require access, you will not unreasonably withhold access from us and in accessing your premises we will use our best endeavours to:
(a) exercise reasonable skill and care on and around those premises;
(b) comply with all reasonable instructions by those in control or occupation of the premises;
(c) comply with all applicable security requirements or obligations of confidentiality notified to us in writing; and
(d) in all other respects act in a responsible and businesslike manner on and around those premises.
4. Payment and Taxes
4.1 Fees and Charges
You agree to pay us for the Services in the amount of fees specified in the Order Form. Other matters concerning your payment obligations may be set out in the Order Form, such as payment milestones and the method of payment.
You agree to pay us an additional amount in accordance with our rates for Services we perform outside the Order Form, and for services for which we have omitted to specify fees or charges in the Order Form.
If we properly extend the times for our performance under this Agreement, we will try to minimise the additional charges you may incur as a result, but subject to that, you agree to pay us the amounts we would have been paid had there been no extension (and had we fully performed this Agreement), plus our additional charges for resources made available by us during the period of the extension.
You acknowledge that we may increase our rates from time to time. We will give you advance written notice of such increases which will only apply to new services (not otherwise agreed in the Order Form.
Subject to any contrary intention in the Order Form, you agree to pay our invoices within 14 days after you receive them, and also interest in accordance with our standard overdue interest charges on late payments. You also agree to pay all costs and disbursements incurred by us with respect to recovery of any outstanding amounts including but not limited to legal costs.
You agree to pay any taxes and duties levied by any authority on, or in connection with, this Agreement (other than income taxes payable by us). This includes payment of the amount of GST according to the following principles: where we are liable (whether directly or via a GST group of which we are a member) to pay GST on any amount received from you relating to this Agreement, you shall, following receipt of a tax invoice from us, at the same time reimburse us the amount of GST. Terms used in the last sentence have the meanings defined in the GST Law as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 or any Act substituted for, validating or otherwise replacing that Act.
5. Intellectual Property
Where you supply us with any intellectual property (including logos, business names, company names and trade marks, and works protected by copyright), you grant to us a non-exclusive licence to make such use of that intellectual property as we need to perform the Services under this Agreement. If new copyright works are created solely for you pursuant to any of our Services provided to you, as between us, you will own that intellectual property.
In respect of any intellectual property created pursuant to our Services to you:
(a) your ownership does not include any of our background or pre-existing intellectual property (including our tools, methodologies, software, algorithms, templates or designs) or rights arising from the general know-how, skill and experience we have obtained as a result of our relationship with you; and
(b) we have a non-exclusive, worldwide, paid up licence to exercise such rights in the intellectual property that will allow us to perform the Services under this Agreement.
6. Limitations of Terms and Liability
6.1 Exclusion of Terms
This Agreement is the entire statement of the terms of our relationship concerning the Services. Subject to clauses 2.1 and 6.3, all terms (whether conditions or warranties, and whether oral or implied) not expressed in this Agreement are excluded.
6.2 Limitation on Liability
Subject to the following clause 6.3, you agree that our liability to you, and the liability of our subcontractors, whether for breach of this Agreement, in negligence or otherwise, is limited to your actual direct loss, not exceeding (for all claims in aggregate) the sum of the amount you have paid us under the Order Form pursuant to which the liability arose. Further, you agree that neither we, nor our subcontractors, have any liability to you, at all, for any loss of profits, loss of savings, loss of funds, loss of revenue, loss of data, or consequential, indirect or special loss (regardless of the cause of action, and regardless of whether we have been informed of their possibility).
6.3 Statutory Liability
Nothing in this Agreement purports to exclude, restrict or modify any condition, warranty, right or remedy which we must, by any applicable law, observe in your favour, and which we cannot, by contract, exclude, restrict or modify. To the extent such applicable law permits us to limit our liability in respect of such condition, warranty, right or remedy, we do so, including, in the case of Services supplied pursuant to this Agreement, at our option: (1) the payment of the cost of having the Services performed again; or (2) the supply of the Services again.
You agree that you are solely liable for the use you make of the results of our Services. You agree to indemnify us from any loss, cost, expense, demand or liability we suffer because of any claim which would not have been made against us had we not entered into this Agreement (including breach of the warranties under clause 2.2) other than to the extent our negligence or breach of this Agreement caused or contributed to the claim.
7. Term and Termination
This Agreement commences on the Commencement Date of the first Order Form. Each Order Form will continue for the Term specified in an Order Form. This Agreement will continue for an initial period of 24 months (or the later date of expiry of any Term specified in a then current Order Form) and continues in effect unless terminated under the provisions set out below.
If neither party gives written notice to the other of its intention to terminate this Agreement 60 days prior to the expiration of the initial period (or any extended term, as applicable), this Agreement is automatically extended for further periods of 12 months.
Either of us may terminate an Order Form or this Agreement if:
(a) the other breaches a material term, and fails to remedy that breach within 30 days of receipt of a written notice which specifies the breach and requests that it be remedied, failing which termination will occur; or
(b) the other enters into any form of insolvency administration, other than for the purpose of a corporate restructuring not involving any insolvency.
For the avoidance of doubt, clauses 3, 5, 7 and 13 shall survive the termination or expiration of this agreement.
You may not deal with the benefit of this Agreement in any way (whether by assignment, sub-licensing or otherwise) without our prior written consent. We may assign or otherwise transfer all or any part of this Agreement by any means, provided we give you 30 days’ notice prior to making an assignment or transfer.
We may vary the terms of these Terms and Conditions at any time by written notice to you. Such variation will only affect agreements entered into by you and us after the date of our notice.
10. Governing law
This Agreement is governed by the law in force in the State or Territory specified in the Order Form, and we each submit to the jurisdiction of courts of that State or Territory.
Each Order Form may identify the persons who are to represent each of us for the purpose of our relationship under that Order Form. Each of us may notify the other of a replacement representative from time to time. All notices under this Agreement will be addressed to the other’s notified representative, and to its Company Secretary (if applicable).
Before resorting to litigation to resolve any dispute between us, we both agree to allow a period of 30 days to elapse and, within that 30 day period, to hold good faith negotiations with a view to endeavouring to resolve that dispute.
Definitions and Interpretation
Unless the context otherwise requires:
Agreement means, these Vine Digital Services Terms and Conditions, each Order Form which incorporates these Terms and Conditions, and any additional agreement documents specified in an Order Form;
Services means the digital marketing, strategy and professional services we make available to you as specified in an Order Form;
We, us and our means Vine Digital Pty Ltd ACN 606 417 065 of Level 8/11 York St, Sydney NSW 2000 (Vine Digital); and you and your means the customer specified in an Order Form.
Words importing the singular include the plural. The words “includes” and “including” in any form are not words of limitation. References to persons include references to bodies corporate and unincorporated bodies. References to $ shall mean Australian dollars.