Terms & Conditions

 

These are the full and complete terms and conditions upon which USBME PTY LTD

16 629 817 406 (“the Company”) shall provide advertising services to you (“the Client”). You should careful review these terms and conditions. By requesting us to provide our advertising services you agree to be bound by these terms and conditions and such terms and conditions constitute the full and complete terms of the agreement between the Company and the Client (“the Agreement”).

 

  1. Services

    1. The Company is in the business of creating and delivering materials and services for advertising purposes (“the Services”). The Services to be provided by the Company to the Client shall be agreed in writing prior to the Company providing the Services and may, if agreed in writing by the parties, consist of the following:

      1. investigating and studying the Client’s products and services to which the Services are to be provided;

      2. developing advertising concepts;

      3. preparing creative works, drawings, layouts, designs, scripts and storyboards;

      4. liaising with the Client's public relations consultants;

      5. obtaining appropriate permissions from copyright holders, artists, musicians and other third parties if required;

      6. preparing a campaign plan;

      7. advising generally.

1.2 The Client appoints the Company to be the exclusive provider of the Servicesto the Client for a period of 12 months (“the Term”).

1.3 Following the expiry of the Term, the Agreement will automatically renew for further terms each of the same length of time as the Term (“the Further Term”), on the same terms and conditions as set out in the Agreement, unless:

  1. either party gives written notice to the other party advising that it does not wish to renew the Agreement for a Further Term at least 90 days prior to the end of the Term; or

  2. the Agreement otherwise terminates in accordance with any other express right of termination set out in the Agreement.

 

  1. Charges and Payment Terms

 

  1. The Client shall pay:

    1. a deposit in such an amount as determined by the Company on the date of ordering the Services; and

    2. any invoice issued to the Client by the Company within 14 days of the date of such invoice.

  2. The Client shall be liable for and pay, when requested by the Company to do so, all fees and charges of third party suppliers that have been engaged by the Company to supply products and services in connection with the performance of the Services.

  3. The Client shall pay the Company interest on any amount due and not paid by the Client within the time required by the Agreement at the rate of twelve per cent (12%) per annum calculated daily.

  4. In the event that:

    1. the supply of the Services is delayed;

    2. the Company is required to supply the Services in circumstances other than those expressly or reasonably assumed or contemplated in a transaction of this nature; or

    3. there is a change in the timing or complexity of delivery;

then the Company shall be entitled to payment of an additional charge on a time and materials basis in respect of additional resources reasonably utilised in order to fulfil its obligations under the Agreement.

    1. If the Client cancels the Services:

      1. within 14 days of being ordered – the Client shall forfeit the total amount of the deposit paid (or the balance of any unpaid deposit) to the Company and the Company shall be entitled to keep any deposit paid and may recover the balance of the deposit unpaid, if any, as a debt due and payable;

      2. after 14 days of being ordered – the Client shall forfeit the total amount of the deposit paid (or the balance of any unpaid deposit) to the Company and the Client must pay to the Company, within 7 days of cancellation:

(i) the balance of any deposit unpaid; and

(ii) the total cost of the Services, less the deposit;

and such amounts may be recovered by the Company as a debt due and payable by the Client.

    1. In addition to the amounts set out above, the Client agrees to indemnify the Company for all legal costs (on a full indemnity basis) and all other expenses incurred by the Company in connection with a demand, action or proceeding arising out of a breach by the Client of the Agreement including (without limitation) any failure by the Client to pay any amount due and payable to the Company

 

  1. Liability of the Company

 

  1. Except in relation to liability for personal injury (including sickness and death), the Company shall be under no liability to the Client in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of the Services pursuant to the Agreement or in respect of a failure or omission on the part of the Company to comply with its obligations under the Agreement.

  2. Subject to subclause 3, the Client warrants that it has not relied on any representation made by the Company which has not been stated expressly in the Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Company.

  3. The Client acknowledges that to the extent the Company has made any representation which is not otherwise expressly stated in the Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.

  4. The Client shall at all times indemnify and hold harmless the Company and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

    1. a breach by the Client of its obligations under the Agreement; or

    2. any wilful, unlawful or negligent act or omission of the Client.

3.5 The Company’s aggregate liability arising out of or in connection with the Agreement is limited to $25,000.

 

  1. Client Requirements

 

  1. The Client must:

    1. provide the Company with such information and assistance necessary to enable the Company to provide the Services;

    2. unless otherwise advised in writing, provide all logos, written material, photographs and other products in such format and in such timeframe as requested by the Company to enable it to provide the Services.

 

  1. Confidentiality

 

  1. The parties agree to keep all confidential information in relation to the business of the other confidential during and after the term of the Agreement. This clause 5.1 will not apply to:

    1. any information which has been published other than through a breach of the Agreement;

    2. information in the possession of the recipient party before the disclosure under the Agreement took place;

    3. information obtained from a third party who is free to disclose it;

    4. information which a party is required by law to disclose.

 

6. Implied terms

 

6.1 Subject to subclause 2, any condition or warranty which would otherwise be implied in the Agreement is hereby excluded.

. However, the liability of the Company for any breach of such condition or warranty shall be limited, at the option of the Company, to one or more of the following:

  1. if the breach relates to goods:

  1. the replacement of the goods or the supply of equivalent goods;

  2. the repair of such goods;

  3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

  4. the payment of the cost of having the goods repaired; and

  1. if the breach relates to services:

  1. the supplying of the services again; or

  2. the payment of the cost of having the services supplied again.

  1. Intellectual Property Rights

 

    1. In the Agreement and this clause 7, the term ‘Intellectual Property Rights’ shall mean ‘all existing and future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trademarks, service marks, trade names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing or come to exist in Australia or otherwise’.

    2. All legal and beneficial ownership of all Intellectual Property Rights in the Services and any and all advertising material, brand and marketing communications including without limitation, ideas, designs, concepts, original compositions, printing templates and pro-formas, brochures, artwork, finished advertisements, radio and television commercials and all trademarks and trade names, brand names, trade symbols, logos, slogans or other trade indicia purchased, prepared, created, developed or acquired, by or on behalf of the Company pursuant to the Agreement (“the Materials”) will remain or be vested in the Company.

    3. Nothing in the Agreement is or will be taken to constitute a transfer, assignment or grant of any ownership of any Intellectual Property Rights in the Materials from the Company to the Client.

    4. Subject to the Client paying all invoices issued to it by the Company, paying all fees and charges of third party suppliers and complying with each and every clause of the Agreement, the Company grants the Client a non-exclusive, perpetual licence to use the Material solely for its own internal and external promotional purposes.

    5. The Client grants the Company a non-exclusive licence for the Term or any Further Term to use any material provided to the Company by or at the direction of the Client for the purposes of the Agreement, including without limitation, documents, equipment, software and information. Nothing in the Agreement will be taken to constitute a transfer, assignment or grant of any ownership of any Intellectual Property Rights in such material from the Client to the Company.

    6. The Company does not represent or warrant that the Materials do not infringe the intellectual property rights of any third parties. The Client unconditionally and irrevocably releases and discharges the Company from any claim that the Materials infringe the intellectual property rights of any person and the Client shall not make any claim, demand or commence any proceedings against the Company claiming or alleging loss or damage by reason of its use of the Materials and the Client acknowledges and agrees that the Company shall not be liable for any such loss or damage.

    7. The Client acknowledges that the Company is relying upon the release provided in clause 7.6 above in agreeing to provide the Services pursuant to the Agreement and that clause is a material inducement to the Company agreeing to provide the Services to the Client.

 

  1. Termination

 

    1. Without limiting the generality of any other clause in the Agreement, the Company may terminate the Agreement immediately by notice in writing if:

      1. the Client is in breach of any clause of the Agreement and such breach is not remedied within thirty (30) days of written notice by the Company;

      2. the Client becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

      3. the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

      4. the Client, being a natural person, dies; or

      5. the Client ceases or threatens to cease conducting its business in the normal manner.

    2. If notice is given to the Client pursuant to subclause 1, the Company may, in addition to terminating the Agreement:

      1. retain any moneys paid;

      2. charge a reasonable sum for work performed in respect of which payment has not been made;

      3. be regarded as discharged from any further obligations under the Agreement; and

      4. pursue any additional or alternative remedies provided by law.

 

  1. Force Majeure

 

    1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to force majeure.

    2. If a delay or failure of a party to perform its obligations is caused or anticipated due to force majeure, the performance of that party's obligations will be suspended.

    3. If a delay or failure by a party to perform its obligations due to force majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

    4. If the Agreement is terminated pursuant to subclause 3, the Company shall refund moneys previously paid by the Client pursuant to the Agreement for Services not provided by the Company to the Client.

 

  1. Sub-contracts

 

The Company may, without the consent of the Client, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services pursuant to the Agreement.

 

  1. Entire Agreement

 

The Agreement constitute the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

 

  1. Assignment and Novation

 

    1. The benefit of the Agreement shall not be assigned by the Client without the Company’s written consent.

    2. The Company may consent to the assignment or novation of the Agreement by the Client subject to such conditions as the Company chooses to impose.

    3. The Company may assign or novate the benefit and obligation of the Agreement in its sole discretion and on such terms it chooses to impose.

 

  1. Variation

 

The provisions of the Agreement shall not be varied, except by agreement in writing signed by each party.

 

  1. Severability

 

If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

 

  1. Governing Law

 

The Agreement will be governed by and construed according to the law of state of New South Wales and the Company and the Client consent to the exclusive jurisdiction of the Courts of that state.