FEEL GOOD PROMOTIONS – BUSINESS TERMS AND CONDITIONS
This agreement sets out the terms under which Feel Good Promotions ABN 81 108 719 571 (Feel Good Promotions) provides services to you or the company which you represent (the Client).
You will be taken to have to have accepted these terms and conditions if you sign these terms and conditions or otherwise indicate your assent, or if you order, accept or pay for any services provided by the Feel Good Promotions after receiving or becoming aware of these terms.
These terms will apply to all the Client’s dealings with the Feel Good Promotions, including being incorporated in all agreements, quotations or orders under which the Feel Good Promotions is to provide services to the Client (each a Proposal) together with any additional terms included in such Proposal (provided such additional terms are recorded in writing).
In consideration for the payment of the Fees, the Feel Good Promotions will provide the Client with services set out in a Proposal (Services).
Unless otherwise agreed, the Feel Good Promotions may, in its discretion:
(a) not commence work on any Services until the Client has paid any deposit payable in respect of such Services; and
(b) withhold delivery of Services until the Client has paid the invoice in respect of such Services.
The Client must pay to the Feel Good Promotions fees in the amounts and at the times set out in the Proposal or as otherwise agreed.
Unless otherwise agreed:
(a) if the Feel Good Promotions issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
Unless otherwise agreed:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Feel Good Promotions in connection with a Proposal;
(b) any third party costs incurred by the Feel Good Promotions in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Proposal.
Unless otherwise indicated, amounts stated in a Proposal do not include GST. In relation to any GST payable for a taxable supply by the Feel Good Promotions, the Client must pay the GST subject to the Feel Good Promotions providing a tax invoice.
3.5 CARD SURCHARGES
The Service reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
The Client must pay additional charges for changes to Services requested by Client which are outside the scope set out in the relevant Proposal (Changes).
Unless otherwise agreed:
(a) Changes will be charged on a time and materials basis, at the Feel Good Promotions’ standard hourly rates; and
(b) Feel Good Promotions may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by the Feel Good Promotions, bear an accreditation and/or a copyright notice including the Feel Good Promotions’ name in the form, size and location as directed by the Feel Good Promotions; and
(b) the Feel Good Promotions retains the right to describe the Services and photograph, reproduce, publish and display the Deliverables in the Feel Good Promotions’ portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
6. CLIENT OBLIGATIONS
6.1 PROVIDE INFORMATION
The Client must provide Feel Good Promotions with all documentation, information and assistance reasonably required by Feel Good Promotions to perform the Services.
The Client agrees to provide Feel Good Promotions with access to the Client’s premises and Personnel, to the extent required to perform the Services.
7. FEEL GOOD PROMOTIONS OBLIGATIONS
Feel Good Promotions will supply all Services with due care and skill, so that they are fit for their intended purpose and in compliance with Australian Consumer Law.
8. THIRD PARTY GOODS AND SERVICES
(a) Any Service that requires the Feel Good Promotions to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) The Client agrees to any Third Party Terms applicable to any goods and services supplied by a third party that the Client or Feel Good Promotions acquires as part of the Services and the Feel Good Promotions will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
Except as contemplated by this agreement or a Proposal, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
(a) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(b) information required to be disclosed by any law; or
(c) information disclosed by the Feel Good Promotions to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this agreement.
10. INTELLECTUAL PROPERTY
10.1 CLIENT CONTENT
The Client grants to the Feel Good Promotions (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
(a) warrants that the Feel Good Promotions’ use of Client Content as contemplated by a Proposal will not infringe any third-party Intellectual Property Rights; and
(b) will indemnify the Feel Good Promotions from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
10.2 FEEL GOOD PROMOTIONS IP
Unless otherwise expressly agreed in writing by the Feel Good Promotions, the Client will not under these terms or any Service Agreement acquire Intellectual Property Rights in any Feel Good Promotions IP. Any Developed IP will be solely and exclusively owned by the Feel Good Promotions.
The Feel Good Promotions grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use the Feel Good Promotions IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables for the Permitted Use set out in the Proposal.
For the purposes of this clause 10:
(a) “Client Content” means any documents or materials supplied by the Client to the Feel Good Promotions under or in connection with this agreement or a Proposal, including any Intellectual Property Rights attaching to those materials.
(b) “Developed IP” means any materials produced by the Feel Good Promotions in the course of providing Services including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
(c) “Feel Good Promotions IP” all materials owned or licensed by the Feel Good Promotions that is not Developed IP and any Intellectual Property Rights attaching to those materials.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the Commencement Date, whether registered or unregistered.
To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Proposal are excluded.
Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, the Feel Good Promotions’ liability for breach of that non-excludable condition, warranty or guarantee will, at the Feel Good Promotions’ option, be limited to:
(a) in the case of goods, their replacement or the supply or equivalent goods or their repair; and
(b) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
12. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the Feel Good Promotions’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement or a Proposal:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(b) is limited, insofar as concerns other liability, to the total money paid to the Feel Good Promotions under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
The Client indemnifies the Feel Good Promotions from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) any breach of this agreement by the Client; or
(b) any negligent, fraudulent or criminal act or omission of the Client or its personnel.
14.1 TERMINATION BY SERVICE PROVIDER
The Feel Good Promotions may terminate these terms or any Proposal in whole or in part immediately by written notice to the Client if:
(a) the Client is in breach of any term of these terms or a Proposal; or
(b) the Client becomes subject to any form of insolvency or bankruptcy administration.
14.2 TERMINATION BY CLIENT
The Client may terminate this agreement:
(a) if the Feel Good Promotions has committed a material breach of this agreement or a Proposal and has failed to remedy the breach within 30 days written notice by the Client; or
(b) if the Feel Good Promotions consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees).
14.3 EFFECT OF TERMINATION
Upon termination of this agreement, the Client must promptly pay (at the Feel Good Promotions’ request):
(a) the Feel Good Promotions’ expenses to date;
(b) payments required by the Feel Good Promotions’ suppliers to discontinue their work;
(c) usual time charges for the work of the Feel Good Promotions’ staff to date;
(d) the Feel Good Promotions’ standard fees in relation to work already performed; and/or
(e) an equitable amount by way of profit margin on the preceding items.
Any provision of these terms (including in a Proposal) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
15. DISPUTE RESOLUTION
(a) The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
(b) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
(c) The terms of the Guidelines are hereby deemed incorporated into this agreement
16.1 FORM OF NOTICE
A notice or other communication to a party under this agreement must be:
(a) in writing and in English; and
(b) addressed to that party to:
(i) the postal address of that party; or
(ii) the email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).
16.2 HOW NOTICE MUST BE GIVEN
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
When Notice is regarded as given and received
By pre paid post in the same country
On the third Business Day after the date of posting
By pre paid post in another country
On the fifth Business Day after the date of posting by airmail
By email to the nominated email address
Unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address, 24 hours after the email was sent.
17.1 GOVERNING LAW
This agreement is governed by the law applying in Queensland, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
This agreement may only be amended by a document signed by each party.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
17.6 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
17.7 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.