1. DEFINITIONS & INTERPRETATION
1.1 In these Terms unless the context requires otherwise:
Approval means final approval of the Materials (if any are to be delivered pursuant to the Services) given by the Client to Soda Strategic in writing.
Business Day means a day on which trading banks are open for ordinary business in the Australian Capital Territory;
Business Hours means between 9.00am and 5.00pm on a Business Day;
Client means the person or entity named in the Quotation or Proposal.
Confidential Information means all information of and relating to a party and its business including:
(a) trade secrets, drawings, know-how, techniques,
(b) present and future business and marketing plans and projections,
(c) arrangements and agreements with third parties,
(d) concepts not reduced to material form, designs, plans and models,
(e) marketing databases;
(f) financial information and product development information;
(g) all information and records provided in respect of the Clients;
(h) any information which a party advises another party, orally or in writing, is to be regarded as confidential;
excluding any such information which is public knowledge.
Disbursements means any costs or expenses reasonably incurred by Soda Strategic in the course of delivering the Services, including but not limited to printing, scanning, photography, copy writing, proofs, print management fees, courier and delivery charges, CDs, DVDs and document mock ups;
GST means the goods and services tax imposed by the GST Law;
GST Law means A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
A corporation or an individual is Insolvent when any of the following events occur;
a) when it is unable (or indicates that it is unable) to satisfy its debts as and when they fall due;
b) when a corporation is in liquidation or under administration, or when any steps have been taken to appoint a liquidator, administrator or controller, or, in the case of an individual, when a sequestration order is (or could be) made by the court, or a trustee or similar officer is appointed in respect of that individual and his or her assets;
c) when the assets of the corporation or individual are controlled by its creditors, whether through an assignment, moratorium, composition, personal insolvency agreement or other arrangement the corporation or individual has entered into, or resolved to enter into, with its creditors;
d) when a corporation is presumed to be insolvent in accordance with section 459C(2) or section 585 of the Corporations Act, or when an individual satisfies the definition of an ‘insolvent under administration’ in section 9 of the Corporations Act; or
e) when an event happens in connection with the corporation or individual which is analogous to, or that has a substantially similar effect to, any of the events specified in subclauses above.
Intellectual Property means all of a party’s methods, techniques, specifications, procedures, manuals, trade secrets, confidential information, product catalogues, price lists, knowledge and experience relating to the operation of their respective business, including any trademarks, service marks, trading names, copyright and written and visual material and Intellectual Property Rights has a corresponding meaning;
Materials means the final design, brand, print image, illustration, style guide, infographics or other product or services as produced or delivered by Soda Strategic for the Client as part of the Services;
Price means the price for the Services;
Quotation or Proposal means the quotation submitted by Soda Strategic to the Client outlining the scope of the Services, any Special Conditions attaching to the Services and which provides an estimate of the Price which, if accepted, will form the Schedule to these Terms and part of these Terms;
Restrained Capacity means either alone or jointly with another, and either directly or indirectly as a shareholder, unitholder, director, consultant, advisor, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier;
Security Interest has the meaning given to it by section 12 of the Personal Property Securities Act 2009 (Cth);
Services mean the services that Soda Strategic has proposed to provide to the Client (including any Materials to be delivered) as detailed in the Quotation or Proposal, as amended from time to time pursuant to these Terms; and
1.2 In the interpretation of these Terms, unless the contrary intention appears, a reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) an individual or person includes a corporation;
(d) a party includes the party’s executors, administrators, successors and assigns;
(e) a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(f) a recital, clause, paragraph, schedule or annexure is a reference to a recital, clause, paragraph, schedule or annexure of or to these Terms;
(g) any schedule, attachment or other document referred to in or delivered with these Terms forms part of these Terms;
(h) no provision of these Terms will be construed adversely to Soda Strategic solely on the ground that Soda Strategic was responsible for the preparation of these Terms;
(i) where words or phrases are given a defined meaning, any other part of speech or other grammatical form of those words or phrases shall have a corresponding meaning;
(j) a reference to “currency”, “A$”, “$A”, “dollar” or “$” is a reference to Australian currency;
(k) “including” and similar expressions are not and must not be treated as words of limitation; and
(l) headings and tables of contents are inserted for convenience only and have no effect on interpretation.
2. GOVERNING TERMS
2.1 By continuing to instruct Soda Strategic to provide the Services after the Quotation or Proposal (and these Terms) have been given, the Client acknowledges and agrees that they are bound by the Terms.
2.2 These are the only Terms that are binding upon Soda Strategic with the exception of those otherwise agreed in writing by Soda Strategic (for example, special conditions outlined in the Quotation or Proposal) and those terms that are imposed by a statute and which cannot be excluded.
3. RELATIONSHIP OF THE PARTIES
3.1 Soda Strategic is and will always be an independent contractor to the Client for the purposes of the supply of the Services to be performed by Soda Strategic.
3.2 Nothing in these Terms is intended to be or is implied to create a relationship of agency, employment, partnership or joint venture between the parties.
4. QUOTATIONS and PROPOSALS
4.1 Unless previously withdrawn by Soda Strategic, a Quotation or Proposal is valid for 30 days or such period as stated in it.
4.2 A Client must accept the Quotation or Proposal by signing and returning the Quotation or Proposal or by confirming in writing their acceptance of the Quotation or the Proposal (the Client’s Offer).
4.3 A Quotation or Proposal is not to be construed as an obligation to supply the Services but merely an invitation to treat and no contractual relationship will arise from it until the Client’s Offer is accepted in writing by Soda Strategic. The Client’s Offer is an irrevocable offer to engage Soda Strategic to provide the Services for the Price.
4.4 Soda Strategic is NOT bound by any conditions attaching to the Client’s Offer or acceptance of a Quotation or Proposal until and unless such conditions are expressly accepted by Soda Strategic in writing; the Client acknowledges that such conditions are expressly negated.
5.1 Soda Strategic must provide the Services to the Client for the Price and in accordance with any variations or additions agreed to in writing by the parties.
5.2 Soda Strategic will use its best efforts to deliver the Services by the Estimated Delivery Date unless terminated earlier pursuant to clause 12.
5.3 Soda Strategic may use its employees or contractors (or subcontractors) to perform the Services on its behalf.
5.4 Soda Strategic must:
a) perform, and ensure that its personnel perform, the Services with all due care and skill and in
professional, competent and timely manner;
b) ensure that it has, or its personnel have, the requisite skills, qualifications and experience to perform the Services;
c) comply with all applicable laws;
d) otherwise deliver the Services in accordance with these Terms
6. VARIATIONS & ADDITONAL SERVICES
6.1 Any variations to the Services requested by the Client must be agreed to in writing by Soda Strategic.
6.2 If the Client requests that Soda Strategic perform additional services outside the scope of the ‘Services’ or to vary the Services, then Soda Strategic will provide a quotation for those additional or varied services (the Quotation) and the Client must accept that quotation in accordance with clause 4.
6.3 The Client may, from time to time, request to vary the Services, within the scope of the Services which are being provided by Soda Strategic and Soda Strategic will apply all reasonable endeavours to accommodate any reasonably requested variations. If Soda Strategic reasonably regards the variations to be significantly beyond the original intended scope of the Services, the parties agree that the variation will be subject to renegotiation of the agreement. If the parties cannot agree on the variation of Services, the Services will remain unchanged and these Terms will continue in force, but the parties acknowledge Soda Strategic can requote for the proposed variation.
6.4 In the event that it becomes necessary for Soda Strategic to complete additional work outside the scope of the ‘Services’ in order to deliver the Services, the parties agree that:
(a) any additional services so provided will be subject to these Terms;
(b) where possible, the parties will reduce the variation to writing; and
(c) Soda Strategic will be entitled to be paid for any additional work, whether or not the variation is in fact reduced to writing.
7. ACCESS TO THE CLIENT’s PREMISES & THE CLIENT’S STAFF
7.1 The Client must cooperate fully with Soda Strategic by providing access to the relevant premises or facilities (the Site) which is the subject of the Services, as is reasonably necessary to enable Soda Strategic to perform or provide the Services.
7.2 When visiting the Site, Soda Strategic and its personnel must comply with all documented procedures relating to work, health and safety, and security in effect at the Site (including applicable Commonwealth, State or Territory, and local government laws, regulations and procedures).
7.3 Access to the Site may be temporarily denied or suspended by the Client.
7.4 If access is temporarily denied or suspended by the Client then Soda Strategic is entitled to an extension of time to complete any obligations which are directly and adversely affected by the denial of access.
7.5 If access to the Site is not resumed within ten (10) Business Days (or longer period if agreed by both parties), then Soda Strategic may treat the denial of access as the Client’s intention not to proceed with the Services and Soda Strategic may:
(a) terminate these Terms; and
(b) render an Invoice for the Services performed as at the date of termination pursuant to clause 12.4(a).
7.6 The Client will ensure that its personnel meet with Soda Strategic (upon reasonable request by Soda Strategic) as is reasonably necessary for briefing, decisions, queries or approval of work. If the Client’s personnel cannot meet with Soda Strategic in person then the Client must ensure its personnel are available by phone or email to respond to Soda Strategic as and when required.
8. REVISIONS TO MATERIALS
8.1 The Client is responsible for proof reading and approving all drafts of the Materials (the Working Materials) sent to them by Soda Strategic. The Client must take care to identify any errors or omissions, typographical or otherwise.
8.2 Whilst care is taken by the Soda Strategic to avoid errors, by virtue of clause 8.1, the Client accepts and assumes liability for any and all errors which exist in the final version of the Materials.
9. USE OF CLIENT PROPERTY, TITLE TO WORKING MATERIALS & MATERIALS
9.1 The Client grants to Soda Strategic whilst the Services are being provided, a royalty free licence to use any information or Intellectual Property supplied by the Client to Soda Strategic in the course of the Services (Client Material), subject to the following conditions:
(a) the Client Material is to be used solely and exclusively for the purpose of delivering the Services;
(b) Soda Strategic will not disclose the Client Material to any third party (other than its employees, agents or subcontractors) except for the purpose of delivering the Services;
(c) the Client warrants that it holds the appropriate Intellectual Property Rights and any other permissions required for all Client Material and that the supply of the Client Material to Soda Strategic is not in breach of any person’s Intellectual Property or other rights;
(d) the Client indemnifies Soda Strategic from any and all claims and liability resulting from Soda Strategic’s use of the Client Material; and
(e) Soda Strategic will take reasonable steps to ensure that the Client Material is stored securely.
9.2 Soda Strategic acknowledges that the Client retains all title, ownership and Intellectual Property Rights in the Client Material.
9.3 All right, title and interest in all Working Materials remains with Soda Strategic at all times, even after delivery of the final version of the Materials to the Client.
9.4 Title to the Materials (including copyright) passes to the Client immediately upon full payment of the Price provided that Approval of the final version of the Materials has been given. Until full payment of the Price is made, title and all intellectual property rights in the Materials remain with Soda Strategic.
9.5 If these Terms are terminated early in accordance with clauses 12, title to the Materials remains with Soda Strategic, notwithstanding that all outstanding invoices may have been paid in full.
9.6 Upon full payment of the Price and provided that Approval of the final version of the Materials has been given:
(a) Soda Strategic will deliver the final version of the Materials (in a format determined by Soda Strategic); and
(b) all risk in the Materials passes to the Client.
9.7 Approval of Final Design of Materials:
(a) Soda Strategic will provide to the Client a final version of the Materials for Approval.
(b) Work on the Materials will be considered complete where the Client provides Approval to Soda Strategic in writing.
(c) Where Soda Strategic provides a final version of the Materials in accordance with clause 9.7(a) and the Client does not provide a response within 30 days, Approval by the Client will be deemed to be given and work on the Materials will be considered complete.
9.8 The Client grants Soda Strategic a perpetual, world-wide, royalty-free licence to use and reproduce the Materials for the purpose of marketing and promoting Soda Strategic’s business and establishing a portfolio of work (including the use of Material as reference or portfolio works, and as printed and online case studies).
10.1 The terms of this document and all information exchanged between the parties under these Terms during the negotiations preceding these Terms are confidential.
10.2 A party must not disclose any of those terms or information, or any other Confidential Information, to any other person except:
(a) to employees, legal advisers, accountants, auditors and other consultants of the party or its related bodies corporate requiring the information for the purposes of these Terms; or
(b) if the information is, at the date of these Terms, lawfully in the possession of the recipient of the information through sources other than the party who supplied the information; or
(c) if the information is generally and publicly available other than as a result of breach of these Terms; or
(d) if strictly and necessarily required in connection with legal proceedings relating to these Terms, including for the purposes of enforcement of any rights or obligations of a party pursuant to these Terms; or
(e) if required by law or a stock exchange; or
(f) with the consent of the party who supplied the information.
11.1 The Client must pay the Price and all Disbursements to Soda Strategic in consideration for providing the Services.
11.2 If requested by Soda Strategic as part of the Quotation or Proposal, the Client must pay a deposit to Soda Strategic at the time of the Client’s Offer (the Deposit) as a part-payment toward the Price.
11.3 The Deposit is non-refundable.
11.4 Soda Strategic will issue the Client with an Invoice at completion of the Services but reserves the right to render Interim Invoices for part of the Price from time to time if there are Services to be provided over a period of more than four (4) weeks or there are Disbursements incurred which Soda Strategic wishes to pass onto the Client.
11.5 All Invoices rendered are payable within 14 days of the invoice date (the Due Date).
11.6 In the event that an Invoice is not paid by the Due Date then:
(a) interest will accrue on the outstanding balance of the invoice at the rate of 8% p.a. calculated daily from the Due Date until the invoice is paid in full;
(b) if the invoice remains unpaid for a period of more than 60 days after the Due Date then all amounts outstanding becoming immediately due and payable and Soda Strategic may, in its absolute discretion, suspend the Services until all Invoices are paid in full; and
(c) if the invoice remains unpaid for a period of more than 90 days after the Due Date then Soda Strategic may, in its absolute discretion, terminate these Terms.
11.7 The cost of collecting of any monies due and payable by the Client, including the fees of any mercantile agent or lawyer engaged by Soda Strategic will be payable by the Client.
(a) Any reference in this clause to terms defined or used in the GST Law is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
(b) Any amount referred to in these Terms which is relevant in determining a payment to be made by one of the parties to the other is exclusive of any GST unless indicated otherwise.
(c) If GST is imposed on a supply made under or in connection with these Terms then the consideration provided for that supply is increased by the rate at which that GST is imposed. The additional consideration is, subject to the receipt of a tax invoice, payable at the same time as the consideration for the relevant supply.
(d) If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with these Terms, then the amount of the reimbursement will be net of any input tax credits, which may be claimed by the party being reimbursed in relation to that expense or outgoing.
12.1 The parties may terminate these Terms by mutual agreement in writing.
12.2 The Client party may terminate these Terms at any time by giving 30 days written notice to Soda Strategic.
12.3 Soda Strategic may terminate these Terms at any time by giving 30 days written notice to the Client.
12.4 If these Terms are terminated for any reason the parties agree that:
(a) Soda Strategic may render an Invoice for the Services performed as at the date of termination;
(b) the Client must pay all amounts outstanding (including any newly rendered invoices) immediately; and
(c) both parties must return or destroy all Confidential Information of the other party in its possession or control.
13. PERSONAL PROPERTY SECURITIES ACT 2009
13.1 Notwithstanding that title in the Materials does not pass until full payment is made, as security for the payment of the Price, the Client grants to Soda Strategic a Security Interest over any Working Materials, Materials or goods which Soda Strategic supplies to the Client as part of the Services (Collateral).
13.2 Soda Strategic may, in its absolute discretion, register the Security Interests over the Collateral at any time.
13.3 The Client agrees to do all things and sign all documents necessary to facilitate the registration and enforcement of the Security Interest.
13.4 The parties agree that these Terms are a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
13.5 Attachment of the Security Interest is immediate and, to the extent that the Security Interest relates to after-acquired personal property, the Security Interest attaches on the date that the Client has the power to transfer rights in the after-acquired personal property to Soda Strategic.
13.6 The Security Interest in the Collateral has the same priority in relation to all money owed by the Client to Soda Strategic and extends to all proceeds of the Collateral.
13.7 The Client waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
13.8 Soda Strategic has all powers granted to it by law to enforce the Security Interest, including all rights and powers of secured parties at common law and pursuant to the PPSA.
13.9 The Client agrees to pay all costs (including legal costs and disbursements on an indemnity basis) incurred by Soda Strategic in connection with the registration or enforcement of the Security Interest.
14. LIMITATION OF LIABILITY
14.1 The Client acknowledges that, save for the warranties and representations given by Soda Strategic in these Terms:
(a) Soda Strategic gives no warranty, condition, description, or representation in relation to the provision of Services outside these Terms; and
(b) all warranties, terms and conditions in relation to the quality, fitness of the services to be provided under this contract and of every other kind whether express or implied by use, statute or otherwise are, to the extent permitted by law, excluded.
14.2 Soda Strategic is not liable to the Client (or any third party) in contract or in tort or in any other way arising out of, or in connection with, or relating to:
(a) To the extent permitted by law, Soda the provision of Services under these Terms or any breach of these Terms; or
(b) any fact, matter or thing relating to the provision of the Services; or
(c) any error (whether negligent or in breach of contract or not) in information supplied to the Client or advice provided to the Client.
14.3 Soda Strategic’s liability for a breach of consumer guarantees under the Competition and Consumer Act 2010 (Cth) is limited to any one of the following:
(a) re-supplying the Services; or
(b) a refund of the amount paid by the Client to Soda Strategic,
and the remedy above will be chosen by Soda Strategic in its absolute discretion.
14.4 Soda Strategic is not liable to the Client (or any third party) for any consequential or indirect loss, economic loss or for any special or consequential damages, such loss or damage including but not limited to, losses or damage caused by delay, disruption, loss of product, loss of anticipated profit or revenue, loss of use of equipment or system, non-operation or increased expense of operation of other equipment or system.
15.1 All notices must be in writing, in English and given by one of the following means:
(a) by sending it by prepaid post to the address listed in the Quotation or Proposal;
(b) by email to the email address of the party listed in the Quotation or Proposal; or
(c) by delivering it personally to the party.
15.2 A notice will be deemed to be given and received:
(a) if sent by pre-paid post, three (3) Business Days after it has been posted;
(b) if sent by email during Business Hours, on the day it was sent; and if sent by email outside Business Hours, on the first Business Day after the day it was sent; and
(c) if delivered during Business Hours, on the day of delivery; and if delivered outside Business Hours, on the first Business Day after the day of delivery.
15.3 Any delivery or read receipt issued by a computer or email server to any party seeking to serve the other by email will constitute sufficient and good proof of service for the purposes of these Terms.
16.1 No Waiver
(a) Any delay or failure to enforce any provision of these Terms will not be deemed to be a waiver.
(b) There is no implied waiver by either party in respect of any provision of these Terms and any waiver granted by either party shall be without prejudice to any other rights.
(c) Any waiver must be in writing and does not cover subsequent breaches of the same or a different kind.
(d) A waiver by a party of its rights under these Terms is only effective in relation to the particular obligation or breach in respect of which it is given.
(a) The Client must not assign any of its rights under these Terms to any person without the prior written consent of Soda Strategic (which will not be unreasonably withheld).
(b) Soda Strategic may assign any of its rights under these Terms from time to time (and at any time) by notice in writing to the Client.
16.3 Governing Law
These Terms shall be governed by and construed in accordance with the laws of the Australian Capital Territory and the Commonwealth of Australia and the parties submit themselves to the exclusive jurisdiction of the Courts of those jurisdictions and those that have jurisdiction to hear any appeals from them.
16.4 Entire Agreement
These Terms and the Quotation or Proposal:
(a) are the entire agreement of the parties concerning everything connected with the subject matter of the Quotation or Proposal; and
(b) supersedes any prior representations, statements, promises or understanding on anything connected with that subject matter.
No variation to these Terms (including this clause) by any party is effective unless confirmed in writing and signed by the parties. A variation is effective only to the extent for which it is made or given.