Terms & Conditions
Definitions and interpretation
In this agreement:
Advertising means all print, billboard, radio, television, cinema and electronic advertisements or commercials, all point-of-sale and direct mail materials, and any material for on-line use (including, but not only, websites and computer programs) produced or to be produced for the Client pursuant to this agreement.
Blirt means Vincent 3 Pty Ltd trading as Blirt Marketing ABN 54 428 579 821 of 153 Varsity Parade, Varsity Lakes, Queensland 4227.
Blirt IP means all Intellectual Property Rights arising from the provision of the Services by Blirt, or vested in any Advertising or material produced by Blirt in the course of providing the Services.
Blirt Material means any material provided by or to which access is given by Blirt to the Client for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
Client means the Client named in the Quote.
Client IP means the Intellectual Property Rights described as Copyright in graphics, branding and audio visual development (including digital copies) belonging to the Client.
Commencement Date means the commencement date specified in the Quote. Confidential Information of a party means any information:
- relating to the business and affairs of that party;
- relating to the clients, employees, sub-contractors or other persons doing business with that party;
- which is by its nature confidential;
- which is designated as confidential by that party; or
- which the other party knows or ought to know, is confidential, and includes all trade secrets, know-how, financial information and other commercially valuable information of that party, and in the case of Blirt, includes Blirt Material.
Client Material means any material provided by or to which access is given by the Client to Blirt for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
Fees mean the fees payable by the Client determined in the agreement at 3.1(g) and by the Quote.
FreeTV means Commercial Advice Pty Limited ACN 056 573 007 trading as FreeTV Commercials Advice.
Initial Period means the initial period specified in the Quote.
Insolvency Event in the context of a person means:
- a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
- the person or the person's property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);
- the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 or is presumed to be insolvent under the Corporations Act 2001;
- the person ceases to carry on business; or
- an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, Moral Right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder's right, trade secret, know-how, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Moral Rights means:
- the right of integrity of authorship;
- the right of attribution of authorship; and
- the right not to have authorship falsely attributed, including those rights as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of this agreement.
Quote means the quotation attached to this agreement which forms part of the agreement and its terms.
Services means the services specified in clause 2.Supply has the meaning given to that term in the GST Act.
Special Conditions means any special conditions agreed between the parties included in the Quote.
In this agreement:
- a singular word includes the plural and vice versa;
- a word which suggests one gender includes the other gender;
- a reference to a party to this agreement or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;
- a reference to a document or agreement (including a reference to this agreement) is to that document or agreement as amended, novated, supplemented, varied or replaced;
- a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
- a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
- no rule of construction applies in the interpretation of this agreement;
- a reference to '$' or 'dollar'ltation with the Client to establ is to Australian currency;
- the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as' or 'for example' (or similar phrases) do not limit what else might be included;
- clause headings are for convenient reference only;
- a reference to a party is a reference to Blirt or the Client, and a reference to the parties is a reference to both Blirt and the Client.
- If there is any inconsistency between the provisions of this agreement a descending order of precedence will be accorded to the agreement first and then the Quote so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.
Supply of Services
- Subject to the Client paying the Fees and any SpeciaL Conditions, Blirt will provide the Services requested by the Client.
The Services are:
- initial consultation with the Client to establish the Client's requirements for Advertising, research and promotion;
- undertaking market research;
- if required by the Client, development of business development strategies and investigation of positioning opportunities;
- planning and development of strategies and an Advertising campaign in consultation with the Client;
- creative development of advertising campaigns;
- provision of media and communications strategy and advice;
- producing, or arranging and supervising the production of marketing and advertising materials;
- if required, the submission of television commercials to FreeTV for classification, including completion of the required application on behalf of the Client;
- planning and preparing media schedules for Advertising and negotiating and settling terms of publication, broadcast and distribution with the relevant media outlets;
- media monitoring, including monitoring of the publication, broadcast and distribution of Advertising and, if required, taking any steps that may be reasonably available to rectify any errors (such as poor reproduction or scheduling errors);
- preparing accounts for the Client including verifying invoices received from media and other suppliers;
- preparing and controlling a budget for production and media costs; and
- arranging and attending meetings with the Client's representatives as may be required in the course of providing the Services.
- Establish digital media buying services through services such as Google, Adwords or Facebook - setup and access to the media buying an optimisation accounts will remain the property of Blirt. Marketing and access to the master accounts is not granted to the Client. This includes all ad copy and structures within the accounts.
- The design and development of digital marketing and technology systems which may include CRM platforms, marketing automation systems, websites, application development of specialised software development.
The Client may request Blirt to provide additional services in relation to new product development.The Services do not include:
- provision of any legal advice. In particular, the Client will be responsible for ensuring none of the Client Material, any trademarks used in the Advertising or any product names infringe any third party Intellectual Property Rights.
- Obtaining any third party licences or approvals required to use any copyright protected materials whatsoever and appropriate consents to the infringement of the Moral Rights of the creators of any material in which copyright subsists which is used in the Advertising;
obtaining any permits, approvals, certificates or licences required for the Advertising, including without limitation, any permits, approvals or licences required with respect to:
- any competition promoted by the Advertising;
- Advertising containing political content;
- promotions for the sale of land;
- offers of credit;
- promotion of alcoholic beverages; or
- promotion of therapeutic goods.
- any Client responsibility in the agreement and Special Conditions
The Client must:
- provide Blirt with such information and assistance necessary to enable Blirt to provide the Services;
- follow the directions of Blirt in connection with the provision of the Services;
- cooperate with Blirt and act reasonably in connection with this agreement and receipt of the Services;
- Submit to Blirt in a timely manner all material required to be incorporated in all Advertising at each stage of production;
- Notify Blirt, a reasonable time before each deadline for placement or communication of advertising, whether the Client approves or disapproves of any material submitted to the Client for approval by Blirt. If the Client fails to notify Blirt a reasonable time before each deadline, the Client will be deemed to have approved the material;
- Provide Blirt with written evidence in support of any claims or testimonials made in Advertising; and
- If the Advertising promotes a competition, a copy of the conditions of entry and any permit numbers.
Supply of Services
The Client must pay the Fees to Blirt.
- If there is a dispute about whether a Fee or other amount contemplated by this agreement is payable or available, the Client must not withhold the amount in dispute.
- The Fees may change during the Term.
- The Client acknowledges and agrees that Blirt is entitled to retain all commissions or rebates received by it with respect to media fees paid or allowed with respect to the Advertising or the Services.
- Where the Client requests any additional services, the Fees will be determined by agreement between the parties prior to the provision of those Services.
- The Client must reimburse all costs incurred by Blirt in the production of Advertising which has been approved by the Client.
- Any paid search media investment and management fees (20% of media investment) are due in full before campaign commencement. Paid media investment spend is held to cover spend invoices from the media channel selected. Any media investment not spent at any point in time is refundable.
The Fees charged to the Client are calculated as follows (excl GST):
Consulting and Creative Strategy, Campaign or Creative Direction $250 p.h Salesforce custom development $200 p.h Consulting, Communications, Digital & Design $150 p.h Media (per month)
SEM/Biddable Digital Media Management
$1-$1500 spend per month $400 $1,501 - $2,500 spend per month $700 $2,501 - $5,000 spend per month $1,000 $5,000 spend per month 20% External Media Planning, briefing and Management 5-6% Technology
Pardot Implementation as outlined at blirt.com.au/pardot
Omnibound-Campaign Manager (Pardot) $300 Omnibound Campaign Set Up (per camp) $500 Omnibound Call Tracking (200 mins per month add minutes charged at $1.50 per min) $200 Website Scoping $1,900 Social Media Review $300 SEM Review $900 SEO Review $900
The Client must reimburse Blirt for all expenses and disbursements reasonably incurred in relation to the provision of the Services, including:
- Travel and accommodation charges where the travel has been authorised by the Client;
- Packaging, shipping and delivery charges;
- ISDN transfers to Trade Houses and Quickcut transfers to newspapers;
- The cost of obtaining any legal advice requested by the Client;
- The cost of obtaining on behalf of the Client any third party licences or approvals required to use any copyright protected materials in any Advertising produced as part of the Services; and
- Any other disbursements and expenses reasonably incurred by Blirt in the provision of the Services.
- Fees may be reviewed by Blirt on an annual bases or otherwise as determined by Blirt
- (a) Blirt will invoice the Client monthly for the Fees, or as otherwise agreed between Blirt and the Client.
- (b) The Client must pay an invoice issued within 14 days after the date of issue.
If the Client fails to pay the Fees in accordance with this agreement, without limiting any other remedies available to Blirt, Blirt may defer performance of all Services until the outstanding Fees are paid.
Term and termination
This agreement commences on the Commencement Date and continues for the Initial Period unless terminated in accordance with the agreement ("Term").
If the parties agree then the Term may be extended in writing in which case the terms and conditions of this agreement will extend be apply to the agreement as extended.
Termination by notice at end of Initial Period
After the expiry of the Initial Period, either party may terminate this agreement by giving at least three months' notice to the other party, in which case the termination is effective immediately upon the expiry of that period.
Termination for breach
- If the Client commits a breach of this agreement or an Insolvency Event occurs in relation to the Client then Blirt may terminate this agreement by notice to the Client in which case this agreement will terminate on the date specified in that notice or, if no date is specified, immediately.
- If Blirt:
- commits a material breach of a fundamental term of this agreement that has a material and adverse effect on the Client; and
- fails to remedy that breach within 60 days of receiving notice from the Client requiring that Blirt remedy that breach, then the Client may terminate this agreement by notice to Blirt in which case this agreement will terminate immediately.
On termination of this agreement:
- accrued rights or remedies of a party are not affected; and
- the Client must deliver to Blirt any of Blirt's Confidential Information or other property in its care, custody or control.
Termination of this agreement will not affect any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination including clauses 4.5, 7.3, 7.6, 8,9, 10, 11, 12 and 13.7.
Client authorisation of FreeTV applications
During the Term, the Client authorises Blirt to:
- complete and sign on its behalf any order forms and applications to FreeTV or other channel applications for classification of television commercials; and
- give the warranties, representations and indemnities required as part of any FreeTV (or other channel applications) application process, for and on behalf of the Client.
Blirt must obtain Client approval of the Advertising prior to commencement of production.
- Subject to clauses (b) and (c), the Client may at any time give Blirt notice that it requires Blirt to:
- cancel the production of any Advertising;
- change any Advertising in the course of production;
- cancel or alter any media booking for or schedule for the booking of the publication of any Advertising; or
- stop the publication of any Advertising, and Blirt must take all reasonable steps to comply with that notice unless to do so would breach any third party obligations incurred as a result of previous Client approval of Advertising.
- The Client must comply with media cancellation deadlines when cancelling any media booking.
- In the event that the Client provides notice to Blirt in accordance with this clause, Blirt will use reasonable endeavours to have any media booking fee waived, however the Client must pay or reimburse any booking fees that are not waived.
- Subject to clauses (b) and (c), the Client may at any time give Blirt notice that it requires Blirt to:
- The Client must only use Blirt Material in accordance with any directions given by Blirt and must keep safe and any Blirt Material provided to the Client.
- Blirt Material remains the property of Blirt and nothing in this agreement grants the Client any Intellectual Property Rights in Blirt Material or other Intellectual Property Rights of Blirt.
The parties agree that Blirt will own and retain all Blirt IP except for the Client IP. The Client IP will be owned by the Client. Blirt grants to the Client a licence to exercise the Intellectual Property Rights in the Blirt IP upon the terms set out in the Special Conditions.
- Blirt makes no warranties or representations with respect to the Client IP.
- Licence of Client Material The Client grants to Blirt a non-exclusive, irrevocable, worldwide licence to exercise the Intellectual Property Rights in any Client Material and the Client IP in connection with Blirt providing Services to the Client, including the right to sublicense.
- The Client (including its officers, employees, agents and subcontractors) must not, use the trademarks or logos of Blirt without Blirt's prior consent, except as expressly provided in this agreement.
- The Client grants Blirt a perpetual, irrevocable, worldwide, non-exclusive licence of its Intellectual Property Rights subsisting with respect to the Client IP and Advertising for the purpose of promoting Blirt's business or the services provided by Blirt, which may include to reproduce or communicate the Client IP and the Advertising (including without limitation by reproducing all or part of the Advertising in a show reel and on any Blirt website).
- Any code written by Blirt remains the property of Blirt.
- Any IP in design materials created for the Client are transferred to the Client upon full payment of invoice for the Fees.
- Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement or by express written consent of the other party, any Confidential Information of the other party provided to or obtained by that party (including indirectly or unintentionally) prior to or after entry into this agreement.
The obligations of confidence in clause 8.1 do not
apply to Confidential Information:
- that is required to be disclosed by law, a court or government agency, as long as the disclosing party before disclosing any information, gives reasonable notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence; or
- that is in the public domain other than as a result of the obligation of confidence.
- Each party may use and disclose Confidential Information of the other party only to that party's directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this agreement.
Limitation of liability
- Subject to clauses 9.3 and 9.5, any liability of Blirt for any loss or damage, however caused (including by the negligence of Blirt), suffered by the Client in connection with this agreement is limited to $100 regardless of the seriousness or nature of that breach.
- The limitation set out in this clause 9 is an aggregate limit for all claims, whenever made.
- Any claim by the Client against Blirt for loss or damage however caused (including by the negligence of Blirt), suffered by the Client in connection with this agreement must be made within one month of the Client becoming entitled to make the claim and any claim not made within one month is absolutely barred regardless of the seriousness or nature of the claim.
- Subject to clause 9.5, Blirt is not liable for any Consequential Loss whatsoever (including, but not limited to, any form of direct or indirect loss of revenue, profits, data, reputation, anticipated savings, opportunities or loss connected in any way to a third party), however caused (including by the negligence of Blirt), suffered or incurred by the Client in connection with this agreement.
Australian Consumer Law
If the Australian Consumer Law or any other legislation implies a condition or warranty into this agreement in respect of goods or services supplied, and Blirt's liability for breach of that condition or warranty may not be excluded but may be limited, clauses 9.1, 9.3 and 9.4 do not apply to that liability and instead Blirt's liability for such breach is limited to, in the case of a supply of goods, Blirt replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Blirt supplying the services again or paying the cost of having the services supplied again.
The Client is liable for, and indemnifies Blirt from
and against, all loss, costs or damage (including legal costs)
incurred or suffered by Blirt however caused in connection
- the Advertising;
- any breach of this agreement by the Client;
- any breach of any warranty or implied warranty given by the Client;
- any approval or consent given by the Client;
- any false, misleading or deceptive information provided by the Client to Blirt;
- any unlawful or negligent act or omission of the Client, its officers, employees or agents;
- any alleged or actual infringement of a third party's Intellectual Property Rights or other right in connection with the Advertising, the Client Material, the Client IP or the Services;
- any act or omission of the Client or any person acting or purporting to act on behalf of the Client;
- any production of Advertising prior to the cancellation of that production at the request of the Client;
- the Client IP or the use or exploitation of the Client IP; or
- any notice given by the Client under clause 6.2 of this agreement, or any action taken by the Client as a consequence of the Client giving such a notice.
- Each indemnity contained in this agreement is a continuing obligation notwithstanding any settlement of account or the occurrence of any other thing, and it is not necessary for Blirt to incur expense or make payment before enforcing or making a claim under an indemnity.
- The Client is liable for, and indemnifies Blirt from and against, all loss, costs or damage (including legal costs) incurred or suffered by Blirt however caused in connection with:
- If either the Client or Blirt considers that a dispute has arisen, it may issue a notice to the other party, setting out reasonable particulars of the matters in dispute ("Dispute Notice") neither party may commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a dispute without first issuing a Dispute Notice unless that party requires urgent interlocutory relief.
- The Client and Blirt must promptly hold discussions between representatives of each party after the issue of a Dispute Notice to attempt to resolve the Dispute ("First Level Discussions").
- If within five Business Days after First Level Discussions the dispute is not resolved, the parties must attempt to resolve the Dispute by holding discussions between a senior executive of the Client and a senior executive of Blirt ("Second Level Discussions") if within ten business days the dispute is not resolved after Second Level Discussions, either party may pursue their rights under this agreement.
- A notice, consent or communication including any request, demand, agreement, approval or confirmation under this agreement must be in legible writing, signed by the party, addressed to the appropriate person and delivered by hand to that person's address, sent by prepaid mail, email or sent by fax with a transmission report.
- A notice, consent or communication is given and received by 5:00pm on that day if on a business day if it is hand delivered or sent by fax or email, where sent by post within Australia, three business days after posting or seven business days after posting when sent from a place outside Australia.
- Unless expressly stated otherwise in this agreement, the rights and remedies under any indemnity or otherwise provided under this agreement are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.
- Except for payment, time is not of the essence in the performance of the agreement.
- This agreement may only be amended in writing where agreed between all parties.
- Blirt will not be in breach of this agreement as a result of or liable for, any failure or delay in the performance of its obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a an event that is beyond the control of Blirt (a force majeure event) which prevents or hinders the performance of the agreement or any act or omission of the Client.
- Blirt may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons, unless this agreement expressly requires otherwise.
Except under this clause, the consideration for a Supply made under or in connection with this agreement does not include GST.
- Relevant words in this clause have the meaning under A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act").
If a Supply made under or in connection with this agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
- the GST Act Recipient must pay Blirt an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this agreement for that Supply); and
- Blirt must give the GST Act Recipient a Tax Invoice for the Supply.
- If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
- Without Blirt's express prior consent, the Client must not, or attempt to entice away any employee (including senior employee) or contractor of Blirt; or engage or employ any person for a period of six months after the person ceases to be engaged or employed in any way by Blirt (including in a senior capacity).
- The Client must not assign, in whole or in part, or novate the Client's rights and obligations under this agreement without the prior consent of Blirt. Blirt may assign its interest under this agreement. If required by Blirt the Client must enter into a deed of novation with Blirt and a third party nominated by Blirt on terms specified by Blirt.
- The Client representative will represent the Client and the Blirt representative will represent Blirt for the day to day purposes of this agreement (representatives are named in the Quote).
- This agreement may be executed in any number of counterparts and all counterparts together make one instrument.
- This agreement and associated Quote represents the parties' entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
- Each party must do all things and execute all further documents necessary to give full effect to this agreement and refrain from doing anything that might hinder the performance of this agreement.
- The laws of Queensland govern this agreement.Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
- Without limiting any other remedies available to Blirt, if the Client fails to pay any amount payable under this agreement, the Client must pay interest on that amount, calculated at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law, calculated daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.
- If a party to this agreement consists of more than one person then an obligation of those persons under this agreement is joint and several.
- The failure of a party at any time to require full or partial performance of any provision of this agreement does not affect in any way the right of that party to require that performance subsequently.
- A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
- A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
- Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
- Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
- Blirt may subcontract the performance of all or any part of its obligations under this agreement.
- The Client must not subcontract the performance of all or any part of its obligations under this agreement without the prior consent of Blirt.