A. The Client appoints Mr Yum to deliver the Services outlined under any Statement of Work under this Agreement and Mr Yum accepts such appointment.
B. Mr Yum and Client agree that appointment of Mr Yum to deliver the Services are governed by the terms and conditions set out under this Agreement.
TERMS AND CONDITIONS
1. STATEMENT OF WORK
(a) These terms will apply to the Client's dealings with Mr Yum in respect of the services provided to the Client as set out in a Statement of Work (each a Statement of Work and contained in the Schedule to this Agreement) together with any additional terms included in such Statement of Work (provided such additional terms are recorded in writing).
(b) In the event of any inconsistency between these terms and conditions and any Statement of Work, the clauses of the Statement of Work will prevail to the extent of such inconsistency.
In consideration for the payment of the Fees, Mr Yum will provide the Client with services set out in a Statement of Work (Services).
Unless otherwise agreed, Mr Yum may, in its discretion:
(a) not commence work on any Services until the Client has paid any deposit (if any) in respect of such Services; and
(b) withhold delivery of Services until the Client has paid the invoice in respect of such Services.
The Client must pay to Mr Yum fees in the amounts and at the times set out in the Statement of
Work or as otherwise agreed (Fees).
3.2 TIME FOR PAYMENT
Unless otherwise agreed:
(a) if Mr Yum issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 30 days of receiving an invoice for amounts payable,
failing which Mr Yum shall be entitled to charge interest on the overdue Fees at the Penalty Interest Rate accruing daily from the date the Fees are due and payable.
Unless otherwise agreed:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Mr Yum in connection with a Statement of Work;
(b) any third party costs incurred by Mr Yum in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Statement of Work.
Unless otherwise indicated, amounts stated in a Statement of Work are exclusive of GST. In relation to any GST payable for a taxable supply by Mr Yum, the Client must pay the GST subject to Mr Yum providing a valid tax invoice.
3.5 CARD SURCHARGES
Mr Yum reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
At any given time, the Parties may (by mutual agreement) expand, amend or change the scope of the Services set out in a Statement of Work. The Client agrees to pay additional charges for changes to Services requested by Client which are outside the scope set out in the relevant Statement of Work (Changes).
Unless otherwise agreed:
(a) the additional fees associated with the Changes will be set out by Mr Yum to the Client in writing; and
(b) Mr Yum may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by Mr Yum, bear an accreditation and/or a copyright notice including Mr Yum's name in the form, size and location as directed by Mr Yum; and
(b) Mr Yum retains the right to describe the Services and reproduce, publish and display the Deliverables in Mr Yum's portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
6. CONFIDENTIALITY & RESTRAINT
Except as contemplated by this Agreement or a Statement of Work, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
(a) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(b) information required to be disclosed by any law; or
(c) information disclosed by Mr Yum to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
7. INTELLECTUAL PROPERTY
7.1 CLIENT CONTENT
The Client grants to Mr Yum (and its subcontractors, employees or agents) a perpetual, non- exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
(a) warrants that Mr Yum's receipt and use of Client Content as contemplated by a Statement of Work will not infringe any third-party Intellectual Property Rights; and
(b) will indemnify Mr Yum from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of any such infringement.
7.2 MR YUM IP
Unless otherwise expressly agreed in writing by Mr Yum, the Client will not under these terms or any Statement of Works acquire Intellectual Property Rights in any Mr Yum IP. Any Developed IP will be solely and exclusively owned by Mr Yum.
Mr Yum grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Mr Yum IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables.
(a) To the maximum extent permitted by applicable Law, all express or implied representations and warranties not expressly stated in this Agreement are excluded.
(b) For the avoidance of any doubt, Mr Yum makes no warranties whatsoever regarding the outcome or likelihood of success of any marketing, promotional or other business activity undertaken by the Client in connection with the Services and/or Deliverables provided by Mr Yum, and the Client agrees and acknowledges that any reliance by the Client on the Services and any information or advice that may be provided by Mr Yum in connection with the Services is at the Client’s own risk.
(c) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
9. LIMITATION OF LIABILITY
(a) (Limitation of liability) To the maximum extent permitted by applicable Law, the maximum aggregate liability of Mr Yum to the Client in respect of loss or damage sustained by the Client arising under or in connection with this Agreement is limited to the total Fees paid to Mr Yum by the Client in the period of up to 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) The Client agrees at all times to indemnify and hold harmless Mr Yum and its officers, employees and agents ("those indemnified") from and against any and all claims, loss, costs (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client's officers’, employees’ or agents’:
(i) breach of any term of this Agreement;
(ii) use of the Services resulting in any third party claims made in connection with or arising out of the Client’s use of the Services; and/or
(iii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) Mr Yum will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any goods or services provided by Mr Yum, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable Law.
10.1 TERMINATION FOR CONVENIENCE
Mr Yum may terminate this Agreement for convenience at any time by providing 30 days written notice to the Client.
10.2 TERMINATION FOR CAUSE
Either party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to
the other party (Defaulting Party) if the Defaulting Party is in breach of this Agreement and either:
(a) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting
Party requiring it to remedy such breach; or
(b) that breach is not capable of remedy
10.3 EFFECT OF TERMINATION
Upon termination of this Agreement:
(a) Unless Mr Yum terminates this Agreement due to the Client’s breach under clause 10.2 or during the Minimum Term (if applicable), Mr Yum will refund any amounts paid by the Client for Services not provided as at the date of termination;
(b) each party must return all property of other parties to those respective parties;
(c) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
(d) no rights, liabilities or remedies of any party that accrued prior to the termination will be invalidated by the termination.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
11. DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.
(d) If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this Agreement.
(e) If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
(a) A notice or other communication to a party under this Agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
13.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Victoria. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
This Agreement may only be amended in accordance with a written agreement between the parties.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
13.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
13.9 ENTIRE AGREEMENT
This Agreement, together with any documents referred to in this Agreement or provided by reference to this Agreement from time to time, embody the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
13.10 NO CREATION OF RELATIONSHIP
This Agreement does not give rise to any fiduciary, partnership, joint venture, agency, trust, employment or other relationship recognised at law or in equity between the parties.
14 DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:
(a) “Agreement” means this services agreement and includes any Statement of Work issued by Mr Yum to the Client in respect of those Services.
(b) "Client Content" means any documents or materials supplied by the Client to Mr Yum under or in connection with this Agreement or a Statement of Work, including any Intellectual Property Rights attaching to those materials.
(c) “Confidential Information” means information of or provided by a party (Disclosing Party) to the other party (Receiving Party) that is by its nature confidential information, including:
(i) all information relating directly or indirectly to any party (including but not limited to the business performance, strategy and processes of a party);
(ii) any information that is designated by Disclosing Party as confidential; or
(iii) any information that the Receiving Party knows or ought to know is confidential (including the terms of this Agreement),
but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(d) "Developed IP" means any materials produced by Mr Yum in the course of providing Services including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
(e) “Fees” has the meaning given to it in clause 3.1 of this Agreement.
(f) “Law” means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are performed or received and includes any industry codes or conduct.
(g) “Minimum Term” means the minimum number of months required to be committed by the Client where the Services are provided on a retainer basis.
(h) "Mr Yum IP" all materials owned or licensed by Mr Yum that is not Developed IP and any Intellectual Property Rights attaching to those materials.
(i) "Intellectual Property Rights" means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trademarks, designs, patents, invention, moral rights, eligible layout, trade, business, customer data, company and domain names and other proprietary rights, and Confidential Information and the right to have information kept confidential:
(i) whether at common law or conferred by statute; and
(ii) Including the right to apply for registration in respect of those rights whether created before or after the Commencement Date, whether registered or unregistered.
(j) “Penalty Interest Rate” means the rate of 2% per annum plus the rate for the time being fixed by section 2 of the Penalty Interest Rates Act 1983 (Vic).
(k) “Services” means the services provided by Mr Yum under this Agreement and detailed in the Statement of Work.
(l) “Statement of Work” has the meaning given to it in clause 1(a) of this Agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or "dollar" is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech
or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether
incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a
trustee, includes any substituted or additional trustee;
(g) (this Agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment
or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word "includes" and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that