TERMS & CONDITIONS
YOUR ENGAGMENT WITH CODI™
You engage CODI™ Agency to provide the Services to You. CODI™ Agency must provide the Services to You and You must accept provision of the Services on the terms of this Agreement.
- This Agreement commences on the Commencement Date and (unless terminated earlier in accordance with its terms) will continue for the Term.
- Once the Term concludes, the Agreement will continue for the Renewal Term. Once the Renewal Term concludes, unless either party terminates the agreement, a new Renewal Term will begin.
- You must pay CODI™ Agency the Remuneration in consideration for the Services performed by CODI™ Agency in accordance with this Agreement.
- Unless otherwise Agreement in writing, the Remuneration excludes any consumption, goods and services, value added or other broad-based indirect tax on the Remuneration or the supply of the Services. You must pay any such taxes in addition to Our Remuneration.
- In the event You change your mind about the Services, you will still be required to pay the full amount owed. CODI™ Agency has the discretion to reduce the amount owed and may choose to exercise that discretion, in which case the amount owing will be an amount as agreed by them.
- In addition to the Remuneration, You must reimburse Us for any reasonable business-related expenses we incur during Our provision of the Services. We will advise You and seek Your approval in advance of the incurrence of any such expenses wherever We are reasonably able to do so. In the instance of sourcing additional styling pieces for creative services (including, but not limited to photography and videography services), it is agreed that CODI™ Agency can purchase up to $60 of additional supplementary items without prior approval to be reimbursed. Anything exceeding $60 will require client approval.
- Unless otherwise agreed in writing, We will invoice You for the Services We provide to You:
- in accordance with the rate of Remuneration; and
- on a monthly basis for retainer work, based on the date of engagement (Invoice Date) which must be paid prior to the start of every month period; or
- on a deposit basis for project work, on terms agreed with You.
- You must pay any invoice We provide to You under this Agreement within seven (7) days of the Invoice Date, or as otherwise stated on the invoice. Failure to do so will attract interest of 10% per annum (pro rata-ed) ongoing until outstanding amount is paid.
- In the event an invoice is not paid and/or an invoice is 30 days overdue, CODI™ Agency will maintain ownership of all assets created for You including Your website and any social media accounts We have been engaged to manage until all outstanding amounts are paid.
- For the purposes of this Agreement:
- Adjustment Event, Adjustment Note and Tax Invoice have the same meaning as in the GST Law;
- GST means a goods and services tax or similar tax imposed under GST Law; and
- GST Law means the A New Tax System (Goods and Services Tax) Act 1999.
- If GST has any application to any supply made under or in connection with this Agreement, the Party making the supply (for the purposes of this clause 5 only, “Supplier”) may in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from the recipient of the supply (for the purposes of this clause 5 only, “Recipient”) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
- Any additional amount on account of GST recoverable from the Recipient under this clause 5 shall be calculated without any deduction or set-off of any amount, and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under this Agreement.
- The Supplier must issue to the Recipient a Tax Invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.
- CODI™ Agency must:
- provide the Services to You in good faith, to the best of its skill and ability;devote its best efforts and attention to the performance of the Services; and
- carry out the Services in a timely and professional manner.
- CODI™ Agency must:
- We undertake to You that We:
- are skilled and competent to provide the Services;
- are in possession of all technical information, know how, equipment and materials necessary to provide the Services;
- will perform the Services in accordance with any reasonable direction We receive from You or Your designate; and
- will perform the Services in accordance with the Law.
- We undertake to You that We:
- CODI™ Agency may subcontract any of the Services to any third party contractors it deems fit, provided that it remains responsible and liable for the provision of the Services to You on the terms of this Agreement.
- To the extent permitted by law, You must indemnify and hold Us and our Associates harmless against all Loss arising directly or indirectly in connection with any breach by You of this Agreement, or Our performance of the Services for You in accordance with the terms of this Agreement.
- Your liability to indemnify Us and Our Associates will be reduced proportionally to the extent that any negligent or unlawful act or omission by Us or Our Associates contributes to any Loss that We suffer.
- You must not make any claims relating to the Services unless We receive sufficient written notification of the facts relating to such claims as soon as You become aware of those facts. Such written notification must be adequately documented to Our reasonable satisfaction. Any action by You for breach of this Agreement must be commenced within one (1) year of the last date of Our provision of the Services to You under this Agreement.
- CODI™ Agency does not provide any warranty to You about the standard or performance of the Services (other than as may be expressly provided in this Agreement) and excludes all liability for any Loss arising from or related in any way to this Agreement. Certain provisions of the Competition and Consumer Act 2010 (Cth) or any applicable State, Territory or Commonwealth legislation may imply warranties, confer statutory guarantees or impose other obligations on CODI™ Agency which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, CODI™ Agency’s liability under any such provisions shall be limited at CODI™ Agency’s option to:
- re-provide the Services to You;
- refund the Remuneration it has received from You for the affected Services; and/ or
- payment to You of an amount equal to the cost of replacing any affected Services.
The Parties must each take out and maintain appropriate insurance policies necessary to cover any liability under this Agreement for the performance of the Services. If requested by a Party, the other Party must provide details of the insurance (including, without being limited thereto, a copy of the insurance certificate) and evidence of currency.
- Termination for Default
- Either Party may terminate this Agreement immediately by written notice to the other Party if that other Party has breached this Agreement and has failed to remedy that breach within thirty (30) days after receiving written notice from the non-breaching Party requiring the breach to be remedied.
- Either Party may terminate this Agreement immediately at any time by giving the other Party written notice to that effect, if the other Party becomes insolvent or unable to pay its debts as they fall due, enters into a composition or arrangement with its creditors, commences winding-up (whether compulsorily or voluntarily), goes into administration or liquidation or becomes bankrupt, or is placed in the control of a receiver or trustee (whether compulsorily or voluntarily), or any similar such event.
- Suspension or Termination by CODI™ Agency
- We may suspend or terminate the performance of its obligations under this Agreement immediately upon written notice to You if:
- Any of Our invoice(s) to You remain outstanding seven (7) days after their due date; or
- We have previously provided You with at least thirty (30) days’ written notice that We wish to terminate this Agreement.
- Early exit
- If you would like to terminate the contract prior to the conclusion of the Term, you can do so by paying a 1k ex GST early exit fee. Fees will be pro-rated to the early exit date as determined by Us. These will need to be paid in addition to the early exit fee. Notice period for termination is 30 days.
- Termination Notice Period
- Once the Initial Term is completed, if no renewal period has been agreed to, the contract will continue on a month to month basis. To terminate the contract, either party must give 30 days notice.
- The Intellectual Property You have engaged Us to create (e.g. imagery, videography and written works) will be owned by You and CODI™ Agency.
- You acknowledge that any Intellectual Property created or developed while undertaking the Services for you (e.g. processes that have been developed to execute content for you), vests in and is owned entirely by CODI™ Agency on a worldwide basis. Unless otherwise expressly agreed in writing, this Agreement does not assign, transfer, novate, set over or create those Intellectual Property Rights to You.
- You must do all reasonable acts and things to protect CODI™ Agency’s Intellectual Property Rights, including acknowledging or assigning any such rights to CODI™ Agency or as directed by CODI™ Agency, and You must not challenge CODI™ Agency’s ownership of any such Intellectual Property in any way.
- Each Party acknowledges that all Confidential Information belonging to the other Party, whether in existence as at the date of this Agreement or at any later time, is and will remain the exclusive property of the other Party.
- Use of Confidential Information
- Each Party must only use Confidential Information belonging to the other Party for the purposes of this Agreement.
- Maintaining Confidential Information
- Each Party must (and must procure its employees and Associates to) carefully guard and keep confidential all the Confidential Information belonging to the other Party in its (or their) possession at all times during the Term and after the expiration or other termination of this Agreement and under no circumstances will a Party or its employees:
- Disclose at any time whether during the Term or at any time after the expiration or other termination of this Agreement any of the Confidential Information belonging to the other Party to any other person (except as authorised by the other Party in writing);
- leave any Confidential Information belonging to the other Party in any other person’s hands for any period of time;
- otherwise disclose any Confidential Information belonging to the other Party to any person except pursuant to written instructions from the other Party; or
- make or allow the making of any copy in any material form that contains any Confidential Information belonging to the other Party.
- General exceptions
- Nothing in this clause 11 requires either Party to observe and submit to the provisions of this clause 11 in relation to any information which:
- the Party can provide has been part of the common knowledge and within the public domain prior to the disclosure to the Party by the other Party;
- the Party can provide has become part of the public domain by publication or by any other means except any unauthorised act or omission on the part of the Party; or
- has been supplied to the Party without restriction by a third party who is under no obligation express, implied or inferred to maintain such information in confidence.
- Disclosure required by law
- Nothing in this clause 11 prevents either Party from disclosing Confidential Information belonging to the other Party as required by law, subject to the disclosing Party notifying the other Party immediately if it becomes aware that such a disclosure may be required.
- The terms of this Agreement are confidential
- Each Party must not, and must procure that none of its Representatives, disclosure the terms and conditions of this Agreement to any person (except to legal, financial or business advisers for the purpose of seeking advice relating to this Agreement) without the other Party’s prior written consent.
- Notice of breach
- Each Party must immediately notify the other Party of any unauthorised use or disclosure of Confidential Information belonging to the other Party.
- Each Party acknowledges that damages may not be an adequate remedy for breach of this clause 11 and that either Party is entitled to be granted specific performance, injunctive relief in addition to any other legal or equitable remedy for breach or threatened breach in addition to any other available remedies.
If there is any inconsistency between the terms of the body of this Agreement and the Special Conditions, the Special Conditions will prevail to the extent of that inconsistency only.
- Neither Party shall be responsible for any failure to perform any obligation under this Agreement if performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the Parties (each a Force Majeure Event). The Party affected shall promptly give notice to the other Party setting out full particulars of the Force Majeure Event and make all reasonable endeavours to mitigate the effects of this event on that Party’s performance of its obligations under this Agreement. If by reason of a Force Majeure Event, the delay or non-performance of a Party’s obligations continues for more than ninety (90) consecutive days, the other Party may terminate this Agreement by written notice. Neither Party shall be responsible for any failure to perform any obligation under this Agreement if performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the Parties (each a Force Majeure Event). The Party affected shall promptly give notice to the other Party setting out full particulars of the Force Majeure Event and make all reasonable endeavours to mitigate the effects of this event on that Party’s performance of its obligations under this Agreement.
- If by reason of a Force Majeure Event, the delay or non-performance of a Party’s obligations continues for more than ninety (90) consecutive days, the other Party may terminate this Agreement by written notice.
- to or by a Party under this Agreement must be in writing and signed by the sender or, if a corporate Party, an authorised officer of the sender;
- may be served by delivery in person or by post or transmission by facsimile or email to the address or number of the recipient specified in this provision or most recently notified by the recipient to the sender; and
- is effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a facsimile or email transmittal confirmation report before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next day following delivery or receipt.
- All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia.
- Each Party irrevocably submits to the exclusive jurisdiction of the Courts of the State of Victoria, Australia and the Courts of appeal from them. Each Party waives any right it has to object to an action being brought in those courts, including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those Courts do not have jurisdiction.
In this Agreement, unless the context otherwise requires:
Agreement means this Services Agreement including any Special Conditions, along with any schedule, annexure, attachment or exhibit attached to it;
Associate has the meaning given to it by Sections 10-17 of the Corporations Act 2001 (Cth);
Business Day means any day that is not a Saturday, Sunday or public holiday in the State of Victoria, Australia;
Commencement Date means the date set out in Item 1 of the Schedule;
Confidential Information of a Party (the Owner) means all information of or relation to the Owner (or any Related Body Corporate of the Owner) that is disclosed by the Owner (or its Personnel or representatives) to the other Party (the Recipient), or is otherwise learned by the Recipient, whether on, before or after the date of this Agreement, relating to:
- the business, property or operations of the Owner or any Related Body Corporate of the Owner;
- any of the Owner’s (or its Related Corporations’) plans or strategies;
- Intellectual Property (and including Intellectual Property); or
- the development, marketing or promotion of any of the Owner’s (or any of its Related Corporations’) products or services, whether disclosed verbally, in writing, in electronic form or by any other means and includes information disclosed by or concerning a Related Body Corporate of the Owner but excludes information that:
- is or becomes freely available to the public unless as a result of a breach of this Agreement;
- is disclosed without restriction to the Recipient by a third person, whom the Recipient knows has a legal entitlement to possess and disclose the information without obligation of confidentiality; or
- the Recipient proves it knew before the Owner (or its Personnel) disclosed information to the Recipient;
Force Majeure Event has the meaning given to it by clause 12(a);
Initial Term means the period of time described in the Schedule;
Intellectual Property includes but is not limited to, legally protectable product or process of the human intellect, patents, trade marks, copyrights, moral rights, designs, ideas, know-how or otherwise such as an invention, expression or literary creation, photograph, unique name, trade secret, business method, database, industrial process, presentation including any improvements and other Confidential Information, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registrations;
Intellectual Property Rights means rights, benefits, title or interest in or to any Intellectual Property anywhere in the world (whether registered or unregistered and including all applications for the same);
Law includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law of the State or otherwise in the places where the Services are being provided;
Loss means all claims, losses, damages, costs and expenses sustained or incurred (including legal costs and disbursement on a full indemnity basis), whether directly or indirectly or consequentially or in any other way;
Party means a party to this Agreement;
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth);
Remuneration means the remuneration described in Item 6 of the Schedule;
Renewal Term means of the period of time described in Item 5 of the Schedule;
Services means the services described in Item 3 of the Schedule;
Special Conditions means the special conditions set out in Item 7 of the Schedule;
Term means the Initial Term together with all of the Renewal Terms (if any); and
You means the party whose details are set out in Item 2 of the Schedule; Your and Client have corresponding meanings.
In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
- words that are words importing the singular include the plural and vice versa;
- words importing a geItender include any gender;
- where a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
- an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
- a reference to any thing (including, but not limited to, any right) includes a part of that thing;
- a reference to a clause or Party is a reference to a clause of, and a Party to, this Agreement;
- a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
- a reference to a document includes an amendment or supplement to, or replacement or novation of that document;
- a reference to a Party to a document includes that Party’s successors and permitted assigns;
- a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind; and
- a reference to a month is a reference to a calendar month.
3. Rule of contra proferentem
This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself
- Nothing in this Agreement is intended or will be construed as constituting a partnership, agency or joint venture relationship between the Parties. The Parties will perform all activities as independent contractors.
- This Agreement contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements and understandings, whether written or oral, with respect to the same subject matter still in force between the Parties.
- Any amendment to this Agreement has no force or effect, unless effected by agreement executed by the Parties.
- If any provision of this Agreement is to any extent held to be invalid, illegal or unenforceable, then that provision will be severed from this Agreement to the extent of its invalidity, illegality or unenforceability only, and the rest of this Agreement will remain in full force and effect.
- Waiver by either Party of a breach of, or failure to comply with, this Agreement by the other Party is of no effect unless it is in writing and signed by or on behalf of the first mentioned Party.
- Each Party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
- This Agreement may be executed in any number of counterparts, including scanned and/or emailed counterparts, all of which taken together are deemed to constitute one and the same document.