General Conditions
1. Formation of Agreement
1.1 This Agreement may consist of:
(a) the Proposal;
(b) these general conditions;
(c) any attached end user license agreement for any third-party material; and
(d) any other Annexure.
1.2 This Agreement is the entire contract between GG and the Client and supersedes the terms on any Client’s purchase order which are inconsistent with these terms.
1.3 The Client may insert special conditions, but these will not be binding on GG unless accepted in writing by GG.
1.4 The Client and the Directors can accept the terms of this Agreement by placing an order for any Services, taking or accepting provision of any Services, whether or not the Client acknowledges or signs these Terms.
2. Duration
2.1 This Agreement shall commence on the Commencement Date and continue for the Term.
2.2 The Agreement shall continue for a further term of the same length as the Term, at the expiration of the Term and any Extended Term.
2.3 Either party may terminate this Agreement by giving not less than three (3) months prior to the expiry of the Term, or any Extended Term.
2.4 The Client may terminate the Agreement prior to the end of the Term or any Extended Term, upon providing notice in writing to GG, in which case, the Client must pay:
(a) for all Services provided by GG to the Client up until the date of the notice; and
(b) an amount equivalent to 50% of any amounts that would have been payable during the balance of the Term, or any Extended Term.
3. Supply of Services
3.1 GG agrees to supply the Services to the Client.
3.2 GG may supply additional Services as requested from time to time by the Client, for which fees will be payable at GG’s prevailing costs, rates, and charges applicable at the appropriate time.
4. Client’s Obligations
4.1 The Client shall:
(a) provide in a timely fashion all information, and make timely decisions, which may be reasonably requested of the Client by GG in order to provide the Services and the Client acknowledges that:
(i) any delay in providing such information or decisions grants a corresponding extension of time for GG to provide or complete the Services;
(ii) GG need not commence the Services until all necessary information and decisions have been provided to GG by the Client; and
(iii) if the Client fails to provide such information or decisions to GG for a period in excess of thirty (30) days such failure may be treated by GG as a breach and a repudiation of this Agreement;
(b) instruct third parties working for the Client to work collaboratively with GG in order to allow GG to succeed in its obligations;
(c) bring a pro-active, innovative, open, and constructive approach to the Services and to the relationship with GG under this Agreement;
(d) assess its risks and must take its own precautions to minimise its exposure to risk;
(e) keep its computer systems and any software used for the Services current with the latest security patches and updates and otherwise appropriately protected against cyber-attack; and
(f) indemnify GG against any loss or damage resulting from any incorrect information, any delay in providing such information, or any other breach of this clause 4.
4.2 The Client represents and warrants to GG that:
(a) any information it supplies to GG is true and correct;
(b) entering this Agreement will not cause the Client to be in breach of any other obligations; and
(c) the Client is not in default of any obligations to any third parties.
5. Fees
5.1 The Client agrees to pay the Fees for the supply of the Services, in accordance with the Proposal and/or any Annexure, or as otherwise agreed by GG and the Client.
5.2 If no Fees are specified in respect of the provision of the Services, the Client shall pay in accordance with GG’s prevailing costs, rates, and charges applicable at the date of this Agreement or the date of actual supply of the Services, at GG’s sole discretion.
5.3 At the commencement of any Extended Term, unless otherwise agreed between GG and the Client, the Client shall pay in accordance with GG’s prevailing costs, rates, and charges applicable at the date of the commencement of the Extended Term.
5.4 Additional Services performed includes time spent consulting with the Client, telephone calls, meeting and preparation time, time for travel, and any other time attributable to the provision of the Services.
6. Ownership of Intellectual Property Rights & Confidential Information
6.1 Subject to the provisions of this clause 6, the ownership of all Intellectual Property Rights associated with any Deliverable:
(a) immediately vests in GG upon creation; but
(b) is hereby automatically assigned to the Client if payment in full is received by GG.
6.2 By way of security against unpaid accounts, ownership of the Intellectual Property does not pass to the Client until paid for in full.
6.3 To the extent that any Deliverable consists of components which GG can re-use for other clients, copyright in those components is retained by GG, but GG grants to the Client a non-exclusive licence to make use of the components as part of the Deliverable.
6.4 Copyright in any Raw Artwork remains the property of GG. Where a Client requests original Raw Artwork files, GG may supply them and grant a licence to use them to the Client, at GG’s absolute discretion, for a cost of not less than 50% of the final cost of the Services associated with the production of the Raw Artwork.
6.5 Unless otherwise agreed in writing:
(a) the Client grants to GG the right to insert an authorship acknowledgement of the work performed or results achieved and permission to use the final deliverables to promote GG’s services;
(b) in relation to digital presentations and web-based systems or sites designed or developed by GG, the authorship acknowledgement may include one or more hyperlinks from the Deliverable to GG’s website; and
(c) GG shall have no responsibility to archive, store, or otherwise maintain a copy of any Deliverable once a Deliverable has been delivered to the Client.
6.6 The parties:
(a) acknowledge that the Confidential Information is given and received in strict confidence;
(b) shall:
(i) Take reasonable steps to secure all Confidential Information from unauthorised use, access, copying, or disclosure and take reasonable steps to ensure that each employee to whom Confidential Information has been disclosed, keeps that information confidential and complies with such security measures at all times;
(ii) immediately notify the other party of any suspected or actual unauthorised access, use, copying, or disclosure of Confidential Information;
(iii) provide such assistance as is reasonably requested by the other party in relation to any proceedings that the other may take as a result of such suspected or actual breach of this Agreement;
(c) and shall not, without the consent in writing of the other party, except to the extent necessary or expedient to provide the Services or back up material in the ordinary course of business of the parties:
(i) disclose any Confidential Information to any person, other than their employees and contractors; nor
(ii) reproduce any part of the Confidential Information; nor
(iii) describe verbally or in writing any part of the Confidential Information to a potential competitor of the other party; nor
(iv) carry on or be directly or indirectly concerned or interested in any business that does anything specified in sub paragraphs 6.1(c)(i)-(iii) above,
7. Payment Terms and Enforcement Expenses
7.1 GG shall provide a valid tax invoice in respect of the Fees.
7.2 Payment shall be made by the Client by direct debit within fifteen (15) days of the date of the invoice, or as per any agreed payment schedule, whichever is later.
7.3 The Client shall pay:
(a) interest on the overdue amounts at the rate of 1.5% per month; and
(b) an administrative fee of $50.00 for each reminder letter sent by GG seeking payment of an overdue account.
7.4 The Client shall reimburse GG for all reasonable fees and expenses incurred by GG in connection with the recovery of overdue accounts, including legal fees on a solicitor and client basis.
7.5 In addition to GG’s rights in this clause 7, GG may sue for any loss of profits and consequential damage it has suffered as a consequence of the Client’s refusal or failure to perform its obligations under this Agreement.
8. Warranties, Representations, and Limitation of Liability
8.1 The Services will be performed in a proper and workman-like manner.
8.2 In relation to Services that are covered by the ACL:
(a) GG’s Services come with guarantees that cannot be excluded under the ACL.
(b) The Client is entitled to have the Services provided again or have any defects remedied if the original Services were not provided in a proper and workmanlike manner. The Client is entitled to a refund for a major failure and compensation for any other reasonably foreseeable loss or damage.
(c) In addition to other rights and remedies of the Client under the ACL:
(i) GG warrants the Services for the period of twelve (12) months after supply;
(ii) the Client must seek a remedy under this warranty in writing to GG within five (5) Business Days of the fault becoming apparent; and
(iii) each party shall be responsible for their own costs associated with making a claim pursuant to this clause
8.3 To the extent possible, GG’s liability is limited to any one or both of the following:
(a) the supplying of the Services again; and
(b) the payment of the cost of having the Services supplied again.
8.4 In relation to transactions that are not covered by the ACL:
(a) GG is not be liable for, and the Client releases and discharges GG from, any loss or damage whatsoever and whenever suffered by the Client or its agents or employees, in relation to special, indirect, or consequential damages, loss of profit, goodwill, revenue, or loss of anticipated saving or loss, whether by way of death of, or injury to, any person of any nature or kind, accident, or damage to property, delay, financial loss, or otherwise, arising directly or indirectly from or incidental to a breakdown of, or defect in, the Services or any accident to or involving the Services (whether occasioned by the negligence of GG or otherwise) or which may otherwise be suffered or sustained as a result of the Services or as a result of a breach of the terms of this Agreement by it or as a result of a breach of duty of care or negligence arising at law; and
(b) GG’s liability to the Client is limited to:
(i) the supplying of the Services again or the payment of the cost of having the Services supplied again, at GG’s option; and
(ii) the value of this contract in relation to compensation paid to the Client.
8.5 The Client acknowledges that GG gives no warranty or guarantee that the Services or Deliverables will:
(a) be uninterrupted or error free; nor
(b) meet the Client’s requirements, other than as expressly set out in this Agreement; nor
(c) free from external intruders (hackers) or other persons having access to the Services; nor
(d) cease to work properly following subsequent changes or updates to third party software.
8.6 Other than as specified in this clause 8, GG does not give, and no person purporting to act with the authority of GG has given, any condition, warranty, or representation whatsoever in favour of the Client as to the condition or quality of the Services.
9. Use of Third-Party Materials
9.1 GG will notify the Client of the need and any cost of any third-party materials or where the Client must enter into third party supplier contracts to use third party material.
9.2 GG will be responsible for obtaining from the relevant third party the necessary rights to use such materials in the manner and by the persons that they are intended to be used, including GG and the Client.
9.3 Third party licences and material shall be obtained by GG as the Client’s agent and the contractual relationship in respect of those licences, services, and material shall be between the Client and the third party. If there is any defect in any third-party licences, services or other material, the Client acknowledges that the Client’s remedy shall be against the third party, not GG.
10. Termination Provisions
10.1 Each of the following events is an Event of Default:
(a) if the Client fails to pay the Fees on the due date as required under this Agreement and such failure continues for more than five (5) Business Days; or
(b) if the Client fails to perform or observe any of the covenants or provisions of this Agreement on the part of the Client to be performed or observed and (if capable of remedy) such default continues for more than ten (10) Business Days (or such longer period as GG in its absolute discretion permits) after notice from GG requiring the Client to remedy the same; or
(c) if a liquidator, administrator, receiver or trustee in bankruptcy is appointed in respect of the Client or a Director;
(d) if a petition seeking the liquidation or bankruptcy of the Client or a Director is filed; or
(e) if the Client enters into any composition or arrangement with creditors.
10.2 An Event of Default will result in the automatic termination of this Agreement and GG has the right to retain all Fees and other moneys previously paid by the Client to GG under this Agreement.
10.3 Upon such termination, the Client shall forthwith discharge any outstanding Fees.
11. Director Provisions
11.1 In consideration of GG, at the request of the Client and the Directors, entering this Agreement, the Directors:
(a) guarantee to GG the due and punctual performance and observance by the Client of the terms of this Agreement; and
(b) indemnify GG and agree to keep GG indemnified from and against all actions, claims, demands, notices, losses, damages, costs, and expenses of any nature whatsoever suffered or incurred by GG by reason of any breach or non performance by the Client of any of the terms of this Agreement.
11.2 The Directors’ obligations shall not be subject to any prior notice to the Directors with regard to any default of the Client.
12. Miscellaneous Provisions
12.1 Any notice required to be served on either of the parties may be served personally or be left at or sent by letter addressed to the other party at the party’s address specified in the Proposal. If posted, the notice shall be deemed to be served three (3) Business Days hours after posting. Notices sent by facsimile or e-mail shall be deemed to be duly given within one (1) Business Day of receipt by the sender of a transmission control report from the dispatching machine indicating successful transmission.
12.2 If GG is prevented from:
(a) performing any of the Services under this Agreement; or
(b) procuring any other equipment and/or sub-contracted services from its usual sources of supply,
… by reason of any event beyond GG’s control including but not limited to pandemic, quarantine restrictions, strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, embargo, litigation, Court Orders, civil strife, flood, government law or regulation or requirement, GG shall be entitled at its own option to:
(c) delay performance of the Services; or
(d) terminate this Agreement,
… and the Client will have no entitlement to recover any loss or damage as a result of such delay or termination.
12.3 All Fees are specified in Australian Dollars and are exclusive of GST.
12.4 If any part of this Agreement is or becomes void and unenforceable then that part is or will be severed from this Agreement and the remainder shall not be affected.
12.5 This Agreement shall be governed by the laws of Western Australia and the parties submit to the exclusive jurisdiction of the Courts of Western Australia.
12.6 If a party comprises more than one person, each person shall be jointly and severally liable to perform that party’s obligations under this Agreement.
13. Definitions
In this Agreement, the following words shall have the following meanings:
ACL means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth).
Agreement means this agreement.
Annexure means an annexure to this Agreement.
Business Day means a day which is not a Saturday, Sunday, or public or bank holiday in the place where an act is to be performed or payment is to be made.
Commencement Date means the date so specified in the Proposal.
Confidential Information means the terms of this Agreement and all business, financial, and technical information of a party, other than information which:
(a) is in the public domain (except as a result of a breach of this Agreement by the other party); or
(b) comes to the other party through a third party who is under no obligation of confidentiality.
Deliverable means any files, webpage, document or other deliverable created during the provisions of the Services.
Director means a director, partner, trustee, or proprietor of the Client.
Extended Term means any extension to the Term, pursuant to clause 2.2.
Fees means the fees payable to GG by the Client pursuant to this Agreement.
GG means Gilligan Group Pty Ltd ACN 602 512 514, ABN 84 602 512 514.
Intellectual Property Rights means the following intellectual property rights in relation to material produced during the provision of the Services:
(a) the Raw Artwork;
(b) collateral, written materials, brand, art files, strategy, and digital works, including websites and SEO strategy;
(c) any patent, trademarks, copyright, registered design or other design right, electronic or circuit layout right, and any corresponding property or right under the laws of any jurisdiction throughout the world;
(d) any right under the laws of Australia, or of any other jurisdiction throughout the world, to apply for the grant of registration of a patent, trade mark, copyright, design, electronic or circuit layout right, or any corresponding property or right; and
(e) any rights throughout the world in respect of an invention, discovery, trade secret, know-how, concept, idea, information, data, algorithm, or formula.
Raw Artwork means a raw artwork Deliverable, such as an Indesign or Photoshop files, which may contains GG’s know-how, licensing, methodologies, intellectual property, and processes belonging to GG.
Services means the services to be supplied by GG as specified in the Proposal, and any additional services requested by the Client.
Term means the period commencing on the Commencement Date and extending for:
(a) the period specified in the Proposal, if any; or
(b) the period of twelve (12) months, if no period is specified in the Proposal.