TERMS & CONDITIONS

 

These terms and conditions together with our Project Proposal make up a legally binding agreement (the Agreement) between Rise Marketing & Creative ABN 68 641 213 669 (referred to in these terms as “Us” “We” and “Our”) AND the person(s) or company named in our Project Proposal (referred to in these terms as “the Client” and “you”).

 

This Agreement may be accepted by doing either one or more of the following:

  • Signing the Project Proposal;
  • Signing these terms and conditions;
  • Providing instructions to us either in email after receiving the Project Proposal and these terms and conditions; or
  • By making payment of a depositor payment of your first month of Services

 

THE PARTIES AGREE as follows:

  1. Appointment
    • We are appointed by you from the Start Date to perform the Services.
  2. Project Proposal
    • Our Project Proposal details the Services, the Fees and any other terms that apply to us providing the Services.
    • We will not be bound by any terms or conditions generated by you except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by Us.
    • If you request or We consider there is a variation of the Services, then We may (but are not obliged to) notify you in writing of the variation, the price variation, associated delays and any other information We think is relevant to the variation.
    • We are not required to commence any work associated with any variation identified in clause 2.3 unless and until you acknowledge and accept in writing the variations contained in that notice. The notice may be given by email.
    • If your Project Proposal includes prepaid hours of work, these hours must be used within the Services set out in the Project Proposal and cannot be transferred to variations of the services or new projects.

 

  1. Provision of Information and Assistance
    • You agree to provide Us with all necessary cooperation to allow Us to provide the Services.
    • You acknowledge that our ability to provide the Services is dependent on Us having access to (and continuing to receive) complete, accurate, up to date and timely documentation and information.
    • You agree that if any documentation or information supplied to Us is incomplete, inaccurate or its provision is unreasonably delayed, We will not be responsible for any delays or liability arising as a result and will be entitled to charge you in respect of any resulting additional work at an hourly rate of $120 plus GST per hour.

 

  1. Payment and Price
    • If the Project Proposal is for project work, we will issue an invoice for the Fee and payment of 50% of the Fees is required before We will start on your project. If your Services are on a retainer basis, we will invoice you based on the frequency set out in our Project Proposal. Full payment is required before the work completed as part of our Services will be released.
    • Any credit card processing fees are payable in addition to our Fee.
    • If any invoice is not paid by the required date, We may charge interest at the then applicable rate pursuant to rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW). If any invoice remains unpaid for longer than 7 days from the date of the invoice, We may either suspend the provision of Services until payment is received or terminate this Agreement until payment is received. A failure by Us to exercise any remedy referred to above does not prevent Us from doing so with respect to any future unpaid invoice.
    • Unless stated otherwise Our Fees exclude GST. You agree to pay any GST imposed on Us now or in the future in relation to this Agreement. Where GST is payable on any taxable supply made under this Agreement, You agree the Fees payable for the supply will be increased by any amount equivalent to the GST payable by Us in respect of that supply.

 

  1. Legal Disputes and Limitation of Liability
    • Our aggregate liability to you for any Loss arising out of or in connection with:
  • Any act, error, negligence, misrepresentation or omission concerning or arising out of all of the Services provided under this Agreement (including any pre contractual statement, representation or warranty as to the quality or fitness of the Services or as to our ability to perform the Services);
  • Any breach of the Agreement or breach of duty of any kind owed in connection with the provision of the Services;

will be limited to and will not in any circumstances exceed the total Fees paid by you under this Agreement. This limitation applies to the aggregate Loss suffered or incurred by you in respect of all Services provided under all Project Proposals issued to you under this Agreement.

  • In no event will We be liable for any loss of profit, revenues, anticipated savings, business or investment opportunities, internal management costs or any other indirect or consequential loss. For the avoidance of doubt, multiple claims arising out of (or based on) the same act, error or omission, or series of continuous, or repeated acts, errors or omissions will be considered a single loss.
  • The limitation on liability in clause 5.1 does not apply to any liability which arises solely and directly from Our fraud or dishonesty.
  • Nothing in this Agreement is intended to exclude or restrict any liability that cannot be excluded or restricted by law.

 

  1. Confidentiality
    • A party receiving Confidential Information (“receiving party”) which is provided by or on behalf of the other party (“disclosing party”) must not deal with the disclosing party’s Confidential Information in any way that might prejudice its confidentiality.
    • The parties acknowledge that information resulting from Our activities pursuant to this Agreement will also be regarded as Confidential Information.
    • The receiving party’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by:
  • the Company, in the case of Confidential Information pertaining to the Company’s business; and
  • the Company’s client, in the case of Confidential Information pertaining to the business of any of the Company’s clients.
    • At the end of the Services, or when earlier directed by the disclosing party:
  • all Confidential Information must be returned to the disclosing party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the receiving party makes; and
  • the receiving party will must erase and destroy any copies of any software containing or comprising the Confidential Information in the receiving party’s possession or under the receiving party’s control or that may have been loaded onto a computer possessed or controlled by the receiving party.
  • The Confidential Information does not include information which:
    1. is generally available in the public domain otherwise than as a result of a breach of this clause by the receiving party; or
    2. was known by the receiving party prior to the disclosing party disclosing the information to the receiving party.
  • The receiving party agrees to indemnify the disclosing party fully against all liabilities, costs and expenses which the disclosing party may incur as a direct result of any breach of this clause by the receiving party.
  • The receiving party acknowledges that damages may be an inadequate remedy for breach of this clause and that the disclosing party may obtain injunctive relief against the receiving party for any breach of this clause.
  • The obligations accepted by the receiving party under this clause survive termination or expiry of this Agreement.

 

  1. Intellectual Property and Use of our IP
    • You acknowledge that We will own all Intellectual Property Rights created in our Services. To the extent that any Intellectual Property Rights vests in you, you assign all such Intellectual Property Rights to Us with such assignment effective immediately upon the relevant Intellectual Property Rights vesting in you.
    • Any pre-existing Intellectual Property Rights owned by Us before the commencement of this Agreement, will remain vested in Us.
    • Any pre-existing Intellectual Property Rights owned by you before the commencement of this Agreement, will remain vested in you.
    • We agree to grant you a non-exclusive, non-transferable, royalty free licence (“IP Licence”) to use and reproduce the Intellectual Property Rights for your business.
    • We acknowledge that you will retain ownership of Intellectual Property Rights in any Client Material. You grant Us a non-exclusive licence to use and reproduce the Client Material to the extent necessary for Us to provide the Services.

 

  1. Force Majeure (things that are outside of a parties’ control)
    • Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
    • The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
    • If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this agreement by written notice to the other Party.

 

  1. Termination
    • We may terminate this Agreement by notice in writing to you, if you:
  • fail to observe any term of this Agreement;
  • fail to rectify a breach, to Our satisfaction, following the expiration of 7 days’ notice of the breach being given in writing by Us to you;
  • enter into a deed of arrangement or an order is made for it to be wound up;
  • have an administrator, receiver or receiver/manager or a liquidator appointed to the Client pursuant to the Corporations Act 2001 (Cth);
  • would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth); or
  • have an administrator, receiver or executor is appointed to the Client pursuant to the Bankruptcy Act 1966 (Cth).
    • Notwithstanding any other provision of this Agreement, We may terminate this Agreement for any reason by providing you with 7 days’ notice.
    • For retainer Services, you may terminate this Agreement for any reason by providing 30 days’ written notice.
    • For Project work Services, you may terminate this Agreement for any reason by providing 45 days’ written notice. Please note that the initial 50% payment will not be refunded.
    • If this Agreement is terminated, We will be entitled to payment for all Services carried out up to the date of termination.

 

  • Applicable Law
    • The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State of New South Wales.

 

  • Relationship of the Parties
    • You agree and acknowledge that we are engaged as an independent contractor and this Agreement does not create an employer/employee relationship, joint venture or business partnership.
    • You agree and acknowledge that we are permitted to delegate all or part of the Services to our employees or contractors.

 

  • Client’s Warranties
    • The Client separately warrants that:
  • They are not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of Us whether in answer to an enquiry or otherwise.
  • Prior to the Start Date, they have made their own independent enquiries and satisfied themselves as to the fitness for purpose of the services and, to the extent permitted by law, We makes no warranty, promise or representation in relation to the services, either expressly or impliedly and any warranties, terms and conditions in relation to the fitness of the Services for any purpose, whether implied by use, statute or otherwise is, to the extent permitted by law, hereby excluded.

 

  1. We Rely on the Client’s Warranties
    • In entering into this Agreement, we rely upon the warranties provided above and upon any information supplied by the Client.

 

  • Definitions

In these terms and conditions, the following terms have the meanings indicated:

  • Agreement means the agreement made between you and Us as set out in these Terms and Conditions together with the Project Proposal.
  • Confidential Information includes any information marked as confidential and any information received or developed by a party, which is not publicly available and relates to processes, equipment and techniques used by the disclosing party in the course of the disclosing party’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and Project Proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
  • Client Material means any material regardless of form, provided or made available to Us by you in order for Us to provide the Services.
  • Fee means the fees for the Services set out in the Project Proposal.
  • Intellectual Property Rights means copyright, trademark, design, patent, and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by Us in respect to this Agreement.
  • Loss means any and all loss (including pure financial loss), injury, liability, damage, compensation, claim, demand, expense, interest or cost, including reasonable legal fees, whether arising in tor, contract or otherwise (including costs awarded or incurred) of any kind.
  • Project Proposal means any email, document or quote prepared by us which sets out our services and fees.
  • Services means the services to be provided by Us in accordance with a Project Proposal.
  • Start Date means the date specified in the Project Proposal and if no date is specified, the date on which we start the Services.