1 Scope of Agreement
1.1 This Agreement will apply to any Services proposed or undertaken by BKMGG for the Client.
1.2 In the absence of written confirmation, the instructions to proceed (whether in writing or verbally) in respect of a Service Request and/or Insertion Order will constitute acceptance by the Client of this Agreement.
1.3 The Agreement comprises:
1.3.1 this Master Service Agreement;
1.3.2 any Service Requests; and
1.3.3 any Insertion Orders.
1.4 BKMGG may amend the Agreement from time to time by providing the Client with 7 days’ notice. The Client is taken to accept the amended Agreement unless the Client notifies BKMGG in writing within 7 days.
2 Relationship
2.1 The parties are independent contracting parties with rights, obligations and liabilities as specified in this Agreement.
2.2 Nothing in this Agreement will be construed as establishing any partnership, joint venture, employment or other relationship between the parties.
2.3 The Client expressly acknowledges that the Agreement does not create an exclusive relationship between BKMGG and the Client. The Client is free to engage others to perform services of the same or similar nature to those provided by BKMGG, and BKMGG is entitled to offer and provide services to others, solicit other clients and otherwise advertise its services as BKMGG thinks fit.
3 Corporate Authority
3.1 Each party hereby represents and warrants to each other party that if it is a corporate entity:
3.1.1 it is validly existing under the laws of its place of incorporation;
3.1.2 the execution and delivery of this Agreement has been properly authorised by all necessary corporate or other action required by it;
3.1.3 it has full corporate power and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement; and
3.1.4 this Agreement does not conflict with or result in the breach of or default under any provision of its constitution or any material term or provision of any agreement or deed or any writ, order or injunction, judgment, law, rule, or regulation to which it is a party or is subject or by which it is bound.
4 Trust Authority
4.1 Each party hereby represents and warrants to each other party that if it has entered into this Agreement as the trustee of a trust (Trust):
4.1.1 the party is validly appointed as the trustee(s) of the Trust, is not in breach of its obligation as trustee and no circumstances exist pursuant to which it may be removed as trustee of the Trust;
4.1.2 this Agreement is duly executed in proper exercise of the powers of the party as trustee of the Trust and all formalities required by the trust deed of the Trust in connection with this Agreement have been complied with; and
4.1.3 the execution and performance of this Agreement is for a proper purpose of and provides commercial benefit to the Trust.
5 Instructions & Communication
5.1 BKMGG will receive and accept instructions from the person addressed in a Service Request and/or Insertion Order.
5.2 BKMGG will assume that any other person, employee or agent that gives BKMGG instructions in lieu of or in addition to the person addressed in a Service Request and/or Insertion Order, has the Client’s authority to do so and those instructions will be deemed as instructions of the Client to BKMGG.
5.3 BKMGG will not be liable in any way for any loss or damage suffered by the Client in accepting instructions from any person(s) contemplated by this clause 5.
5.4 BKMG may elect to communicate by email, SMS or such other digital form as is convenient.
6 Services
6.1 Subject to the terms of this Agreement and any applicable Service Request and/or Insertion Order, BKMG will provide the Services to the Client.
6.2 The Client may instruct, or the parties may execute, from time to time, additional Service Requests and/or Purchase Orders which at all times are subject to the terms of the Agreement.
6.3 Notwithstanding any provision of the Agreement, BKMG, acting reasonably, reserves the right to reject, delay, pause, suspend, cancel and/or not complete any Service Request or Insertion Order for any reason.
6.4 Unless specifically otherwise provided for in any Service Request or Insertion Order, BKMG charges to the Client include but are not limited to:
6.4.1 BKMG’s professional fees; and
6.4.2 all external third-party costs and disbursements for production, photography and/or artwork licences etc as contemplated or incurred by BKMG.
7 Timing, Deliverables & Acceptance
7.1 The Client must review deliverables within any time frame identified for such reviews and to promptly either:
7.1.1 approve the deliverables in writing; or
7.1.2 provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to BKMG.
7.2 The Client acknowledges and agrees that BKMG’s ability to meet any and all scheduling is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to a Service Request or Insertion Order and that any delays in the Client’s performance or changes in the Services or deliverables requested by Client may delay delivery of the deliverables.
7.3 The Client, within five (5) Business Days of receipt of any deliverable must notify BKMG, in writing, of any failure of such deliverable to comply with proposed specifications, or of any other objections. In the absence of such notice from the Client, the deliverable shall be deemed accepted by the Client.
8 Creative Content
8.1 The Client retains all pre-existing rights, title and interests in and to any Intellectual Property Rights for Creative Content created and/or provided by the Client to BKMG.
8.2 The Client grants to BKMG and its third party publishers and/or partners during the provision of the Services (including but not limited to duration of the Campaign and for a period following the term of the Campaign which may be considered reasonable in BKMG’s industry), a non-exclusive, transferable, worldwide, royalty-free, revocable licence to use, market, display, copy, transmit, distribute and promote the Creative Content for the purposes of the Services (including but not limited to the Campaign) and any related purposes.
8.3 The Client permits and authorises BKMG to make any changes or modifications to the Creative Content, which BKMG may, in its absolute discretion, consider necessary, required, desirable and/or otherwise appropriate for, or in connection with, the purposes of, the provision of the Services.
8.4 In the event that BKMG, upon request by the Client, creates, modifies, adapts, develops any Creative Content (including but not limited to for any Campaign) (the Custom Creative), the Client agrees to only use such Custom Creative for placement by BKMG into BKMG’s publishing network and further agrees not to use any such Custom Creative for placement with any other publishers and/or publishing networks, unless such use has received BKMG’s prior written approval. The Client shall not retain any right, title or interest in and to any Custom Creative and any and all such Intellectual Property Rights shall be vested in and retained by BKMG only on creation.
8.5 BKMG may develop or use for other clients any ideas, concepts, source code, information or know how reflected in any of the materials provided to the Client (in whatever form) or otherwise developed during the course of providing Services to the Client.
8.6 BKMG retains the right to reproduce, publish, display and showcase any Client deliverables in promotional materials, design periodicals and other media or exhibits for the purposes of promotion, recognition or professional advancement.
8.7 BKMG continue to retain all Intellectual Property Rights in BKMG’s preliminary work and working files.
9 Display/Web Based Advertising
9.1 Any additions and/or amendments to a Campaign shall be submitted to BKMG no less than five (5) Business Days prior to the launch of the Campaign and will be subject to BKMG’s prior written confirmation.
9.2 The Client acknowledges that, except as otherwise agreed by the parties in writing, BKMG will host the Campaign and provide any related tracking solution, which solution shall be, and serve as, the exclusive tracking solution for monitoring the performance of the Campaign.
9.3 BKMG has the right to place tracking pixels on the Client’s website as may be required to measure web page’s activity, track and/or measure user responses to the Campaign(s) and provide estimated live statistics for BKMG’s affiliates and publishers.
9.4 If the Client wishes to use an alternative tracking system, full technical specifications of any such proposed tracking system and its delivery methods must be provided to, and approved in writing by, the BKMG before any advertising or ad-serving will be provided by BKMG. Regardless of the tracking solution used, any data collected by and through the tracking solution will be jointly owned by the parties.
9.5 The Client must not remove or otherwise modify the tracking pixels at any time during the Campaign without the prior written approval of BKMG.
9.6 The Client acknowledges that any delay in providing to BKMG the Creative Content or approving any such Creative Content to be created or implemented by the BKMG or any other action and/or omission that results in the Campaign’s commencement being delayed for longer than 90 days since the day the Insertion Order is signed entitles BKMG to cancel the Campaign. Such an event is treated as though the Client has cancelled the Campaign and the Client will be liable for cancellation fees and to must full indemnify BKMG for any costs, in accordance with clauses 9.7 and 9.8.
9.7 If the Client terminates stops, suspends, cancels and/or terminates any Campaign prior to the end date specified in the applicable Insertion Order and/or otherwise in accordance with this Agreement, in addition to any of its other obligations, the Client must pay to BKMG a cancellation fee equivalent to 15% of the remaining, that is, initially or subsequently budgeted (whichever is greater) and unspent, media budget, not counting, and in addition to, the 30 days media spend and any management fees which will be incurred during the notice period. The Client acknowledges that this payment is legitimate and reasonable and constitutes payment for the time spent and administrative work performed by BKMG in preparation for the continuation of the Agreement, and if it is deemed to be a penalty, this cancellation fee will instead be calculated on the basis of actual time spent.
9.8 Any cancellation with less than 30 days’ notice given by the Client will, in addition to the cancellation fee (calculated as stipulated in clause 9.7 above), attracts and incurs charges equivalent to the total amount of the initially or subsequently budgeted (whichever is greater) media spend or charges and any management fees which would be incurred or likely to be incurred had the full 30 days’ notice been given by the Client to BKMG.
10 Print Production
10.1 All production, including printing and the arrangement or brokering of print services by BKMG is deemed acceptable if the final product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of those services.
11 Fees, Invoicing & Payment
11.1 In consideration of the Services by BKMG to the Client, the Client must pay to BKMG all Fees in the amounts and according to the payment schedule proposed in any Purchase Request and/or Insertion Order.
11.2 The Client must pay the Fees (and any additional charges or disbursements) to BKMG (into BKMG’s nominated bank account) within 14 days of the date of issue of a tax invoice (as detailed on the tax invoice).
11.3 All Fees (and any additional charges or disbursements) are GST exclusive.
11.4 The Client is deemed to have accepted any tax invoice if no dispute is raised within 14 days of the date of the tax invoice.
11.5 BKMG reserves the right to submit to the Client monthly progress tax invoices against work completed.
11.6 A dispute will not affect payment of non-disputed fees on the same invoice or the payment of any other invoices due by the Client to BKMG and the Client has no right of set off, deduction or counterclaim.
11.7 Payments which become overdue are subject to interest on the amount unpaid from the due date to the date of payment at 1.5% per month on all overdue amounts.
11.8 Payments by the Client to BKMG will be credited firstly to interest accrued and secondly to any unpaid balance.
11.9 All grants of any licence to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full by the Client to BKMG.
11.10 Any costs incurred by BKMG in recovering amounts overdue in respect of any tax invoice will be payable by the Client on a full indemnity basis.
12 Client Responsibilities
12.1 The Client acknowledges that the Client is responsible for performing the following in a reasonable and timely manner:
12.1.1 coordination of any decision-making with parties other than BKMG;
12.1.2 provision of Client content in a form suitable for reproduction or incorporation into the deliverables without further preparation, unless otherwise expressly provided for in a Service Request or Insertion Order; and
12.1.3 final proofreading.
12.2 In the event that the Client has approved deliverables, however errors, such as, by way of example, without limitation typographic errors or misspellings, remain in the finished deliverables the Client is solely responsible for and must assume the cost of correcting such errors.
12.3 In relation to any and all Services and/or any other dealings with BKMG, the Client represents and warrants to BKMG as follows:
12.3.1 the Client owns all right, title and interest in the Client’s business and the Creative Content and as is necessary or required in order to run a Campaign under this Agreement and any applicable Service Request and/or Insertion Order;
12.3.2 the use, reproduction, distribution, transmission or display of any Creative Content and/or any materials to which third parties (including the intended and unintended audience of the Campaign and the public in general) (the users) can link through to from such Creative Content, or any products or services made available to any such users through the Creative Content, will not:
12.3.2.1 violate any applicable laws, rules and/or regulations, including but not limited to those pertaining to Privacy Law and data protection;
12.3.2.2 give rise to criminal and/or civil liability or infringe any Intellectual Property Rights or any other personal, moral, contractual, property or privacy right of any third party; and/or
12.3.2.3 contain any libelous, defamatory, obscene or otherwise inappropriate material or viruses.
12.3.3 the Client has a reasonable basis for all claims made within the Creative Content and possesses all appropriate documentation to substantiate any and all such claims;
12.3.4 the Landing Page for each Campaign contains a prominent link to the Client’s privacy policy, which policy is easy to understand, and which provides, at a minimum, adequate notice, disclosure and choices to users regarding the Client’s and its business partners’ use, collection, disclosure and security of the users’ information and offers the users an opportunity to opt out from such collection and use of the information. For the purposes of this Agreement, the term “Landing Page” shall mean the Client’s website page where a user is directed to when he or she clicks on the Creative Content, completes the registration form or takes a similar action;
12.3.5 All user data collected pursuant to this Agreement is collected, used and processed in accordance with any applicable laws and regulations, including, but not limited to, the Privacy Law. This includes but is not limited to users’ personal data and the use of cookies and tracking; and
12.3.6 the Client will not load any computer program onto a user’s computer in connection with the Campaign, including, without limitation, programs commonly referred to as adware or spyware but excluding cookies, provided that such cookies are disclosed in the Client’s privacy policy, without the BKMG’s prior approval and the user’s express consent after receiving clear and conspicuous notice about the nature and details of the application to be downloaded.
12.4 The Client acknowledges and agrees that the BKMG is merely a facilitator of relationships between, and activities by, the Client and publishers and that BKMG is under no obligation to pre-screen the Creative Content prior to its distribution on BKMG’s network and that BKMG is not responsible for policing, monitoring, editing or ensuring adequacy or compliance of any Creative Content.
12.5 The Client acknowledges that BKMG may share any data received from the Client or otherwise relating to the Client and the Campaigns with various third parties for the purposes of this Agreement and/or the Campaign and/or any related purposes and that any such third parties will or may have access to any such data. The Client hereby permits and authorises BKMG to share any such data with any such third parties for any such purposes.
13 Confidentiality
13.1 Except as permitted by this Agreement, a party must not, and must ensure that its Associates do not:
13.1.1 disclose to any person any Confidential Information of any other party;
13.1.2 use or attempt to use the Confidential Information of any other party for its own benefit or the benefit of any other person.
13.2 A party must take all reasonable steps to maintain the confidentiality of, and prevent unauthorised use of, the Confidential Information of any other party.
13.3 If a party becomes aware of unauthorised use of Confidential Information of any other party, it must notify the other party immediately and provide reasonable assistance to the other party to protect its confidential information.
13.4 Each party’s obligations under this clause continue until:
13.4.1 the party who owns the Confidential Information ceases to treat the information as confidential; or
13.4.2 the party is required to disclose the information by law, in which case it may only disclose it to the extent required by law and must notify the party who owns the confidential information as soon as possible when it becomes aware of the obligation to disclose.
14 Termination
14.1 This Agreement may be terminated:
14.1.1 if a party is in default of its obligations under this Agreement and does not remedy that default within 7 Business Days of receipt of written notice from the other party requiring it to do so, the other party may by written notice terminate the Agreement and neither party shall have any further claims against the other except for those which have arisen prior to termination;
14.1.2 by BKMG on 7 Business Days’ notice in writing to the Client;
14.1.3 by mutual agreement of the parties;
14.1.4 by BKMG without notice where:
14.1.4.1 the Client breaches clause 3, 4, 7, 11, 12, 13, 17, 20, or 21;
14.1.4.2 the Client becomes an externally administered body (within the meaning of the Corporations Act 2001 (Cth)) or a controller (also within the meaning of that Act) is in possession or has control of any of the Client’s property;
14.1.4.3 the Client ceases to carry on the Client’s business or becomes insolvent (within the meaning of the Corporations Act 2001 (Cth)); or
14.1.4.4 the Client engages in dishonesty as determined by BKMG in BKMG’s absolute discretion.
15 Accrued Rights & Consequences of Termination
15.1 If this Agreement is terminated for any reason:
15.1.1 except to the extent specifically noted in this Agreement, termination under clause 14 does not affect any accrued rights or remedies of either party;
15.1.2 the Client must make payment to BKMG for any and all Services performed before the date of termination;
15.1.3 the Client shall immediately cease use of any BKMG technology, services and/or solutions and any co-branded web pages provided by BKMG and inform BKMG in writing and without any undue delay that it has ceased any such use; and
15.1.4 the Client may engage other providers or employ other persons to complete or perform the Services.
16 Obligations after Termination
16.1 The following clauses will survive termination (for whatever reason) of this Agreement:
16.1.1 clause 13 (Confidentiality);
16.1.2 clause 15 (Accrued Rights and Consequences of Termination);
16.1.3 clause 17 (Restricted Activities);
16.1.4 clause 20 (Privacy Laws);
16.1.5 clause 21 (Indemnity);
16.1.6 clause 22 (Limitation of Liability); and
16.1.7 any other clauses that make provision for continued operation.
17 Restricted Activities
17.1 With the exception of reasonably documented, pre-existing relationships with direct publishers or networks, or relationships entered into in the ordinary course of the Client’s business during the provision of the Services and for a period of twelve (12) months after expiration or termination of this Agreement, the Client (and its Associates) must not, directly or indirectly solicit, induce, recruit or encourage or counsel any publisher that is a publisher on BKMG’s network for the purpose of obtaining the placement or hosting of advertising in any form, without BKMG’s prior written approval.
17.2 Without the BKMG’s prior written consent, the Client (and its Associates) must not solicit or attempt to solicit business from any of the BKMG’s clients during the provision of the Services and for a period of two (2) years after expiration or termination of this Agreement.
17.3 During the provision of the Services and for a period of twelve (12) months after expiration or termination of this Agreement, the Client (and its Associates) must not, directly or indirectly solicit, recruit, interfere in BKMG’s relationship with, employ, engage or endeavour to entice away from BKMG any director, consultant, employee or contractor of BKMG. In the event such employment or consultation occurs, the Client agrees that BKMG shall be entitled to an agency commission to be the greater of, either:
17.3.1 25% of said person’s starting salary with the Client; or
17.3.2 25% of the fees paid to said person if engaged by the Client as an independent contractor.
17.4 In the event of 17.3.1 above, payment of the commission will be due within 30 days of the employment starting date. In the event of 17.3.2 above, payment will be due at the end of any month during which the independent contractor performed services for the Client. In the event of nonpayment and in connection with this clause, BKMG shall be entitled to seek all remedies under law.
17.5 The Client acknowledges that the restrictions and prohibitions contained in this clause 17 are reasonable having regard to the business and financial interests of BKMG and the nature of the provision of the Services under this Agreement and are given without any coercion or pressure.
17.6 The Client acknowledges that if it breaches any of the obligations under this clause 17, in addition and without prejudice to any other remedy which BKMG may have, BKMG is entitled to seek and obtain interlocutory and permanent injunctive relief in any court of competent jurisdiction.
18 Notices and Consents
18.1 Neither party has authority to bind the other without that other party’s express written consent.
18.2 All notices and consents must be in writing signed by the sender, marked to the attention of the recipient’s contact person and sent to the addresses or fax numbers for notices specified in the Agreement Details or as later notified.
18.3 Notices may be sent by email. Communications sent by email need not be marked for attention. However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.
18.4 Notices are deemed to be served:
18.4.1 if sent by fax or email, upon receipt by the sender of a successful transmission report;
18.4.2 if sent domestically by post, on the third business day after posting; or
18.4.3 if sent internationally by post, on the sixth business day after posting.
19 GST
19.1 All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST inclusive.
19.2 Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with this Agreement, the Recipient must pay to the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following:
19.2.1 the date when any consideration for the taxable supply is first paid or provided;
19.2.2 the date when the Supplier issues a tax invoice to the Recipient.
19.3 If, under or in connection with this Agreement, the Supplier has an adjustment for a supply under the GST Act which varies the amount of GST payable by the Supplier, the Supplier will adjust the amount payable by the Recipient to take account of the varied GST amount. The Supplier must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.
19.4 If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any increase under clause 19.2.2 above. An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.
19.5 Any reference in this Agreement to sales, revenue, income, value or similar amount (Revenue) is a reference to that Revenue exclusive of GST (unless that Revenue is expressed to be GST-inclusive).
19.6 Any reference in this Agreement to cost, expense, liability or similar amount (Expense) is a reference to that Expense exclusive of GST (unless that Expense is expressed to be GST inclusive).
19.7 This clause will not merge on completion and will survive the termination of this Agreement by any party.
19.8 Terms used in this clause that are not otherwise defined in this Agreement have the meanings given to them in the GST Act.
20 Privacy Laws
20.1 The Client agrees to comply with the terms of the Privacy Laws regarding Personal information and not to use Personal Information.
20.2 As the context permits, the Client must ensure that before disclosing any Personal Information to BKMG, the Client is entitled to disclose that information and without taking any further steps as required by the Privacy Laws, BKMG may use and disclose such information for conducting the Services.
20.3 If the Client becomes aware of any breach or alleged breach of the Privacy Laws concerning information disclosed by the Client to BKMG or by BKMG to the Client, then the Client must notify BKMG immediately and comply with any reasonable directions of BKMG with respect to such breach.
21 Indemnity
21.1 The Client must indemnify and keep indemnified BKMG from and against any losses, costs, damages and expenses (including for example, a deductible under an insurance policy) arising from, associated with or connected with:
21.1.1 production of any Custom Content by BKMG;
21.1.2 use of Creative Content by BKMG;
21.1.3 Force Majeure;
21.1.4 inaccurate, delayed or incomplete instructions or communications by the Client to BKMG;
21.1.5 the Campaign;
21.1.6 the Services;
21.1.7 any omission, inaccuracy or conduct of the Client in relation the Services;
21.1.8 the Client’s misuse of the Campaign;
21.1.9 the Client’s breach of the Client’s representations and/or warranties under this Agreement.
21.1.10 failure or alleged failure by the Client to duly perform the Client’s obligations under this Agreement;
21.1.11 the loss of or any damage to, any property of any person;
21.1.12 the death of, or injury to any person
whether caused or contributed to by BKMG, BKMG’s subcontractors, employees or agents or otherwise.
22 Limitation of Liability
22.1 The Client is solely liability for and/or in relation to the Creative Content and/or the Campaign and for any damages, direct or indirect, arising from, or associated with, or connected to, the exposure, use or other reference to the Creative Content and/or the Campaign.
22.2 The Client hereby waives any right to request compensation of any kind or nature from BKMG with respect to any claim raised by any user or any third party against BKMG and/or the Client in connection with the Creative Content and/or the Campaign.
22.3 BKMG does not warrant or guarantee the effectiveness, adequacy and/or suitability of the Campaign and/or the Services nor the conversion rates, pay-up rates, response rates or ability to convert the responses into sales. BKMG makes no warranty as to the generation of leads or of sales. All Insertion Orders are contingent upon BKMG’s ability to procure necessary on-line access.
22.4 To the maximum extent permitted by law, BKMG disclaims all warranties or representations not expressly set out in this Agreement.
22.5 To the maximum extent permitted by law, BKMG will not have any liability to the Client for fines, penalties, taxes (except GST as determined under clause 19) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), legal costs and expenses (except reasonable legal costs awarded by a court) except where such losses are covered by an insurance policy held by BKMG.
22.6 If an insurance policy effected and maintained by BKMG does not cover any loss or liability of the Client arising under this Agreement, BKMG’s total aggregate financial liability to the Client is limited to the Fees under this Agreement.
23 Disputes
23.1 The parties will use reasonable commercial endeavours to resolve disputes between them quickly and, where possible, without resort to legal proceedings.
23.2 If despite the use of reasonable endeavours, the parties cannot reach agreement on any aspect of their respective rights and obligations under this Agreement, either party may notify the other of the existence of a dispute, giving details of the dispute including references to and copies of any relevant documentation and correspondence.
23.3 Within 10 Business Days of receipt of a notice of dispute, each party must prepare a written statement concerning the disagreement (Dispute Summary) and provide a copy of their Dispute Summary to the other.
23.4 If the parties are unable to reach agreement regarding the dispute within 5 Business Days of the exchange of the Dispute Summaries, the parties must provide both Dispute Summaries together with a report on their efforts to resolve the dispute to an independent mediator selected by the President of the Queensland Law Society who must use their reasonable attempts to resolve the dispute.
23.5 The parties maybe assisted in the dispute resolution process by external parties (including of a financial, technical or legal nature).
23.6 Nothing in this clause prevents a party from applying to a court for urgent interlocutory relief or an interim remedy.
23.7 To the greatest extent possible, having regard to the nature of the dispute, the parties must continue to perform their respective obligations under this Agreement, despite the existence of the dispute.
24 Disclosure
24.1 BKMG hereby notifies the Client that BKMG may:
24.1.1 receive a rebate, commission or benefit (financial or otherwise) from a third party;
24.1.2 provide a rebate, commission or benefit (financial or otherwise) to a third party
in connection with the Services under this Agreement.
24.2 The Client acknowledges and accepts that:
24.2.1 a rebate, commission or benefit (financial or otherwise) is or may be payable to BKMG from a third party in respect of the Services and the nature of any rebate, commission or benefit (financial or otherwise); and
24.2.2 the Client may refuse in full or in part the Services;
24.2.3 the Client hereby gives informed consent to any rebate, commission or benefit (financial or otherwise) received or which may be received by BKMG; and
24.2.4 the Client is hereby advised of any payments, rebate, commission or benefit (financial or otherwise) to BKMG from a third party.
24.3 The Client acknowledges and accepts:
24.3.1 a rebate, commission or benefit (financial or otherwise) is or may be payable by BKMG to a third party in respect of the Services and the nature of any rebate, commission or benefit (financial or otherwise); and
24.3.2 the Client may refuse in full or in part the Services; and
24.3.3 the Client hereby gives informed consent to any rebate, commission or benefit (financial or otherwise) provided or which may be provided by BKMG to a third party.
24.4 The Client in agreeing to the terms of this Agreement hereby consents to, and waives, and releases any claims whatsoever for any conflict of interest in the provision of the Service as against BKMG.
25 General
25.1 Each party acknowledges that prior to entering this Agreement it has had the opportunity to obtain independent legal advice in relation to the terms of the Agreement.
25.2 BKMG may, at any time, assign any of the rights (in whole or in part) under, or novate this Agreement, in its absolute discretion. If the BKMG novates this Agreement, BKMG will have no liability in respect of this Agreement from the date of novation. The Client must not assign any of its rights (in whole or in part) under this Agreement without the prior written consent of BKMG. The Client irrevocably consents to BKMG subcontracting of the performance (in full or in part) the Services under this Agreement (including without limitation by any Related Body Corporate of BKMG).
25.3 The Client hereby charges in favour of BKMG all its estate and interest in any land and in any other assets whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Client and consents to the lodging by BKMG of a caveat or caveats which note BKMG’s interest in or over such land or other caveatable property. If BKMG seeks to enforce the security granted by the Client in accordance with this clause, the Client agrees to indemnify BKMG from and against all of the BKMG’s costs and disbursements including (but not limited to) solicitors fees on a solicitor/client basis.
25.4 The individual instructing the Services or confirming this Agreement on behalf of the Client hereby guarantees the payment of all monies that become due and payable under this Agreement. This guarantee will continue following termination of this Agreement until all monies owing BKMG are paid in full.
25.5 This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes any previous understanding, agreement, representation or warranty relating to this subject matter.
25.6 The details of any Service Request and/or Insertion Order supersede and prevail over the terms of this Master Service Agreement to the extent of any inconsistency.
25.7 This Agreement may be executed in one or more counterparts, which taken together constitute one agreement. If so, the signed copies are treated as making up one document and the date on which the last counterpart was executed will be the date of the Agreement. The signature of a party via a scanned or digitised image of a handwritten signature (e.g., scan in PDF format) or an electronic signature (e.g., via DocuSign or HelloSign etc), will have the same force and effect as an original handwritten signature for the purposes of validity, enforceability, and admissibility. Each party receives a fully executed copy of this Agreement. Delivery of the fully executed copy via e-mail or via an electronic signature system shall have the same force and effect as delivery of an original hard copy.
25.8 Any obligations which expressly or by their nature are to continue after termination, cancellation or expiration of this Agreement shall survive and remain in effect after such occurrence. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement,
25.8.1 such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, if such restatement is possible;
25.8.2 if such restatement referred to in 25.8.1 is not possible, such provision will be reduced or severed to the extent necessary; and
25.8.3 the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
25.9 A party’s delay or failure to enforce a provision of this Agreement is not a waiver of that right. A waiver must be in writing and served in accordance with clause 18.
25.10 If a party is unable to comply fully or in part with this Agreement due to a Force Majeure, the non-complying party must notify the party owed the obligations the full details about the Force Majeure, its effect and the expected length of the Force Majeure and delays caused by it.
25.10.1 This notice must be given within 14 days of the Force Majeure occurring.
25.10.2 The obligations of the notifying party so far as they are affected by the Force Majeure, are suspended for the lesser of the period of the Force Majeure or 6 months.
25.10.3 This clause does not excuse any requirement by that the Client or its Associates to pay any money due to BKMG.
25.10.4 The party affected by the Force Majeure must do its best to remedy the Force Majeure promptly.
25.11 Each party will bear its own legal and other costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
25.12 This Agreement is governed by the laws of Queensland. The courts of Queensland have jurisdiction to determine any proceedings in relation to this Agreement.
26 Definitions & Interpretation
26.1 Headings are for ease of reference only and do not affect interpretation.
26.2 In this Agreement, unless the context otherwise requires:
26.2.1 the singular includes the plural and vice versa, and a gender includes other genders;
26.2.2 another grammatical form of a defined word or expression has a corresponding meaning;
26.2.3 a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
26.2.4 a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
26.2.5 a reference to A$, $A, dollar or $ is to Australian currency;
26.2.6 a reference to time is to the capital city of the State time;
26.2.7 a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
26.2.8 a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
26.2.9 a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
26.2.10 a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to it in the Corporations Act 2001 (Cth);
26.2.11 the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
26.2.12 any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
26.2.13 any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
26.2.14 a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
26.2.15 if a day on or by which an obligation must be performed, or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
26.3 In this Agreement:
Additional Charges means the additional costs payable by the Client to BKMG set out in the Service Request, Insertion Order, the Master Services Agreement (or as otherwise agreed between the parties).
Agreement means the terms of the Service Request, Insertion Order and the Master Services Agreement together.
Associates mean employees, agents, officers, directors, partners, consultants, joint venturers, or subcontractors of that party.
BKMG means Blue Key Marketing Group Pty Ltd (ACN 664 860 084).
Business Day any day (except Saturday and Sunday) on which banks are open for general banking business in the capital city of the Queensland.
Creative Content means any multimedia images, graphics, texts, data, links or other objects.
Campaign means an online advertising campaign for the Client.
Client means any person, company, entity or organisation identified as the Client in any Service Request and/or Insertion Order, as applicable.
Client Material means any and all manuals, documentation and other material prepared by the Client and used by AHP Nursing in the course of or in connection with the performance by AHP Nursing of its obligations under this Agreement, whether such material is stored in hard copy or electronic form.
Confidential Information means all confidential information (including this Agreement and details of any non-public or proprietary information regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Agreement relating to the business, technology, customers or other affairs of the disclosing party excluding the Excluded Information.
Excluded Information means Confidential Information which:
• is in the public domain other than by breach of this Agreement;
• the recipient can prove was already known to it at the time of disclosure by the disclosing party, unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality; or
• the recipient acquires from a source other than the disclosing party where such source is entitled to disclose it.
Fee or Fees means such amounts payable by the Client to BKMG in respect of the Services.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
• act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
• act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic;
• the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
• embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
GST means the goods and services tax as imposed by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and all associated legislation.
Insertion Order means an engagement or agreement between an advertiser or advertising agency and BKMG (as authorised by the Client) to run a Campaign (in accordance with Client instructions).
Intellectual Property Rights means any patent, copyright, trade or service mark (whether registered or unregistered), business name, design, trade secret, know how, or other form of intellectual property right, or any right to register that intellectual property, whether arising before or after the date of the Agreement.
Master Service Agreement means these terms and conditions.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Privacy Laws means Privacy Act 1988 (Cth) (and amendments including the Privacy Amendment (Private Sector) Act 2000 (Cth).
Related Body Corporate as defined in the Corporations Act 2001 (Cth)
Services means the provision of:
• creative services including but not limited to branding, brand strategy, graphic design, copyrighting, print management, web design, video and photography, logo and illustrations; and
• digital marketing services including but not limited to social medial marketing, search engine optimisation, email marketing, digital marketing, content marketing, analytics, marketing automation, public relations, media buying
and as otherwise set out in a Service Request and/or Insertion Order as confirmed by the Client (and as amended from time to time).
Service Request means an outline of Services to be performed by BKMG and confirmed by the Client.
