The following terms and conditions are the usual terms of engagement of Step Change Communications Pty Ltd ACN 139 605 459, trading as Step Change Marketing (“Step Change”). Except where agreed in writing, these terms apply to all Services undertaken by Step Change and its agents. These terms shall prevail where inconsistency exists between these terms and any other documentation.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions (a) Agreement means the Commercial Terms Document, these terms and conditions, and all schedules and annexures to this Agreement, as amended by Step Change in accordance with clause 22.5. (b) Business Day means a day that is not a Saturday, Sunday or a public holiday or bank holiday in Sydney, Australia. (c) Client means a person or company to whom the Services will be provided to by Step Change (d) Client Contact means the contact person nominated by the Client in the Commercial Terms Document to provide Step Change with instructions in accordance with these terms and conditions. (e) Commencement Date means the commencement date specified in the Commercial Terms Document. (f) Commercial Terms Document means any Project Plan, Fee Proposal and/or Fees Estimate or any document signed by Step Change and the Client which sets out the commercial terms applicable to this Agreement. (g) Date Variation Fee means an additional fee charged in accordance with Clause 8.3 being – 1 week prior to the scheduled date: 50% of fees charged; 2 weeks prior: 25% of fees charged; 3 weeks prior: 15% of fees charged, 4 weeks prior: 10% of fees charged. Earlier than that, a flat rate of $2,000.00 plus GST will be charged. (h) Event of Insolvency means: (i) If the Client is an individual, an application for the bankruptcy of the Client is presented and the Client cannot within ten (10) business days reasonably satisfy Step Change that the application is frivolous or vexatious; (ii) If the Client is a corporation: (A) the Client ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so; (B) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the Client or any of its assets; (C) the Client enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors; (D) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the Client; (E) the making by the Client of an assignment or attempted assignment for the benefit of its creditors; and/or (F) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or (iii) the Client suspends payment of its debts generally. (i) Expiry Date means the Expiry Date of the Term specified in the Commercial Terms Document. (j) Fees means the fees payable for the Services as specified in the Commercial Terms Document. (k) Force Majeure means any event, the occurrence of which is outside the control of a party including, without limitation, any act of government (including the imposition of variation of any law, rule, order, ordinance or regulation), accident, fire, insurrection, war, act of God, natural disaster, sabotage, strike or industrial action, embargo or delay in transportation attributable to third party carriers or customs authorities. (l) GST has the meaning given in the GST Act. (m) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth). (n) Interest Rate means eight percent (8%) per annum. (o) Intensive means any workshop that is longer than three (3) hours in duration. (p) No Result, No Invoice Policy means that within 24 hours of the conclusion of the Intensive the Client present on the day may provide written notice to Step Change to allege that the objectives set and agreed by the parties at the commencement of the Intensive have not been met (clause 8.6). If Step Change receives written notice from the client stating that the objectives have not been met then Step Change will endeavor to do what it takes to meet those objectives. However if Step Change subsequently agrees and confirms that it is unable to resolve or meet those objectives then Step Change will agree to refund the deposit paid by the Client and no further invoice for the Fees will be issued to the Client. (q) Rate Card means the Step Change Rate Card which forms part of the Commercial Terms Document. (r) Services means the Services to be provided by Step Change to the Client as specified in the Commercial Terms Document. (s) Step Change means Step Change Communications Pty Ltd ACN 139 605 459, trading as Step Change Marketing. (t) Term means the Term of this Agreement as specified in the Commercial Terms Document.
1.2 Interpretation (a) headings are for convenience only and do not affect the interpretation of this agreement; (b) reference to the singular includes the plural and vice versa; (c) reference to any gender includes the other genders; (d) reference to a person includes a corporation and vice versa; (e) reference to a party includes that party’s executors, administrators, successors and permitted assigns; (f) every obligation entered into by two or more parties binds them jointly and each of them severally; (g) a reference to a schedule is to a schedule to this agreement; a reference to a part, clause or other subclause is a reference to a part, clause or other subclause in this agreement; (h) any document referred to in this agreement will mean that document as well as any other document in substitution for that document which has been approved in writing by the parties; (i) where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning; (j) the words “includes” and “including” or words of similar effect are not words of limitation; (k) any annexures and appendices form part of this agreement; and (l) a reference to a statute, regulation or other law includes all regulations and instruments made under such law and all consolidations, amendments, re-enactments or replacements of it.
Step Change agrees to provide to the Client the Services in accordance with these terms and conditions.
3. ACCEPTANCE AND COMMENCEMENT OF WORK
3.1 Subject to clause 3.2, written approval and/or request by the Client to commence work will be deemed to be an acceptance by the Client of these terms and conditions.
3.2 The Client acknowledges that Step Change will not commence providing Services until any deposit specified in the Commercial Terms Document has been paid.
3.3 The Client agrees to provide all required information and documentation (including a signed proposal or quote) required by Step Change. The Client indemnifies Step Change from any damages costs or expenses resulting from any delays in the provision of the Services due to the failure of the Client or the Client agent to provide the required information and documentation on time.
4. CLIENT CONTACT
4.1 The Client warrants to Step Change that the Client Contact: (a) has full authority from the Client to sign for and accept all work and deliverables; (b) is the single point of contact for all inquiries and requests in respect of the provision of the Services; and (c) will deliver consolidated feedback representing the interests and intentions of the Client in a form acceptable to Step Change.
5. CLIENT’S OBLIGATION TO PROVIDE INFORMATION
The Client or its agent must provide Step Change with all required information for the provision of the Services, including all documentation, relevant briefs, artwork, electronic resources, written acceptance of proposal, any background information and any information that will impact on the Services. The Client indemnifies Step Change against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees in connection with the information provided by the Client.
6. DESIGN, ARTWORK AND MATERIALS
6.1 All design, artwork and materials included in the Services will be presented by Step Change to the Client Contact.
6.2 The Client acknowledges that the Fees allow for the Client to make only two (2) requests for revision and/or provide feedback in respect of such design, artwork and materials. Such requests of feedback must be provided in writing in the Consolidated Feedback Form in the form set out in Schedule 1.
6.3 Feedback and requested changes must fall within the agreed scope of work.
6.4 Additional changes to artwork, design, materials, formatting or copy beyond the two included requests will be charged according to the Rate Card.
6.5 A minimum engagement rate of 1 hour will be charged for any additional design, artwork and material changes requested by the Client.
7.1 The Client grants Step Change a fee free, non-exclusive license to use: (a) materials supplied by the Client; and (b) the Client’s trademarks, graphics and copyrighted material as supplied, as necessary to enable Step Change to provide the Services.
7.2 The Client grants Step Change a fee free, non-exclusive license to use materials created throughout the Term of this Agreement for the ongoing promotion of Step Change’s services.
7.3 The Client warrants that all materials and any instructions supplied to Step Change pursuant to this Agreement will not infringe the intellectual property rights of nor result in any tort, injury, damage or harm to any third party.
8. FEES AND PAYMENT
8.1 The Client will pay to Step Change the Fees and any other payments due under this Agreement in accordance with the Commercial Terms Document and otherwise within 14 days of the date of Step Change issuing the Client with a tax invoice for the same.
8.2 The Client acknowledges that: (a) the Fees set out in the Commercial Terms Document are estimated costs for the Services and are provided in good faith. The Fees set out in the Commercial Terms Document are not guaranteed by Step Change and the final Fees may vary due to adjustments by the actual costs incurred in respect to the Services. (b) all estimates of Fees are valid for 30 days from the date of the Commercial Terms Document and must be approved and accepted by the Client within this time. Step Change reserves the right to withdraw the estimates of Fees after the expiry of this 30 day period and to re-issue amended estimates of Fees.
8.3 Date Variation Fee The Client acknowledges that: (a) Once the quote has been accepted by the Client by payment of a 50% deposit to Step Change, and the workshop date(s) have been confirmed, then the Date Variation Fee will be payable by the Client should the Client request for a date change for any reason. Step Change reserves the right to refuse to re-allocate new dates until this Date Variation Fee has been paid.
8.4 Disbursements The Client agrees to pay to Step Change the following additional costs: (a) Any travel expenses (including flights, accommodation, meals, taxis, and the consultant’s time spent in transit) incurred by Step Change to travel to the Client. For domestic travel, the additional costs are charged at $1,000 plus GST per person for a single night and $500 plus GST per person for each additional night. For international travel, actual travel costs will be recharged to the client. These will be scoped and agreed with the Client prior to travel taking place. Step Change will endeavor to arrive the night before a workshop/Intensive to avoid delays caused by travel. (b) Any venue costs incurred by Step Change if the Client requires a workshop to be held in a different venue other than the Client’s or Step Change’s office. (c) Any third-party costs incurred on behalf of the Client including but not limited to engaging third party suppliers. Step Change will invoice the Client for such third parties costs as it is incurred. In the event that any payment by the Client under this clause (c) is overdue for more than 30 days, Step Change reserves the right to postpone all Services until the outstanding payments are made. (d) Any licensing costs incurred on behalf of the Client as part of providing the Services to the Client. Step Change will invoice the Client for any licensing costs incurred on a monthly basis. (e) Administration costs calculated at 2.2% of Step Change’s invoice will be charged in addition to the Fees. (f) Any banking fees or charges if the Client chooses to pay Step Change’s invoice via credit card or EFTPOS. No fees will be charged for bank deposit/transfer.
8.5 Invoicing (a) Intensives: Step Change will invoice the Client in two parts: 50% deposit to book (must be paid prior to the Intensive) and 50% due 7 days after the Intensive(s). Intensives are generally run four weeks after the booking is made. (b) All Other Services Step Change will invoice all other Services as per billing terms and conditions as outlined in the Client’s Commercial Terms Document.
8.6 No Result, No Invoice (a) Subject to clause 8.6(b), Step Change agrees to apply its No Result, No Invoice Policy to strategy projects only. If the No Result, No Invoice Policy is applied then Step Change will retain all the work produced in the course of that strategy project. (b) The Client must give written notice to Step Change of any disagreement or dissatisfaction with the meeting of the Intensive objectives within 24 hours of the conclusion of the Intensives. If no written notice is provided by the Client prior to the expiration of the 24 hour period then the Client will be deemed to have accepted that the objectives have been met and agrees to waive all rights under this clause 8.6.
9.1 The terms used in this cause are as defined in the GST Act.
9.2 Unless otherwise expressly stated, all Fees or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
9.3 If GST is payable on any Supply, the payer must, upon receipt of a valid Tax Invoice pay to the Supplier an amount equal to the GST payable in respect of the consideration payable for that Supply.
10. THIRD PARTY EXPENSES
The Client acknowledges that:
10.1 Step Change may need to incur third party costs for such items as digital retouching, illustration, photography and printing in order to provide the Services, which will be payable by the Client.
10.2 Wherever possible, Step Change will attempt to identify any anticipated third party expenses in the Project Plan but instances may arise where additional third party expenses may be incurred.
10.3 Any third party costs must be paid to Step Change seven (7) business days before they are due to suppliers to ensure the project runs on time.
10.4 Third party costs and estimates are issued according to the terms and conditions of such third parties. Step Change makes no guarantee in respect of any third party costs or estimates.
10.5 The Client Contact must approve or request reissue of third party supplier expenses within the time specified by Step Change.
11. OVERDUE PAYMENTS
11.1 In the event of any failure by the Client to make Payments in accordance with this Agreement, such late payments will accrue interest at the Interest Rate per calendar month from and including the payment due date.
11.2 The Client will be responsible for all reasonable expenses (including legal fees) incurred by Step Change in collecting overdue amounts.
11.3 In the event that any Payment due by the Client in accordance with this Agreement is overdue for more than 30 days by the Client, Step Change reserves the right to postpone all Services until the outstanding payments is made and provide a revised estimate of any time-lines and/or deadlines.
12.1 Either Party may terminate this Agreement: (a) Immediately if the other Party commits a material breach or persistently breaches the Agreement provided that, in the case of a breach which is capable of remedy, the defaulting Party has failed to cure within thirty (30) days of being served with written notice of the breach; or (b) Immediately by written notice to the other party if there is an Event of Insolvency in relation to the other Party. (c) Immediately by written notice to the other party if there is a period of ninety (90) days in which there has been no communication by either party to the other party. (d) Client may terminate this Agreement at any time without cause by providing Step Change at least ninety (90) days prior written notice subject to the payment of any outstanding Fees in accordance with clause 12.2.
12.2 In the event of termination, the Client will pay to Step Change within 14 days of demand any Fees outstanding as at the date of the termination and any further payments due to Step Change as at the date of termination, including but not limited to: (a) Any Fees incurred but not yet charged for the Services; (b) Any costs or expenses incurred by Step Change as part of the Services which are payable to a supplier or other third party. (c) Step Change’s staff costs, to be reconciled by hours spent on the project and charged according to hourly costs indicated on the Rate Card. (d) Step Change staff costs for hours allocated to the Project for the period of fourteen (14) days after the date of termination. This reflects that the hours are not available for other clients and represents lost income. (e) The value of any third party contracts entered into for the purpose of completing the project. (f) All expenses incurred by Step Change in ceasing to provide the services.
12.3 Notwithstanding clause 12.2 above, Step Change reserves the right to charge the Client 50% of the total estimated amount if less than 50% of the job has been completed.
12.4 All the provisions of this Agreement, which are expressly or impliedly intended to have effect at or after the expiry or termination of this Agreement, shall survive such expiry or termination, and the parties shall perform their respective obligations under such provisions.
12.5 If the Client commits a material breach of this Agreement, Step Change shall be entitled to retain any information and documentation.
12.6 In the event of termination of this Agreement, those provisions providing for use of Client name, ownership of materials and copyright infringement, insurance, exclusivity, indemnity, releases, inspection, and confidentiality shall survive as noted or as applicable to this Agreement. Upon termination of this Agreement, Step Change shall transfer, assign and make available to Client all property and materials in Step Change Marketing’s control belonging to and paid for by the Client.
13. INTELLECTUAL PROPERTY
All intellectual property documentation including proposals, strategy, reports, scopes, electronic copies and information in connection with or arising from the Services are the property of Step Change, until such time as the final invoice has been paid in full. On full payment by the Client Step Change grants to the Client a non-exclusive, non-transferable, royalty free, perpetual licence to use the intellectual property documentation for the client’s internal business purposes only. The Client must not use the intellectual property documentation for any other purposes without the written consent of Step Change. Step Change places copyright on all such documentation. All Services provided by Step Change must be received by the Client in the strictest of confidence.
14. NO POACHING
The Client undertakes that itself and any of its related businesses, successors or assignees will not for a period of twenty-four (24) months from the termination of this Agreement entice away or endeavor to entice away any of Step Change’s employees. The Client acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Step Change. The Client will pay Step Change $50,000 plus GST per employee hired by the Client in breach of this covenant, this being agreed by the parties as liquidated damages incurred by Step Change for a breach of this clause. This clause will survive termination of this Agreement.
15. WARRANTIES BY CLIENT
The Client warrants that:
15.1 it has the authority to enter into this Agreement.
15.2 in entering into this Agreement, it has not relied on any representation made by Step Change, which has not been stated expressly in this Agreement.
15.3 All information provided to Step Change in connection to the services is accurate, correct and true.
16.1 The Client agrees to indemnify and hold Step Change and (as applicable) its related entities, affiliates, and their and Step Change’s respective officers, directors, agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees: (a) suffered by Step Change as a result of any breach of this Agreement by the Client; and/or (b) made by any third party due to or arising out of the Client’s breach of this Agreement or the Client’s breach of any law or the rights of a third party (including but not limited to intellectual property rights), or in respect of or in connection with the Services.
16.2 This clause will survive termination of this Agreement.
17. LIMITATION OF LIABILITY
17.1 Step Change (a) No representations or warranties Except as required under the Australian Consumer Law, Step Change makes no representations and gives no warranties expressly or implied as to the suitability of the Services.
(b) Excluded Types of Damages In no event will Step Change or its respective employees, contractors or suppliers have any liability to the Client for any incidental, special, statutory, indirect or consequential damages, or for any loss of profits, revenue, data or cost of cover.
(c) Aggregate Liability The liability of either party for any claim arising out of or in connection with any Services provided under this Agreement will not exceed an amount equal to the amount of the Fees payable for the Services most directly related to the claim. The total aggregate liability of either party for each and all claims arising out of or in connection with this Agreement will not exceed the lesser of: (i) an amount equal to the aggregate total amount of all Fees paid or payable under the Agreement in the twelve (12) month period immediately preceding the date of the event giving rise to the claim; or (ii) $100AUD. These limitations of aggregate liability will not apply to contractual indemnification obligations provided in this Agreement.
17.2 Limitation of Liability for Representatives The limitations of liability in this clause 17 will also apply to any liability of directors, officers, employees, agents and suppliers, who will be third party beneficiaries of this contractual limitation of liability and will be entitled to enforce this limitation directly against the other party.
17.3 Survival This clause will survive termination.
18. PROJECT TIME-LINES
18.1 The Client acknowledges that any time-lines and/or deadlines specified in the Commercial Terms Document are an estimate only based on supplier indications and previous project experience and are subject to change.
18.2 In the event that a project is put on hold for more than 30 days by the Client, or if no correspondence is received from the Client after reasonable follow-up for 30 days, Step Change reserves the right to provide a revised estimate of any time-lines and/or deadlines.
19. ONGOING SUPPORT
19.1 Any additional Services required by the Client in addition to the Services specified in the Commercial Terms Document are deemed additional work.
19.2 Step Change will provide upon request by the Client an estimate of Fees for any additional work required by the Client.
19.3 If Step Change is required to complete additional work above and beyond what is specified in the Commercial Terms Document, then the Client must provide in writing within reasonable time, confirmation of a variation order, Work will not commence until agreement of price for relevant additional work has been made. Step Change reserves the right to deny any additional work.
20. DISPUTE RESOLUTION
20.1 If a dispute arises out of or relates to these Terms and Conditions or the breach, termination, validity or subject matter thereof, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”).
20.2 The mediation shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation operating at the time the dispute is referred to ACDC. The terms of the Guidelines are hereby deemed incorporated into these Terms and Conditions.
20.3 In the event that the dispute has not settled within twenty-eight (28) days after appointment of the mediator, or such other period as agreed to in writing between the parties, the dispute shall be submitted to expert determination in Sydney administered by ACDC conducted in accordance with the ACDC Rules for Expert Determination operating at the time the dispute is referred to ACDC. The terms of the Rules are hereby deemed incorporated into these Terms and Conditions.
20.4 The expert shall not be the same person as the mediator.
20.5 In the event that the dispute has not settled after appointment of the expert, either party may commence legal proceedings.
20.6 This clause shall survive termination of these Terms and Conditions.
22.1 Governing law This Agreement is governed by the laws of New South Wales. Each of the parties irrevocably submits to the jurisdiction of the courts of New South Wales.
22.2 Assignment (a) Rights arising out of or under this agreement are not assignable by one party without the prior written consent of the other parties. (b) A party will not unreasonably withhold its consent to assignment. (c) A purported assignment without written consent will be deemed to be void and convey no rights.
22.3 Severance If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.
22.4 Entire agreement This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
22.5 Variation The Client agrees that Step Change may amend or vary these terms and conditions at any time by giving notice to the Client. If Step Change makes any amendment or variation to these terms and conditions, then that amendment or variation will take effect from the date on which Step Change displays such on its website. Notice is deemed given when Step Change does any of the following: (a) sends notice of the amendment to the Client at any address (including an email address) supplied by the Client; or (b) publishes the amended terms on its website www.hellostepchange.com/terms; or (c) displays the amended terms at premises from which Step Change conducts its business.
22.6 Waiver (a) No right under this agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right. (b) A waiver by one party under clause 22.6(a) does not prejudice its rights in respect of any subsequent breach of this agreement by the other party. (c) A party does not waive its rights under this agreement because it grants an extension or forbearance to the other party.
22.7 Relationship of the parties The agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
22.8 Further steps Each party will do all things and execute all further documents necessary to give full effect to this agreement.
22.9 Counterparts This agreement may be executed in any number of counterparts.
22.10 Survival (a) The terms of this agreement survive its termination to the extent permitted by law. (b) This agreement shall be binding upon the heirs, executors, administrators and successors in title of the parties.
22.11 Currency All payments due to Step Change shall be paid in Australian dollars in Australia.
22.12 Force Majeure If a performance by a party of any obligation under this Agreement (other than the payment of money) is prevented, restricted or delayed by Force Majeure then that party shall be excused from and shall not be liable for failure in performance to the extent of that prevention, restriction or delay and the time for performance shall be extended accordingly.