CMBG agrees to provide you (Client) with the services set out in CMBG written proposal and/or quotation on the following terms and conditions. That proposal and/or quotation and these terms and conditions will together form a binding and entire agreement upon the Client’s acceptance of quotation or proposal (Agreement), unless otherwise agreed between those parties in writing.
A. CMBG is engaged in the business of providing strategy, marketing, branding and related services to its clients in Australia.
B. The Client wishes to appoint CMBG on an exclusive basis, to provide the Marketing Services (as defined in clause 1 of this Agreement), and CMBG has agreed to such appointment, on the terms and conditions set out in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
“Monthly Service Fee” means the agreed Monthly Service Fee to be paid by the Client to CMBG in accordance with clause 4 of this Agreement, in consideration of the provision of the Standard Marketing Services by CMBG, being the amount specified in the Quote of this Agreement, which amount may be amended in writing in accordance with this Agreement, from time to time.
“Marketing Services” means the various strategy, branding, marketing and related services to be provided by CMBG to the Client pursuant to this Agreement, including:
“Standard Marketing Services”, being the standard, core services and/or activities to be provided by CMBG throughout the Term as a matter of course; AND, if applicable “Additional Marketing Projects” being any special projects/events/services which fall outside the Standard Marketing Services, as may be requested by the Client during the Term, on a ‘project by project’ basis;
“Special Project Fee” means the professional fees to be paid by the Client to CMBG in consideration of the provision of any Special Marketing Project, as agreed in accordance with clause 3.2 herein.
“Term” means the term of this Agreement and includes both the “Initial Term” being the initial fixed period commencing and ending on the dates specified in the Quote of this proposal, and also includes any further period beyond the expiry date for the initial term whereby CMBG continues to provide the Marketing Services to the Client, at the request of the Client.
In this Agreement, unless the context otherwise requires:
(a) a recital, schedule or annexure forms part of this Agreement;
(b) all references to ‘dollars’ or ‘$’ are references to Australian dollars;
(c) any provision of this Agreement to be performed by two or more persons shall bind those persons jointly and each of them severally; and
(d) the expression ‘persons’ includes an individual, the estate of an individual, a body politic, a corporation and a statutory or other authority or association (incorporated or unincorporated).
2. APPOINTMENT OF CMBG TO PROVIDE MARKETING SERVICES
2.1 The Client hereby engages CMBG, and CMBG hereby agrees, to provide the Marketing Services as required, on an exclusive basis, during the Term (as defined in clause 1 of this Agreement), on the terms and conditions set out in this Agreement.
2.2 CMBG shall ensure the delivery of the Marketing Services in accordance with any direction given by the Client from time to time, provided that such directions are reasonable and consistent with the provisions of this Agreement.
2.3 Having obtained the Client’s general approval in principle for a particular Standard Marketing activity or Special Marketing Project, CMBG will submit to the Client for specific approval, all draft graphics, articles, copy and any other materials produced or procured by CMBG. CMBG will only need general approval of brand messaging and tone for social media platforms replies. Written or oral approval by the Client will be deemed authorisation to proceed to publication in each case. Should the Client not provide written or oral approval of scheduled content after a reasonable amount of time is provided, CMBG will publish the content as scheduled.
2.4 CMBG will take the initiative in offering advice and services, and the Client agrees to cooperate fully with CMBG and to assist CMBG with the performance of this Agreement by making available to CMBG all information and assistance as may be requested by CMBG from time to time.
2.5 The parties agree that CMBG may publicise its association with the Client’s name and/or brand, and include those details in a list to be shown to prospective or existing clients.
3. PROFESSIONAL FEES AND COSTS
3.1 Consultancy Fee for Standard Marketing Services
In consideration of CMBG providing the Standard Marketing Services, the Client will pay CMBG the Monthly Service Fee in accordance with clause 4 of this Agreement.
3.2 Special Project Fee for Special Marketing Projects
Where the Client requests CMBG to provide services in relation to a Special Marketing Project (being services/campaigns/activities which fall outside the Scope of Work), and CMBG has agreed to provide the Special Marketing Project, the Client will pay CMBG a Special Project Fee in accordance with clause 4 of this Agreement. For the purposes of this clause 3.2, CMBG will submit a project budget setting out the estimated Special Project Fee, which fee/s will be estimated based on CMBG’s standard rate as well as any Production Costs in accordance with clause 3.3(b) (“Special Project Budget”). The parties agree and acknowledge that no work will be undertaken by CMBG in connection with any Special Marketing Project until the relevant Special Project Budget has been approved in writing by the Client.
3.3 Disbursements and Production Costs for Marketing Services
In addition to the Monthly Service Fee (and/or the Special Project Fee where applicable), the Client shall pay CMBG for the following costs incurred by CMBG on the Client’s behalf, in the course of providing the Marketing Services:
(a) Miscellaneous Disbursements to be charged at cost: includes any and all miscellaneous office/administrative disbursements including but not limited to telecommunications, local travel costs for events or Special Projects, photocopies, local couriers, postage etc.
(b) Production Costs: Any and all production costs, including third party costs, e.g. artwork and mechanical items, film production and design, market research, photography, venue hire, invitations, special events and any other production costs, provided that such costs have been previously notified to the Client by CMBG and approved by the Client in writing.
4. INVOICING AND PAYMENT TERMS
4.1 During the Term, CMBG will invoice the Client as follows:
(a) the Service Fee payable for the Standard Marketing Services provided in respect of each calendar month, will be invoiced monthly in advance (unless otherwise advised). Given the preparation and planning required to manage social channels, monthly invoices will be issued 2 weeks prior to work commencing for the following month. Please note our trading terms (general invoicing) are 10 days from invoicing. Unpaid invoices will result in immediate cessation of posting schedule and no further work will be conducted until payment received;
(b) where applicable, the Campaign/Project Fee will be invoiced 50% upfront and 50% upon completion of the Campaign/Project, as agreed in writing between the parties, as per the relevant Campaign/Project Budget; and
(c) CMBG shall provide a tax invoice to fees payable for the Special Project Fee, and payment shall be made to CMBG within 7 days following receipt of the invoice.
(d) All media costs incurred in the delivery of services are to be paid upfront prior to commencement of work; and
(e) any and all Miscellaneous Disbursements and Production Costs payable in connection with the Marketing Services provided in respect of each calendar month will be invoiced monthly in arrears in each case, unless otherwise agreed in writing by the parties. For the purposes of this subclause 4.1(c), the parties agree that CMBG may require the Client to pay certain Production Costs in advance, where substantial advance payments or financial commitments are required to be made by CMBG on the Client’s behalf, and the Client hereby agrees that it will meet any special payment terms stipulated by CMBG in this respect.
4.2 In the event of any dispute in relation to an invoice issued pursuant to this clause 4, the Client must pay the amount of the invoice minus the amount that is in dispute, and must immediately notify CMBG in writing of the nature of the dispute, prior to the due date for payment.
4.3 Interest will be charged at the rate of ten and a half per cent (10%) on any outstanding invoice amounts, where no reason for non-payment has been provided by the Client. For the purposes of this clause 4, where a charge or amount invoiced is in dispute and notification of such dispute is not provided to CMBG by the Client on or before date due date for payment, interest will be charged on the overdue amount pursuant to this clause 4.6 until written notification of the dispute is received by CMBG.
4.4 In the event that a new contract is not issued before the end of the contracted period, and work continues as per the agreed scope within this contract beyond the agreed term, then all terms and conditions of this contract will remain effective until appropriate notice is provided or the scope of work revised and a new contract issued.
4.5 In the event that CMBG provides the Client services outside of the scope of the contract and/or approved quoted work, the Client will be billed at CMBG hourly rates as defined by the quote/contract.
Where a party to this Agreement (“the Supplier”) makes a Taxable Supply under or in connection with this Agreement or in connection with any matter or thing occurring under this Agreement to another party to this Agreement (the “Recipient”), the Supplier will be entitled, in addition to any other consideration recoverable in respect of the supply, to recover from the Recipient the amount of any GST on the Taxable Supply. If the amount paid by the Recipient to the Supplier in respect of GST differs from the GST on the Taxable Supply (taking into account any Adjustments Events that occur in relation to the Supply), an adjustment shall be made. If the amount paid by the Recipient exceeds the GST on the Taxable Supply, the Supplier shall refund the excess to the Recipient. If the amount paid by the Recipient is less than the GST on the Taxable Supply, the Recipient shall pay the deficiency to the Supplier. Where a party to this Agreement is entitled, under or in connection with this Agreement or in connection with any matter or thing occurring under this Agreement, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs.
In this clause:
“GST legislation” means the A New Tax System (Goods and Services Tax) Act 1999 and any related Act imposing such tax or legislation that is an Act to validate, recapture or recoup such tax;
“GST” means the tax payable on Taxable Suppliers under the GST Legislation; and
“Adjustment Event”, “Input Tax Credit” and “Taxable Supply” each have the respective meaning given to that term in the GST Legislation.
6. CONFIDENTIAL INFORMATION
6.1 The parties agree that all information relating to the other party which comes to the knowledge of a party pursuant to this Agreement is confidential and shall be used solely for the purpose contemplated herein and shall not be disclosed to any third party. However, this obligation of confidentiality shall not apply to information which:
(a) is or lawfully comes into the public domain, other than as a result of a breach of this clause;
(b) is already in possession of the party receiving that information without restriction, and prior to any disclosure by the other party, as evidenced by the appropriate documentation;
(c) is required by law to be disclosed;
(d) is disclosed to the party receiving the information by a third party who has a right to disclose that information without putting an obligation of confidentiality on the party receiving that information;
(e) is required to be disclosed to enable a party to carry out its obligations under this Agreement; or
(f) is disclosed with the prior consent of the other party.
6.2 The obligations set out in this clause shall apply both during and after the termination or expiry of this Agreement.
7.1 The Client will indemnify and hold CMBG harmless from and against any and all claims, demands, regulatory proceeding and/or causes of action, and all damages, losses, liabilities, costs (including without limitation settlement costs) or expenses associated therewith (including without limitation legal fees on a full indemnity basis) arising from any information or materials supplied to CMBG by the Client in connection with, or otherwise associated with the provision of the Marketing Services, or from any act or thing done by CMBG on the Client’s instructions, as well as any third party contracts entered into by CMBG on the Client’s behalf. Without limitation to this clause 7.1, the Client acknowledges and agrees that it is its sole responsibility to ensure that the content of any material prepared by CMBG in relation to the Client and its products/services pursuant to the provision of the Marketing Services, and which is approved by the Client pursuant to clause 2.3 of this Agreement, is accurate and correct in all respects.
7.2 CMBG will indemnify and hold the Client harmless from and against any and all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including without limitation settlement costs) or expenses associated therewith (including without limitation legal fees on a full indemnity basis) arising out of any act of bad faith, intentional malfeasance or negligence by CMBG in the provision of the Marketing Services. Without limitation, CMBG will be responsible for ensuring that all materials and work prepared and actioned pursuant to its provision of the Marketing Services, is approved by the Client.
7.3 Each indemnity set out in this clause 7 is a continuing obligation, separate and independent from the other obligations of the parties, and survives the termination or expiry of this Agreement.
8. OWNERSHIP OF MATERIALS
8.1 Subject to clauses 8.2 and 8.3, CMBG agrees that, after full settlement by the Client of all invoices and accounts relating to the creation of any materials (including artwork and copy) prepared by CMBG and accepted by the Client for use in its marketing activities pursuant to this Agreement (“Materials”), any intellectual property in any such Materials (including any copyright), to the extent allowed by law, and subject to any third party rights and moral rights, will assign to the Client. If a full assignment is not possible, CMBG will use its best endeavours to advise the Client of any relevant limitations. CMBG shall, upon the written request of the Client, forthwith execute all documents and do all things as may be required to effect such assignment and to vest such property in the Materials with the Client.
8.2 The Client acknowledges that CMBG can only assign the intellectual property rights, which CMBG owns and there may be limitations on the use and ownership of certain materials by the rights of third parties such as the existence of limited licences to use talent and music, and moral rights. CMBG will endeavour to secure moral rights consents from the creators of any such materials. However, the Client acknowledges that it may not always be possible to secure such consents (particularly for freelancers and consultants) and that even if consents are obtained, the extent of such consents may be limited. CMBG will endeavour to advise the Client of the existence of such limitations under which the Client will be bound.
8.3 The Client further agrees that all CMBG ‘Working Files’ (used in the creation of art design and finished artwork), together with any idea or concept presented by CMBG in relation to any possible, considered or planned public relations activity or event which is not the subject of work or services actually commissioned by the Client, are not assigned to the Client under clause 9.1 and will remain the property of, and form part of the confidential information of, CMBG. The Client must keep such information strictly confidential and must not communicate the information to any third person, use or copy any part of it, without CMBG’s prior written consent. The Client agrees to return to CMBG any document containing or referring to such confidential information on the earlier to occur of a request by CMBG, or the termination or expiry of this Agreement. This sub-clause survives the termination of this agreement. Notwithstanding this clause 8.3, the Client may request to purchase any Working Files and CMBG may agree to sell same to the Client at a rate agreed (minimum 10% of completed job value) between the parties.
9. TERMINATION AND EFFECT OF TERMINATION
9.1During the Term of this Agreement, either party may terminate this agreement immediately:
(a) by written notice to the other party in the event of a material breach of this Agreement by the other party which is not rectified within fourteen (14) days of receipt of a written notice specifying the breach and the steps required to be taken to correct the breach;
(b) by written notice to the other party upon the happening of any of the following events of insolvency:
(i) a party resolves to wind up or otherwise dissolve, or an application is made to a court for an order for either party to be wound up, or for a liquidator or provisional liquidator to be appointed to either party, or such an order is made, or either party enters or resolves to enter into administration or a scheme or deed of arrangement or composition with or assignment for the benefit of any or all creditors, except to reconstruct or amalgamate while solvent;
(ii) one of the parties is unable to pay its debts when they fall due;
(iii) sections 459F(1), 459C(2)(b) or 585 of the Corporations Act 2001 (Cwlth) applies; or
(iv) on the occurrence of any similar event to those described above under any law in any jurisdiction.
9.2 In addition to clause 9.1, upon the expiry of the Initial Term (as defined in clause 1.1), either party may terminate this Agreement without cause by giving the other party one (1) calendar month’s written notice to that effect.
9.3 During any notice period under clause 9, CMBG’s rights, duties and responsibilities shall continue in full force during the notice period, and CMBG shall be entitled to payment by the Client of all fees and other costs payable pursuant to this Agreement in respect of the billing periods falling within the notice period.
9.4 The Client agrees to settle promptly any outstanding accounts with respect to the period prior to the effective date of termination.
9.5 Upon request, CMBG agrees to transfer or assign to the Client or its designee any unexpired contracts and arrangements made exclusively on the Client’s behalf which are capable of being transferred or assigned without penalty, PROVIDED THAT upon such transfer or assignment, the Client agrees to release and hold CMBG harmless in relation to any future obligations under such contracts and arrangements.
9.6 CMBG agrees that immediately upon termination of this Agreement, it will deliver to the Client:
(a) all original or copied papers, records or other documents provided by the Client to CMBG for the performance of the Marketing Services under the Agreement; and
(b) all property of the Client in CMBG’s possession or control.
(c) Notwithstanding this clause 9.6, the parties agree that any property made available by the Client during the Term for any purpose arising in connection with this Agreement shall be and at all times remain at the risk of the Client.
10. REVIEW OF MARKETING SERVICES AND MONTHLY SERVICE FEES AND COSTS
Upon the expiration of the Initial Term (and every twelve (12) months thereafter during the Term), the parties may conduct a review of the consultancy service arrangement provided in this Agreement in order to assess whether any revisions are required to be made to the Marketing Services provided by CMBG, and, if necessary any corresponding revision to the Monthly Service Fee (if applicable) and/or other remuneration provisions contained herein. Any such revisions to the arrangements contemplated by this Agreement must be agreed in writing, signed by both parties and annexed to this Agreement.
11.1 The Client hereby acknowledges and agrees that once a Standard Marketing Services activity (or a Special Project Budget for any Special Marketing Project pursuant to 3.2) has been costed and submitted by CMBG and approved by the Client, pursuant to this Agreement, work for the particular activity (or other project) will commence, in accordance with the scope of services and cost estimates for the activity (or other project) set out in the relevant budget. In this respect, the Client further acknowledges and agrees that any subsequent cancellation or amendment to the activity (or other project) by the Client may render any and all internal services performed by CMBG and/or any and all external services procured by CMBG, in relation to the activity (or other project) prior to the date of receipt of notification of such cancellation/amendment, unnecessary (in the case of a cancellation) or no longer relevant (in the case of an amendment to a particular aspect of the activity or other project).
11.2 In the event that the Client requests that CMBG change, reject, cancel or stop any or all plans or work in progress, CMBG shall take all reasonable steps to comply with the Client’s request, provided that CMBG can do so within its contractual obligations to third parties. In the event of any such amendment, cancellation, or the termination of this Agreement (after approval of the budget/s submitted by CMBG), the Client hereby agrees to indemnify CMBG for any and all charges or expenses to which CMBG is committed (including but not limited to all third party costs and expenses incurred by CMBG in connection with the relevant activity or other project), and the Client will also pay CMBG its remuneration for the applicable professional services provided by CMBG in relation to those items, as at the date of receipt of notification by CMBG of such amendment, cancellation or termination, including but not limited to, the full Monthly Service Fee (in the case of all Standard Marketing Services) and, in the case of any Special Marketing Project, no less than 60% of the Special Project Fee, as set out in the relevant budget estimate.
12. 1. CMBG agrees that during the Term of this Agreement, and for a further 12 months after the expiry thereof, it will not solicit or entice a member of the Client’s staff to cease employment and work for CMBG. Similarly, the Client agrees that for the same period, it will not solicit or entice a member of CMBG’s staff to cease employment and work for the Client.
12. 2. CMBG hold exclusivity to its Suppliers and holds rights to withhold their details based on the time spent in discovery, vetting, logistics and relationship building in their delivery of CMBG services. In the case that a client requests Supplier details, and CMBG agrees to disclose these details, this is done only for the purpose of the Client to add credibility to their own selection process, and the Client agrees that they will not solicit business and contact the Supplier directly for any other purpose than selection.
13.1 Entire Agreement
This Agreement (and its Schedules and attachments) constitutes the entire agreement of the parties as to its subject matter and supersedes all prior agreements, understandings and negotiations as to such subject matter.
Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction if possible, so as to be valid or unenforceable and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
No variation to this Agreement shall be effective unless and until it is set out in writing and signed by all parties to this Agreement.
Any notice, consent or other communications required by this Agreement must be in writing and addressed to the address of the intended recipient as shown on the first page of this Agreement, or to such other address as has been most recently notified to the intended recipient to the party giving the notice. For the purposes of this clause 13.4, a letter is taken to have been received by the other party:
(a) in the case of a hand delivered letter, on receipt by the party to whom it is addressed; or
(b) in the case of a posted letter, on the third Business Day after posting.
This Agreement may be signed in any number of counterparts with the same effect as if the separate signatures or execution of the parties were all on the same instrument.
13.6 Governing Law
This Agreement is governed by the laws in force in Victoria, Australia.