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ELEVATE COMMUNICATION PTY LTD
These Terms and Conditions (Terms), together with the letter of engagement (Engagement Letter) set out the terms of the provision of public relations, communication, marketing and event services (Agreement) between the client identified in the Engagement Letter (Client, you) and Elevate Communication Pty Ltd (ACN 655 006 054) trading as Elevate Communication of 4/13 Manilla Street, East Brisbane 4169, QLD (us, our, Elevate).
Elevate is engaged in the business of communication services. The Client wishes to appoint Elevate to provide the communication services outlined in the Engagement Letter (Services). Elevate agrees to provide the Services on the terms and conditions of this Agreement.
a. The Agreement:
i. commences on the earlier of the start date set out in the Engagement Letter or when Elevate first provides Services to the Client (Start Date);
ii. ends on the earlier of the end date set out in the Engagement Letter, the date of termination of this Agreement (terminated validly in accordance with clause f), or one year after the Start Date (End Date); and
iii. may be extended past the End Date if agreed by the parties in writing prior to the End Date.
b. If you continue to engage Elevate to provide Services after the End Date and the parties have not agreed to an extension of the End Date, Elevate may continue to provide you the Services at the rates outlined in the Engagement Letter (Applicable Rates) and on the terms of this Agreement.
a. The Client must pay the fees for the Services set out in the Engagement Letter (Fees).
b. Any quotation, estimate or budget of Fees for the Services provided by Elevate:
i. is an estimate only and Elevate reserves the right to review its Fees from time to time;
ii. does not include any expenses or disbursements that Elevate may be required to incur on behalf of the Client from time to time (Expenses); and
iii. is made on the basis that Elevate will only be required to complete no more than 2 rounds of amendments to any documents and deliverables that Elevate is required to prepare or review. Estimated fees will be provided in advance prior to further amendments.
c. Elevate reserves the right to charge you for any additional time and costs in connection with any further amendments or attendances at the Applicable Rates.
d. Elevate reserves the right to vary the scope of the Services and the Fees payable in respect of the Services. Elevate will notify you of any variation to the scope of the Services and Fees payable.
e. If you request Elevate to perform additional work outside of the scope of Services, such change in scope will amount to a variation of this Agreement and additional Fees will be payable by you for any additional work performed by Elevate at our Applicable Rates.
f. Any additional planning, management, attendances or other work either requested by you or deemed necessary upon mutual agreement between the Client and Elevate shall be charged at our Applicable Rates together with all outlays and expenses reasonably incurred in connection with such additional work.
a. You may be required to pay part of the Fees to Elevate prior to the provision of Services, as outlined in the Engagement Letter (Deposit). Elevate has no obligation to begin to perform the Services until it has received full payment of the Deposit from you.
b. Elevate will invoice you for the remainder of the Fees and Expenses incurred throughout the Term in accordance with the terms of payment outlined in the Engagement Letter. Payment of Fees and Expenses to Elevate is due within 7 days from the invoice date.
c. If you fail to pay any amounts due to Elevate under the Agreement by the due date stated on any invoice issued to you, Elevate may:
i. charge you interest at the current NAB overdraft rate for the period for which the Tax Invoice is unpaid;
ii. suspend performance of the Services to you;
iii. terminate the Agreement in accordance with clause 15; and/or
iv. retain any money that Elevate holds until the overdue amounts have been paid in full.
The Client agrees that during the Term:
a. it must assist Elevate promptly, upon request being made, by providing materials and information reasonably required by Elevate to perform the Services. If the Client does not provide Elevate with materials or information requested by Elevate within 5 business days of the request being made, Elevate may be unable to provide the Services and such failure will not amount to a breach of this Agreement by Elevate;
b. it must pay all Fees and Expenses promptly in accordance with the Agreement;
a. Elevate agrees to perform the Services in a professional manner and in accordance with this Agreement and any applicable laws.
b. Elevate does not make any representations, guarantees or warranties in relation to any outcome or results that may be achieved as a result of the Services.
a. Under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services.
b. Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. Any express warranty given in this Agreement is in addition to and does not limit your rights under the ACL.
To the maximum extent permitted by law and subject to clause 8:
a. Elevate shall not be liable to the Client, for loss of profits, or liability for any consequential or indirect loss of any nature whatsoever, including without limitation liabilities, losses, damage, damages, penalties, fines, taxes, judgments, costs and legal and other expenses including but not limited to loss of use, revenue or any loss of business, loss of production, contract or goodwill;
b. the liability of Elevate and each of its officers, employees and agents in relation to the performance or otherwise of any of their respective obligations under the Agreement and/or the performance of the Services (including without limitation in respect of negligence and other tort) shall not exceed and is limited to the lesser of:
i. $1,000,000; or
ii. the Fees for the relevant Services or the re-supply of the Services at the election of Elevate, where the Loss relates to a matter which insurance required by this Agreement does not apply or such insurance or amounts of any proceeds have been prejudicially affected by an act or omission of either party;
iii. except as expressly provided to the contrary in this Agreement, all warranties or guarantees whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally are excluded by Elevate; and
iv. the Client warrants that it has not relied on any representation made by Elevate which are not expressly stated in this Agreement.
a. To the maximum extent permitted by law and subject to clause d, the Client indemnifies and keeps Elevate and its officers, employees, representatives, subcontractors and agents (Personnel) indemnified against all claims, losses, actions, damages, costs (including legal costs) and expenses of any kind whatsoever (including statutory, common law (including contract and negligence) and in equity) (Claim) arising out of or in connection with:
i. the performance of the Services by Elevate and its Personnel; or
ii. the failure of the Client to perform any of its obligations under this Agreement, and resulting from:
A. personal injury (including death or disease) to any officer, employee or agent of the Client, Elevate or its Personnel or to any third party;
B. loss of, or damage to, any property owned by the Client, Elevate, its Personnel or any third party as supplied under this Agreement;
C. actual or alleged infringement of any Intellectual Property right;
D. breach of or non-compliance with any legislation, statute, ordinance, regulation, by-law or order made thereunder or other lawful requirement of any government or regulator.
b. Elevate may recover any Claim from the Client as a debt due and owing to Elevate.
c. The Client’s indemnities in this clause are not restricted, limited or waived by any provision of this Agreement, including with regard to insurance or by Elevate’s approval of any insurance policy.
d. The Client will not in any event be liable to Elevate for any Claim to the extent it is caused or contributed to by the wrongful or negligent acts or omissions of Elevate or its Personnel.
a. Elevate Communication must, throughout the Term and for 3 years after the End Date, effect and keep current all insurances required by law or otherwise required for the protection of itself and the other party and their respective Personnel engaged in the provision of the Services, including the following insurances with a reputable insurer on commercially reasonable terms:
i. public liability insurance with a level of cover not less than $10 million; and
ii. professional indemnity insurance with a level of cover not less than $1million.
b. Each party shall, upon written request, provide to the other copies of the insurance policies and certificates of currency of the policies.
The Client shall nominate in writing within 7 days from the date of the Agreement, a person from whom Elevate shall take instructions regarding the Services. Elevate shall not be obliged to accept instructions from any persons other than the nominated person. If no such person is nominated by the Client, and in the event of any dispute, the Managing Director or CEO of the Client is deemed to be the nominated person.
a. In this Agreement, “Intellectual Property” means all industrial and intellectual property rights throughout the world and includes registered and unregistered rights in respect of copyright, patents, trademarks, designs, trade secrets, know-how, circuit layouts, trade, business, company or domain names, any right to have confidential information kept confidential and other proprietary rights.
b. Elevate retains ownership of all its Intellectual Property created prior to and during the performance of the Services.
c. Subject to payment of all Fees and Expenses payable to Elevate under this Agreement, Elevate grants the Client a personal, royalty-free, non-transferable, non-exclusive, perpetual licence to use any Intellectual Property that Elevate develops in providing the Services for the purpose it was prepared and any related incidental internal purposes in accordance with this Agreement. The Client must not make other use the Intellectual Property, including on-supplying the Intellectual Property or any document or deliverable, without Elevate’s prior written consent (which Elevate may exercise at its sole discretion).
d. The Client grants a personal, non-transferable, non-exclusive, royalty-free licence to Elevate to use Intellectual Property in any materials the Client supplies to Elevate in order to perform the Services. The Client warrant to Elevate that it has the right to use and supply to Elevate, the Intellectual Property in any such material.
a. Each party agrees to protect and keep confidential any Confidential Information of the other.
b. Except as set out in this Agreement, or where both parties agree otherwise in writing, Elevate will only use or disclose the Client’s Confidential Information to provide the Services or other services the Client may request.
c. Each party may disclose the other’s Confidential Information to their respective professional advisers and insurers on a confidential basis.
d. In this Agreement “Confidential Information” means:
i. the terms of this Agreement and the details of the Services;
ii. any information or material which is proprietary to a party or acquired by either party solely as a result of the Services;
iii. any Intellectual Property, methodologies and technologies Elevate uses to provide the Services; and
iv. any information designated as confidential by either party,
v. but excludes any information that:
vi. is or becomes publicly available, except by breach of this Agreement;
vii. is disclosed to either party by a third party, provided the recipient reasonably believes the third party is legally entitled to disclose such information;
viii. was known to the party before it received it from the other or is developed by either party independently; or
ix. is disclosed with the other party’s prior written consent.
a. This Agreement will terminate on the earlier of:
i. the date stated in a written notice of termination given by either party, provided that date is at least 90 days after the date the notice is given;
ii. immediately, upon your receipt of notice of termination from Elevate, if any payment due by you to Elevate pursuant to this Agreement remains unpaid after the time stated on any tax invoice issued to you by Elevate;
iii. immediately, if the other party is in material breach of this Agreement that either cannot be remedied or is not remedied within 14 days of receipt of notice requiring the breach to be remedied; or
iv. immediately, if either party is subject to an Insolvency Event.
b. In this Agreement, “Insolvency Event” means:
i. the making of an arrangement, compromise or composition with, or assignment for the benefit or, one or more creditors of a party;
ii. the appointment of administrators, liquidators, receivers, a bankruptcy trustee or analogous person to, or over, all or part of a party’s business, assets or securities;
iii. an application being made, or a resolution being proposed, which seeks to effect such an appointment other than for a solvent reconstruction; or
iv. the existence of a legislative presumption of insolvency in relation to a party.
On expiry of the Term or earlier termination of this Agreement in accordance with clause f:
a. the Client must pay all Fees to Elevate up to the end of one month after the date of termination;
b. Elevate may retain any moneys paid by the Client to Elevate;
c. Elevate may recover any expenses for all work performed but not invoiced before termination;
d. Elevate will be regarded as discharged from any further obligations under this Agreement;
e. Elevate will return to the Client all materials, originals and copies, of all documents or information provided to Elevate by the Client;
f. any accrued rights of either party or any provision of this Agreement that survives termination are not affected; and
g. the provisions of this clause g and clauses 10, 11, d, e and n survive expiry or termination of this Agreement.
a. From the date you engage Elevate to the date which is 3 months after the date on which you cease to engage Elevate, you must not and you must procure that each of your related bodies corporate, officers, employees and agents do not:
i. solicit, canvass, approach, accept an approach from, seek to engage or engage the services of:
A. any employees of Elevate;
B. any person who was an employee of Elevate during the 12 month period ending on the date when you ceased to engage Elevate; or
C. any person who was an employee of Elevate during the 12 month period ending on the date on which you engaged or sought to engage the services of such person;
ii. otherwise seek to interfere with the relationship between Elevate and any of its employees;
iii. enter into any contracts or arrangements with an employee of Elevate, or any entity which an employee of Elevate is involved as trustee, principal, agent, director, shareholder, unitholder, beneficiary, independent contractor, consultant, adviser or in any other capacity; or
iv. offer any inducements, shares, gifts, rewards or other benefits to any employee of Elevate.
b. Clause a does not restrict any person from recruiting a person through a recruitment agency (except if the agency directly targets an employee of Elevate) or in a response to a general newspaper, web page or other public employment advertisement.
All amounts in this Agreement are exclusive of Goods and Services Tax (GST). Where a supply made by Elevate is subject to GST, the Client will upon receipt of a valid tax invoice pay, in addition to any other amount payable to Elevate, an amount equal to the GST on that supply. All other Taxes payable in Australia, other than Taxes chargeable on net income derived by Elevate, shall be the liability of the Client. In this Agreement “Taxes” means all present and future taxes (including without limitation (GST) levies, imposts, duties, excise, charges, fees, deductions, or withholding of any nature imposed, levied, collected, withheld or assessed by any taxing authority.
The Client’s engagement of Elevate is made on a non-exclusive basis. The Client acknowledges and agrees that Elevate may have a client relationship with another party operating in the same market segment and the Client consents to Elevate acting for those other parties. Elevate will abide by its confidentiality obligations and manage any potential conflict of interest arising from any such other engagement.
The Agreement does not create a relationship of principal and agent, joint venture, partnership or fiduciary relationship between Elevate and the Client and the parties agree that the Client is an independent entity.
No right under this Agreement shall be deemed to be waived by a party except if such waiver is in writing signed by the party alleged to have waived the right. A waiver by a party pursuant to this clause l will not prejudice the rights in respect of any subsequent breach of this Agreement by the other party.
This Agreement (as amended from time to time) comprises the entire agreement between the parties for the Services. It supersedes all prior proposals, presentations, communications, negotiations, arrangements and agreements, either oral or written between the parties in relation to its subject matter. To the extent of any inconsistency between these Terms and the Engagement Letter, the terms of the Engagement Letter will prevail.
If any part of this Agreement is found to be invalid or of no force or effect under any applicable law, this Agreement shall be construed as though such part had not been inserted and the remainder of this Agreement shall retain its full force and effect.
This Agreement shall be governed by and construed in accordance with the law of the State of Queensland. The parties hereby agree to submit to the non-exclusive jurisdiction of the courts and tribunals of Queensland.
If any provision or any part of a provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from the unenforceable or illegal provision or any part of a provision, which shall be deemed deleted.
a. Notices under this Agreement may be delivered by hand, registered mail, facsimile or email to the addresses of the parties specified in or notified pursuant to this Agreement.
b. Notice will be given:
i. in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or duly authorised employee, agent or representative of the receiving party;
ii. in the case of facsimile, upon proof of completion of transmission, that is, by facsimile activity report; or
iii. in the case of email, the time that the intended recipient or person duly authorised by the recipient acknowledges receipt.
In this Agreement, unless the context requires otherwise:
a. a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity;
b. a reference to a natural person includes their personal representatives, successors and permitted assigns;
c. a reference to a corporation includes its successors and permitted assigns;
d. an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally;
e. including and includes are not words of limitation; (f) a word that is derived from a defined word has a corresponding meaning;
g. monetary amounts are expressed in Australian dollars; and
h. the singular includes the plural and vice-versa.
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