Terms of
Business
Last updated: 28th October 2022
1. Appointment & Exclusivity
1.1 Appointment
On and from the Commencement Date, the Client appoints Windsorborn to provide the Services included in a Proposal referring to these Terms of Business during the Term. Windsorborn accepts this appointment. Together, the Proposal (including any Special Conditions modifying the standard Terms of Business) and these Terms of Business will constitute the entire Terms & Conditions agreed by the Client and Windsorborn.
1.2 Exclusivity
If provided for in Part 1: Agreement Details, the Client appoints Windsorborn as the Client’s exclusive service provider for the Services. The Client acknowledges that Windsorborn is not restricted or restrained from providing its services to any third party.
2. Term
2.1 Minimum Term
(a) This agreement commences on the Commencement Date and will continue for the Minimum Term.
(b) After the Minimum Term, this agreement will continue until it is validly terminated in accordance with clause 15.2.
3. Windsorborn’s Services
3.1 Services
Windsorborn will provide the Services during the Term.
3.2 Changes to Services
(a) If the Client requests a change of any particular Services (Change Request), the Client must make such request in writing in the form specified by Windsorborn and any change is subject to the permissibility of such change within the terms of any contracts between Windsorborn and any relevant third party. The Client must pay Windsorborn for any additional fees arising from a Change Request in accordance with Windsorborn’s standard rates. The Client must reimburse Windsorborn for any charges or costs payable by Windsorborn (including but not limited to non-cancellable third party costs) as a result of the Client’s change requirements or any cancellation.
(b) If a project reaches 80% completion as determined by the stages or milestones specified in the Proposal and the Client cancels the Services, the entire Fees specified in the Proposal for that project are immediately payable to Windsorborn (including the balance of the Fees for Services not yet completed by Windsorborn for that project).
(c) The change or cancellation rights in this clause do not entitle the Client to reduce the amount of any committed periodic retainer Fees (if applicable) specified in a Statement of Work.
3.3 Additional Services
If the Client requires Windsorborn to provide any services that are additional to, or outside the scope of, the Services (“Out of Scope Services”), the parties must agree to such Out of Scope Services in writing and the Out of Scope Services will be provided in accordance with Windsorborn’s standard rates. Once agreed, those new services, and any associated fees and expenses, will form part of the Terms & Conditions.
3.4 Client Obligations
The Client shall:
(a) provide Windsorborn with access to the Client’s premises, data and other facilities where reasonably required in order for Windsorborn to provide the Services; and
(b) provide to Windsorborn in a timely manner the Client Material and all information, instructions, approvals and material that Windsorborn may request from time to time to enable Windsorborn’s timely performance of the Services.
The Client acknowledges that if Windsorborn has completed the Services, subject only to the receipt of Client Material (for example, the Client has not provided its content for Windsorborn to populate a completed website) and the deadline for the applicable project has passed, then the Services are deemed to be complete and the Client must pay the Fees invoiced by Windsorborn.
3.5 Time Tracking & Reporting
(a) Windsorborn tracks hours on all projects for internal management and efficiency purposes. However, this information is not typically shared with the Client unless specifically agreed upon in advance.
(b) For projects agreed upon on a fixed-fee basis, Windsorborn's focus will be on delivering the agreed scope and outcomes. Detailed time tracking and utilisation reporting are not required or provided for these projects unless explicitly requested and agreed upon in writing before the commencement of the project.
(c) For retainer agreements, Windsorborn can provide time tracking and utilisation reporting in accordance with the terms agreed upon in the retainer agreement, but this must be agreed upon upfront in writing.
(d) Windsorborn does not provide time tracking or utilisation reports for projects where fees are calculated as a percentage of media spend. In these cases, fees are based solely on the agreed percentage of media spend.
(e) The Client and Windsorborn may agree to engage on a 'time and materials' basis for projects, with invoicing based on the time spent and materials used. Such arrangements must be agreed upon in writing prior to the commencement of the project.
4. Fees
4.1 Payment of Fees
The Client will pay Windsorborn the Fees in the manner and amounts as specified in the Statement of Work, subject to the Terms & Conditions.
4.2 Costs and Expenses
(a) The Client will reimburse Windsorborn for all approved or reasonable costs, expenses and disbursements incurred by Windsorborn on its behalf, or otherwise in the course of providing the Services, including without limitation, travel and accommodation expenses, out of pocket expenses, and Third Party Costs.
(b) Windsorborn may require that the Client makes a direct payment to any third party, including a payment to a third party media company in respect of any digital marketing or media services.
4.3 Payment Terms
(a) Windsorborn will provide the Client with a valid tax invoice.
(b) All Windsorborn invoices must be paid in accordance with the payment terms set out in the Statement of Work. If the payment terms are not stated in the Statement of Work, the invoice is payable strictly within 14 days following the provision of the invoice by Windsorborn.
(c) If Windsorborn has performed the Services and the Client fails to provide approval or sign-off within three (3) Business Days after any milestone date specified in a Proposal, the Client will be deemed to have approved the applicable Services and Windsorborn may invoice for payment.
(d) If the Client disputes any amount on an invoice, the Client must notify Windsorborn in writing within five (5) days of receipt otherwise any such invoice will be deemed to have been accepted.
4.4 Late Payment
(a) The Client will reimburse Windsorborn for any charges or costs directly incurred by Windsorborn because of the late payment of invoices by the Client.
(b) In addition to all other remedies, Windsorborn is entitled to suspend, cancel or otherwise refuse to provide services until all overdue payments are made.
(c) If any invoice rendered by Windsorborn remains unpaid 30 days following the date of the invoice (or such other period of time required for payment in a Proposal), without prejudice to any other rights that Windsorborn has, penalty interest will be payable on the unpaid amount at the rate of 8% per annum, calculated daily.
4.5 Annual Price Review
An annual Fee review will occur on each anniversary of the Commencement Date (once per year) and the Client agrees that the Fees will increase by a minimum of 3% at that time. Windsorborn may also vary its rate card for additional services at any time in its sole discretion.
4.6 14 Day Media Payment Terms
Windsorborn encourage our clients to own and manage media payments to third party vendors (eg: Facebook)
For those clients that want a fully managed media budget, Windsorborn offers a line of credit on media charges.
Accessing the line of credit incurs a 10% management fee.
Media is invoiced separately to other services that Windsorborn offer.
Media budgets will be invoiced up front and clients will have 14 days to pay the invoice.
Where invoices are overdue, media activity will be paused until payment is made. Where invoices are 30 days overdue, action will be taken to recover debts with any fees incurred related to collection will be passed onto the client.
All care will be taken to resolve any outstanding invoices quickly. Kindly pay your invoice within 14 days.
5. GST
5.1 Definitions
Words or expressions used in this clause that are defined in the GST Act have the same meaning as given in the Act.
5.2 GST
If GST applies to any supply made under the Terms & Conditions, then the party making that supply may, in addition to any other amount payable in the Terms & Conditions, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate and documented on a Tax Invoice. Unless otherwise specified, any amount referred to in a Proposal and payable under the Terms & Conditions is exclusive of GST.
6. Approvals
6.1 Written Approvals
Upon receipt of approval from the Client, Windsorborn has the authority to commence the Services or continue to the next stage of the Services (as may be applicable).
6.2 Project Stages
(a) A Proposal may specify stages and dates for the delivery of Services. Windsorborn will provide the Services in accordance with such stages and the Client will provide written approvals on the delivery of each project stage.
(b) Client approval of a project stage is confirmation that the Client has accepted the Services provided and delivered by Windsorborn. The Client acknowledges that it must pay the applicable Fees for each stage of Services in respect of which approval has been given and the Client will not dispute any validly issued invoice for such Services.
(c) For websites, applications and other digital Services, if the Client provides approval in respect of the user experience (UX) and user interface (UI), that approval is deemed to be an approval to move to the development stage in respect of such Services and acceptance of the project for which such Services have been provided.
(d) Client approval of any project stage is deemed to be unconditional acceptance of the performance and fitness for purpose of the Services by Windsorborn in respect of that project and the Client is not entitled to any reimbursement of any Fees paid to Windsorborn for Services validly provided in respect of such projects.
6.3 Amendments
(a) Subject to any Special Conditions specified in a Proposal, the Client may request up to two rounds of amendments for any Service delivered to the Client for its approval. Any such amendments provided by Windsorborn are capped at the number of hours which are equivalent to 5% of the relevant budgeted hours for the particular project requiring the amendments (and the cap will not be reapplied to the second round of amendments). If the cap is reached any further amendments required by the Client will be charged at standard rates.
(b) If the Client requests any amendments to the Services or otherwise instructs Windsorborn to provide further Services after giving approval to Windsorborn in respect of such Services, those further services or amendments (as applicable) will be deemed to be Out-of-Scope Services and will be charged at standard rates in accordance with clause 3.3.
7. System Requirements
7.1 Client System Requirements
The Client must ensure that any third party systems used by the Client have the capability and functionality to enable Windsorborn to provide the Services, including any integration services (if applicable). Windsorborn is not responsible or liable for any delay caused or contributed to by any errors or compatibility issues with third party systems and the Client acknowledges that Windsorborn may charge extra fees for additional work required to integrate the Services with such systems.
7.2 Client Acknowledgement
The Client acknowledges that the Internet is inherently insecure and that Windsorborn cannot guarantee that any website or service dependent on the Internet will be available or secure from hackers or unauthorised intruders at all times. Windsorborn will not be liable for any security breach, including any loss of data, and the Client is solely responsible and liable for any Loss suffered by the Client in connection with any such security breach.
8. Dealings with Third Parties
8.1 Third Party Suppliers
Windsorborn may engage and use third party service providers for the supply of the Services that it determines to be suitable and the Client appoints Windsorborn as its agents to do so. In such cases, any terms of business of the third party service provider that are additional to the Terms & Conditions will become Special Conditions incorporated into the Terms & Conditions (to the extent applicable). For the avoidance of doubt, all obligations assumed by Windsorborn to the third party service provider shall become obligations of the Client.
9. Intellectual Property
9.1 Client Material
The Client will own all Intellectual Property Rights in the Client Material. Nothing in the Terms & Conditions transfers any ownership rights in the Client Material to Windsorborn. The Client grants to Windsorborn a royalty free licence to use the Client Material solely for the purpose of providing the Services in accordance with the Terms & Conditions.
9.2 Windsorborn Material
Windsorborn will own all Intellectual Property Rights in the Windsorborn Material. Nothing in the Terms & Conditions transfers any ownership rights in the Windsorborn Material to the Client.
Subject to the Client paying the Fees in full to Windsorborn, to the extent that Windsorborn Material is integrated or combined with the Services Material or is required for the Client to be able to use, exploit or execute the Services Material, Windsorborn grants to the Client a non-transferable, royalty free, revocable, non-exclusive licence to use the Windsorborn Material (including any Software developed by Windsorborn), but only for the purposes and subject to any limitations specified in the Terms & Conditions. Any non-exclusive licence granted will automatically expire at the end of the stated licence term and the Client must immediately cease use of and return Windsorborn Material.
9.3 Services Material
Subject to the Client paying the Fees (including any third party and other recoverable costs) in full to Windsorborn, Third Party Costs, Windsorborn will assign all Intellectual Property Rights in the Services Material to the Client, subject to Third Party Material and subject to any other third party interests and/or usage limitations.
Until such time as Client pays in full all Fees and third party and other costs under the Terms & Conditions, Windsorborn grants to Client a limited, revocable, non-transferable licence to use the Services Material to the extent required for the Client to obtain the benefit of the Services. The Client acknowledges that such licence is revocable in Windsorborn’s sole discretion and Client unconditionally agrees to indemnify Windsorborn with respect to any loss or damage whatsoever that Client may incur as a result of the revocation of such licence by Windsorborn.
9.4 Third Party Material
In order to provide the Services, Windsorborn may be required to source and utilise third party proprietary software or public domain content (“Third Party Material”). In such circumstances, the Intellectual Property rights in such Third Party Material is retained by the originator and is released for use by third parties on the basis of a non-exclusive licence. Accordingly, Windsorborn will be unable to exclusively licence or assign such Third Party Material to the Client and the Client acknowledges and agrees that there may be stated, inherent or industry practice-based limitations on the usage of such Third Party Material.
The Client further acknowledges that an assignment or exclusive licence of other Third Party Material may not always be possible and that there may be limitations upon the use of Third Party Material, in which case Windsorborn will use reasonable endeavours to negotiate reasonable terms for a licence, assignment or usage rights in consultation with the Client, but cannot guarantee the outcome of those negotiations.
9.5 Pitch Materials and Proposals
Windsorborn will own all Intellectual Property Rights in Pitch Material and / or Proposals presented or otherwise provided to the Client. All ideas, concepts, approaches and formats used in the Pitch Material (and the Pitch Material and / or Proposal in their entirety) is confidential and communicated to the Client on a strict “commercial in confidence” basis and forms part of Windsorborn’s Confidential Information. Any unique Pitch Material shall become Services Material only to the extent that it is accepted and used by the Client and forms part of the Services.
9.6 Windsorborn Promotion
Windsorborn may refer to the Services provided for the Client in connection with Windsorborn’s promotional or marketing purposes (such as including it in a portfolio, show-reel or on the Windsorborn website) and the Client grants Windsorborn a royalty free licence to use the Client’s name and logo or trademark and to refer to the Services for those purposes.
10. Confidential Information
10.1 Confidentiality
(a) A party will not, without the prior written approval of the other party, disclose or use the other party’s Confidential Information otherwise than in accordance with the Terms & Conditions.
(b) A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information or where the Confidential Information:
(i) was in the public domain at the time of its provision;
(ii) became part of the public domain after its provision, otherwise than through a disclosure by the other party or any person to whom the other party has disclosed that information; or
(iii) is independently developed by the other party without the use of the disclosing party’s information.
11. Windsorborn’s Commitments
11.1 Windsorborn Warranties
Windsorborn warrants that:
(a) it has full power and authority to enter into the Terms & Conditions and perform the Services;
(b) it will provide the Services with the degree of skill, care and diligence expected of persons and suppliers who are similarly experienced in the provision of such services;
(c) the use of the Services and the Services Material by the Client in accordance with the Terms & Conditions will not infringe the rights (including Intellectual Property Rights) of any third party; and
(d) subject to:
(i) clause 13;
(ii) any warranties contained in a Proposal; and
(iii) any service level commitments defined in a Service Level Agreement,
Windsorborn will reperform, repair or replace any defective Service or deliverable if:
(iv) the defect was directly caused by the work carried out by Windsorborn; and
(v) the Client provides Windsorborn with written notice of the defect in a form suitable to Windsorborn within twenty (20) Business Days after the completion of the relevant Service or delivery of the relevant deliverable.
12 Client Commitments
12.1 Client Warranties
The Client warrants that:
(a) it has full power and authority to enter into the Terms & Conditions and fulfil its obligations thereunder;
(b) it has provided Windsorborn with all material information that is necessary for it to plan the Services as per the Proposal;
(c) it will be responsible for the accuracy, completeness, rights to use, propriety and truth of the Client Material;
(d) the Client Material will not contain any information or content that is unlawful, false, misleading or deceptive, discriminatory, defamatory, indecent, obscene, or contrary to any laws, codes or regulatory requirements (including intellectual property, spam, privacy and consumer protection laws); and
(e) the Client will promptly comply with any requests by Windsorborn for any materials or information or authorisations required to provide the Services and keep Windsorborn informed regarding material events or changes that it becomes aware of that may affect the Services.
12.2 Acknowledgments
The Client acknowledges and agrees that Windsorborn is not responsible for the availability or actions of any third party platforms upon which Windsorborn relies in order to provide the Services. Windsorborn works within the defined service terms of such third party platforms, which may vary from time to time without notice
13. Liability and Indemnity
13.1 Limitation of Liability
To the maximum extent permitted by law:
(a) the Services, any deliverables specified in a Proposal and any other features or functions associated with the Services are provided “as is” and “as available” with all faults and without warranty;
(b) Windsorborn does not warrant that any use of the Services or any deliverables will be uninterrupted or error-free; and
(c) Windsorborn does not warrant that any Software licensed by Windsorborn will be compatible with any hardware, Software or data that is not supplied by Windsorborn.
The Client acknowledges that Windsorborn does not warrant that the Services will cause the Client to achieve any business results or commercial performance, including in respect of any digital advertising or marketing communication, search engine optimisation, promotion, campaign or other project.
13.2 No Consequential Loss
In no event will Windsorborn (or its affiliates and related entities, officers, servants, employees and agents) be liable to the Client for any consequential, indirect, incidental, or special Loss even if such Loss was in the contemplation of the parties when agreeing to the Terms & Conditions as a probable result of a breach of the Terms & Conditions, and including any loss of profits, loss or revenue, loss of production, loss of media, business interruption, loss of contract, loss of opportunity, loss of or unauthorised access to information, loss of reputation, loss of goodwill, loss of data, the cost of engaging an alternative service provider and similar Loss, and including in respect of any indemnity claim.
13.3 Other Limitations
Windsorborn (and its affiliates and related entities, officers, servants, employees and agents) will not be liable to the Client for any form of loss or damage whatsoever arising from any act or omission of:
(a) a third party service provider or contractor to Windsorborn;
(b) a third party media organisation, including if such third party discontinues or rejects any advertising or marketing communication; or
(c) any discrepancy, error, fault or malfunction of any third party system, software, or computer server or any other technology based platform.
13.4 Windsorborn Indemnity
Windsorborn will indemnify the Client against any Loss or Claim suffered or incurred by the Client which is caused or contributed to by:
(a) any negligent, wilful, fraudulent, or unlawful act or omission by Windsorborn; and
(b) the death of, or personal injury to, any person, to the extent caused by any act or omission of Windsorborn or any of its personnel, except to the extent that this is caused or contributed to by a breach of the Terms & Conditions, any act or omission, or fraud or negligence of the Client.
13.5 Client Indemnity
Client will indemnify and forever hold Windsorborn and its personnel, servants, agents and directors harmless from any Loss or Claim suffered or incurred by Windsorborn which is caused or contributed to by:
(a) a breach of any warranty by the Client;
(b) any negligent, wilful, fraudulent or unlawful act or omission by the Client;
(c) any claim by any third party (including individuals, legal entities and government departments or agencies) arising directly or indirectly as a result of Windsorborn providing the Services;
(d) the death of, or personal injury to, any person, to the extent caused by any act or omission of a member of the Client or any of its personnel;
(e) any claim or allegation that the Client Material infringes a third party’s Intellectual Property Rights or constitutes an unlawful disclosure or misuse of a third party’s trade secret or Confidential Information, except to the extent that this is caused or contributed to by a breach of the Terms & Conditions, any act or omission, or fraud or negligence of Windsorborn.
13.6 Australian Consumer Law
(a) The Parties acknowledge that 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. Nothing in this agreement will 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.
(b) To the extent the law permits it to, Windsorborn’s entire liability and Client’s exclusive remedy is limited, at Windsorborn’s discretion, to: (a) with respect to the supply of goods: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; (b) with respect to the supply of services: the re-supply of the services; or the payment of the reasonable cost of having the services re-supplied.
14. Privacy and Data
14.1 Privacy
Windsorborn and the Client must comply with the Privacy Act 1988 (Cth) and must follow the other party’s reasonable directions in relation to Personal Information and reasonable privacy protocols provided to it by the other party in respect of all Personal Information provided by the other party.
14.2 Collection, Storage and Communication of Data
If Windsorborn is required to collect any data as part of the Services, the Client acknowledges and agrees that:
(a) it will ensure that its website(s) and all Personal Information collection channels includes a Privacy Act 1988 (Cth) compliant collection statement and privacy policy at all times;
(b) by applying Windsorborn’s cookie tracking technology to the Client’s current and future digital media campaigns, Windsorborn may collect and retain anonymous, de-identified data about users of the Client’s campaigns from the Client’s website(s) and other third party websites; and
(c) Windsorborn may use anonymous, de-identified data to compile aggregate statistics, metrics and general trend data for the enhancement and optimisation of campaigns for the Client and other clients and for marketing, promotional, and analytics purposes and in an anonymous agency database used for trending, analytics and media planning and optimisation purposes for the Client and other clients.
15. Termination
15.1 Termination for Cause
Either party may terminate the Terms & Conditions immediately by giving written notice if:
(a) the other party breaches a material term of the Terms & Conditions and the breach is incapable of remedy, or the party does not remedy that breach within fourteen (14) days of the date of notice of the breach;
(b) it has an express right to terminate under the Terms & Conditions;
(c) the other party is subject to an Insolvency Event.
15.2 Termination for Convenience
On expiry of the Minimum Term, either party may terminate the Terms & Conditions at any time, without cause, by giving the other party ninety (90) days prior written notice.
15.3 Consequences of Termination
(a) Termination, completion or expiry of the Terms & Conditions for any reason does not extinguish or otherwise affect any rights of either Party against the other which accrued prior to termination or out of the events causing such termination including damages or other remedies to which a Party may be entitled.
(b) Upon termination or expiry of the Terms & Conditions for any reason:
i. the Client will be required to pay to Windsorborn all Fees applicable to the Services provided up to the date of termination, together with any approved third party and other recoverable costs and any applicable cancellation costs; and
ii. the Client will assume Windsorborn’s liability and obligations under all outstanding contracts and commitments made on the Client’s behalf under the Terms & Conditions.
16. Dispute Resolution
16.1 Resolving Disputes
(a) Except where a party seeks urgent interlocutory relief, if a dispute arises in relation to the rights and obligations of the parties under the Terms & Conditions (“Dispute”), the parties must follow the procedures set out in this clause before escalating the Dispute to litigation.
(b) The dispute resolution procedures in this clause will arise upon a party notifying the other parties in writing (providing reasonable details) as to the existence and nature of the Dispute and setting out the reasons for its dissatisfaction or claim of breach of the Agreement (“Dispute Notice”).
(c) The parties must use their best endeavours to settle the Dispute within five (5) Business Days after service of a Dispute Notice.
(d) If the Dispute remains unresolved after this time, the respective parties must authorise a person or persons holding the required level of authority to meet within five (5) Business Days to attempt to resolve the Dispute (Representative Discussion).
(e) If the Dispute is not resolved by way of the Representative Discussion the parties will proceed to mediation and then, if that is unsuccessful, arbitration by an independent dispute resolution specialist agreed by the parties based in Sydney, Australia,
(f) If the Dispute is not resolved by way of mediation or arbitration, , a party may take such action as it sees fit, including commencement of legal proceedings.
17. Non-Solicitation
17.1 Non-Solicitation by Client
The Client must not during the Term or within 12 months after its termination or expiry:
(a) induce or solicit (directly or indirectly) an employee of Windsorborn who has worked directly or indirectly in relation to the Services to leave the employ or engagement of Windsorborn; or
(b) engage an employee of Windsorborn who has worked directly or indirectly in relation to the Services, without the prior written consent of Windsorborn.
18. General Matters
18.1 Relationship
The Terms & Conditions do not create a joint venture, partnership, employment or agency relationship between Windsorborn and the Client, except in so far as it is expressly permitted by these Terms of Business or a Special Condition included in a Proposal.
18.2 Entire Agreement
The Terms & Conditions (including both the Terms of Business and the Proposal) contains the entire agreement of the parties with respect to its subject matter and supersedes any previous understanding, agreement, representation or warranty. They may only be amended after acceptance in writing and if agreed by both parties.
18.3 Survival
Any term that by its nature is intended to survive termination of the Terms & Conditions survives the termination of those Terms & Conditions. Each indemnity is a continuing obligation and survives termination of the Terms & Conditions.
18.4 Severability
Any term of the Terms & Conditions which is fully or partly void or unenforceable is severed to the extent that it is void or unenforceable, and the remainder of the Terms & Conditions will continue in force.
18.5 No Waiver
A failure by a party to require a strict or timely adherence to any of the Terms & Conditions will not affect that party’s rights to exercise a right, power or remedy under those Terms & Conditions.
18.6 Force Majeure
Windsorborn will not be liable for any failure or delay in the performance of the Services if that failure or delay is due to a Force Majeure Event and the obligations under the Terms & Conditions are suspended to the extent to which they are affected by the relevant event as long as it continues, provided that Windsorborn will take all reasonable steps to minimise the impacts of such an event on the Services.
18.7 Further Assurances
Each party will execute all documents and do everything reasonably required to give formal effect to any of the relationships and / or transactions contemplated by the Terms & Conditions.
18.8 Assignment
Each party may not assign any of its rights or obligations under the Terms & Conditions without the written consent of the other party.
18.9 Governing Law
The Terms & Conditions are governed by the laws of New South Wales. Each of the parties irrevocably submits to the jurisdiction of the courts of New South Wales and the Federal Court sitting in New South Wales.
18.10 Counterparts
The Terms & Conditions may be accepted in any number of executed counterparts which taken together constitute one document, either in written form or by the exchange of e-mails by representatives of the parties confirming acceptance, as prescribed by the Proposal.
18.11 Priority of Documents
Part 1: Terms of Business will prevail to the extent of any inconsistency with the Proposal, with the exception of any Special Conditions included in the Proposal that directly amend the Terms of Business.
19. Definitions and Interpretation
19.1 Definitions
The following definitions apply in these Terms of Business, unless the context requires otherwise:
“Business Day” means a day other than a Saturday, Sunday or public holiday gazetted in New South Wales.
“Claim” means, in relation to a party, a demand, claim, action or proceeding made or brought by or against that party, however arising and whether present, future or contingent.
“Client Material” means any material or content provided to Windsorborn by or on behalf of the Client in connection with the Terms & Conditions including without limitation content, advertising or campaign material, publications, artwork, documents, equipment, software, information, data and customer lists, and any Client logo, trademark or indicia.
“Commencement Date” means the commencement date specified in the Proposal.
“Confidential Information” means any information relating to a party or its related entities or clients, its products, business methods, systems, software, finances, strategies, trade secrets, client lists, and other information which, by its nature or the way it is disclosed, could reasonably be expected to be regarded as confidential, but excludes any information already in the public domain.
“Force Majeure Event” means any flood, storm or other natural disaster, fire, pandemic, labour dispute, war, riot or terrorism, act of God, act of government or state, communications or equipment failure or any other circumstances beyond Windsorborn’s reasonable control.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Windsorborn Material” means all content, Software, materials, documents, works, functions and other property, including know-how, trade secrets, confidential business information, development tools owned or developed by Windsorborn prior to the Commencement Date, or independently to the Services, and/or created by Windsorborn as an internal development tool whilst providing the Services.
“Insolvency Event” means in relation to an entity:
(a) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertaking of the entity;
(b) the entity suspends payment of its debts generally;
(c) the entity is or becomes unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(d) the entity enters into or resolves to enter into any arrangement, competition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e) an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity; or
(f) an administrator is appointed under the Corporations Act 2001 (Cth).
“Intellectual Property Rights” means all present or 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, domain names, designs, any rights in silicon chip topography, 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 in Australia or otherwise.
“Loss” means loss, damage, liability, charge, expense or cost (including all reasonable legal and other professional costs on a full indemnity basis) of any nature or kind (whether based on contract, tort or otherwise).
“Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not or as otherwise defined under the Privacy Act 1988 (Cth).
“Pitch Material” means any ideas, creative concepts, formats, submissions and other material presented or disclosed to the Client on a “pitch” basis by Windsorborn, for instance at the time of presentation of a preliminary Services statement, costing, campaign proposal or similar, whether included in a Proposal or not.
“Fees” means the fees and charges payable to Windsorborn for the Services as stated in the Proposal.
“Services” means the services to be provided by Windsorborn as set out in the Proposal.
“Services Material” means materials developed by Windsorborn for the purpose of the Services and expressly described in a Proposal, which may include reports, designs or other works, but excludes Windsorborn Material, Client Material or Third Party Material.
“Proposal” means a proposal for Services submitted by Windsorborn to the Client that refers to these Terms of Business. .
“Software” means any computer programs used in relation to the provision of the Services, including but not limited to object code and/or source code, code libraries and engines and computer programs as defined in Section 10 of the Copyright Act 1968 (Cth).
“Special Conditions” means any conditions included in a Proposal that, if accepted by the parties, modify these Terms of Business and are incorporated into the Terms & Conditions. To be effective, they must refer explicitly to the clause(s) in the Terms of Business that are to be modified and unambiguously state how that clause shall be modified.
“Term” means the period set out in a Proposal including the Minimum Term and any Services rollover period that may apply.
“Third Party Costs” means the fees and charges of third party suppliers engaged by Windsorborn as agent for the Client to supply products and / or services in connection with the performance of the Services as may be agreed by the Client from time to time.
“Third Party Material” means any material (including Software) commissioned or licensed by Windsorborn from a third party for the purpose of providing the Services.
19.2 Interpretation
The following rules of interpretation apply in these Terms of Business and in a Proposal, unless the context requires otherwise:
(a) The singular includes the plural and conversely.
(b) A reference to “includes” or “including” should be construed without limitation.
(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to a person includes a body corporate, trust, partnership, unincorporated body or other entity.
(e) A reference to currency, $ or dollars is to Australian currency.