Terms of Business
PALIN COMMUNICATIONS PTY LTD (ACN 602 614 693) of 4/815 Pacific Highway Chatswood in the State of New South Wales (PC), delivers PR, social media and content marketing services for health-focused businesses. These General Terms of Business(General Terms) apply to all Services provided by PC to its clients, to the exclusion of any purchase order, or any other document, submitted by the Client to PC. In consideration of the Client complying with these Terms, PC agrees to provide the Services to the Client.
1. The Services and the Term
1.1. PC will upon written acceptance of any request for proposal received from the Client, provide the Client with the requested services (Services).
1.2. The terms set out in any acceptance communicated by PC are valid for 30 days and subject to these General Terms. PC reserves the right to engage third party providers at its discretion to deliver the Services to the Client subject to these General Terms.
1.3. PC will not be liable to the Client for any failure to achieve the Client’s intended outcome of the Services, if PC has complied with instructions provided by the Client, provided that PC has provided the Services in accordance with these Terms.
1.4. The Agreement commences on the date that PC agrees in writing to provide the Services; and shall continue until the completion of the performance of the parties’ obligations; or the earlier lawful termination of the Agreement.
2. Financial Arrangements
2.1. The Client will pay the total fee specified by PC, as revised from time to time, in accordance with PC’s standard payment terms.
2.2. In addition to the fee quoted by PC, the Client will pay for expenses incurred by PC in connection with the provision of the Services including but not limited to couriers, printing, travel expenses including accommodation, purchase of third-party materials and services, photography, equipment rental, stock photography and third-party licensing fees (Disbursements).
2.3. The Client must pay each invoice from PC by the due date specified on the invoice. PC may charge the Client interest on overdue invoices at the rate of 1.5% per month calculated daily and recover all the reasonable expenses (including debt collection commission) and legal costs incurred by PC in the enforcement of the Client’s obligations and the recovery of monies due from the Client to PC. PC reserves the right to suspend work until all outstanding invoices are paid.
2.4. The Client may not deduct, reduce or withhold any payments due to PC under this Agreement by reason of claims or alleged claims against PC.
2.5. The Client must notify PC within 7 days of receipt, of any disputed amount in any PC invoice, including written reasons for the dispute. Otherwise the invoice will be deemed to have been accepted by the Client. Undisputed parts of all invoices must still be paid by the due date.
3. Changes to the Services
3.1. The Client agrees it will pay all additional fees for any changes to the Services requested by the Client which are outside the scope of the fees quoted by PC.
3.2. The Client agrees that if it requests PC to perform additional services for the Client; or changes or additions to the specifications provided by it to PC that require PC to revise the Services, and/or changes to the timetable for the delivery of the Services; then PC reserves the right to provide the Client with a revised quote including revised fees for approval by the Client prior to commencing work on the changes and/or additions.
3.3. If a revised quote is provided to the Client, PC will not commence work on the changes until the revised quote is accepted by the Client in writing and if necessary, will suspend work on the existing work until an agreement is reached between PC and the Client regarding the changes.
3.4. If a new agreement for Services is agreed between PC and the Client, any previous agreement will be superseded and replaced by the new quote and will not otherwise affect these General Terms which will remain in force.
3.5. If, in providing the Services to the Client PC has purchased third party materials, and/or PC has entered into agreements with third parties for the provision of materials or services and subsequent changes requested by Client results in those materials or services no longer being required, the Client will pay the cost, if any, of those materials and services purchased or the costs of cancellation, provided such costs were authorised by the Client in writing prior to being incurred, if any, of those third party services or materials, and such material and services shall become the property of the Client upon the payment by the Client.
4. Client Materials
4.1. The Client agrees to promptly respond to any reasonable request from PC for information, instructions, Approvals and/or materials to enable PC to perform the Services and further the Client acknowledges that any delay in complying with PC’s requests may result in a delay in the provision of the Services. PC will not be liable for any damage caused to the Client as a result of any such delay.
4.2. The Client agrees to provide PC with accurate information regarding its products, goods and services and to check all material prepared by PC for accuracy. PC shall be entitled to rely on such information and materials provided by the Client as being accurate.
5. Revisions and Approval
5.1. PC will offer the Client the opportunity to provide feedback to any draft or revision. PC may charge and the Client must pay for PC’s provision of additional Services at PC’s agreed hourly rate if the Client requires more reviews or revisions than was agreed in the estimate, quote or scope of works at the commencement of the Services.
5.2. PC will submit to the Client copy and layouts from time to time and may require the Client’s approval of those materials prior to continuing further work on the Services.
5.3. The Client’s written approval will be deemed authority given by the Client to PC to purchase production materials, prepare proofs and enter into contracts with third parties for the provision of Services.
6. Intellectual and other Property Rights
6.1. In this clause, “Rights” includes copyright, trademark, design, patent rights or any intellectual property rights by statute, in equity and by common law.
6.2. Provided the Client pays all fees, Disbursements and amounts payable under this Agreement relating to work created by PC, all Rights in material created by PC for the Client including ownership of tangible property and all Rights and all physical material purchased by PC for the Client shall belong to Client.
6.3. All Rights in third party photographs, artwork and materials remain the exclusive property of the original owners unless expressly assigned to PC or the Client. The costs of any assignment will be paid for by the Client upon the Client’s written request.
6.4. The Client agrees PC may use any general knowledge, skill and intelligence gained about the Client’s products, services or market gained in the course of providing the Services to the Client, excluding any Confidential Information belonging to the Client.
7. Suspension of Services and Termination
7.1. This Agreement may be terminated at any time by the Client for any reason upon the giving of 30 days written notice to PC, which will be effective immediately upon the other parties receipt of the notice or on a day as mutually agreed between the parties.
7.2. PC further reserves the right to immediately suspend the performance of the Services or to terminate this Agreement if the Client:
(a) becomes or threatens to become or is at risk of being subject to any insolvency administration, or
(b) is in breach of the terms of this Agreement, and fails to rectify it within 14 days of notification by PC; or
(c) does not make payment of an invoice issued by PC to the Client on or before the due date specified on the invoice and 30 days have elapsed since PC has given the Client written notice of such failure, or
7.3. In the event of suspension of the Services or termination of this Agreement by either party for any reason:
(a) PC will issue an invoice to the Client for all work performed and disbursements incurred for the provision of the Services prior to the suspension or termination, and
(b) the Client agrees it will pay PC the amount payable within 30 days of the date of the invoice, and
(c) the Services will not be resumed until such invoice is paid in full by the Client.
7.4. Where the Services are suspended for 30 or more days for any reason, PC reserves the right to issue revised fees for approval by the Client before provision of the Services is resumed.
7.5. If PC exercises its right to suspend or terminate this agreement pursuant to clause 7.2, PC will not be liable for any loss caused to the Client by the suspension or termination.
8. Warranties and Disclaimer of Warranties
8.1. The Client warrants to PC that it owns all of the right, title and interest in all materials it gives to PC to perform the Services including photographs, images, graphics, trademarks and writings and use of those materials does not infringe the rights of any third party.
8.2. Except for the express representation and warranty that PC shall provide the Services professionally and within a reasonable time, and the warranty in Clause 8.1, PC makes no warranties and explicitly disclaims any representation, warranty or guarantee of any kind whether express or implied.
9. Limitation of Liability
9.1 PC shall not be liable for any delay in the delivery of the Services or any omission, error or claim arising from the Services or any material prepared, provided or commissioned (or which ought to have been prepared, provided or commissioned) which is not due solely to PC’s negligence. In any event, the maximum aggregate extent of PC’s liability in respect of any claims or demands brought by the Client in connection with this Agreement shall be limited to a sum equal to the total fee paid to PC in respect of the service in relation to which the claim or demand is made.
10.2 PC shall not be liable to the Client for any act or omission to the extent that such act or omission arises from any event outside PC’s reasonable control. If PC is prevented from fulfilling its obligations under these Terms by reason of any event outside its reasonable control, it shall not be liable for any breach of contract. Furthermore, PC shall be entitled without any liability to the Client to extend the time or times for delivery of the Services or for performing its obligations under these Terms by a period at least equivalent to that during which such delivery or performance has been prevented by such event.
9.3 The Client acknowledges and agrees that PC is not responsible or liable for third party actions or omissions relating to the following:
(a) that any website or any page, blog, tool or other facility is error-free or virus-free;
(b) any changes in or the operations of any website, email service provider or third party platform;
(c) the failure to properly send or receive communications electronically,
(d) the contents of any website;
(e) any third party claim, action, demand or proceeding that the publication of content on a client’s website infringes a third party’s intellectual property rights.
10. Indemnities
10.1. The Client agrees to indemnify PC from all and any loss, claim, damage, liability, compensation, expense excluding consequential financial loss it may incur as a result of the acts and omissions of the Client under this Agreement; except to the extent that any loss, claim, damage, liability, compensation or expense is caused or contributed to by PC that is not authorised by this agreement.
10.2. PC agrees to indemnify the Client from all and any loss, claim, damage, liability, compensation or expense they may incur as a result of:
(a) the infringement by any of those indemnified of any third party intellectual property rights arising out of the use by those indemnified of the Services provided under this Agreement to them by PC;
(b) the acts and omissions of PC and its employees and agents in breach of its obligations under this Agreement
except to the extent that any loss, claim, damage, liability compensation or expense is caused or contributed to by the Client that is not authorised by this agreement.
11. Dispute resolution
11.1 The parties must endeavour to settle any dispute in connection with the Contract by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties, or failing agreement within seven (7) days of receiving any parties notice of dispute. It is a condition precedent of the right of either party to commence arbitration or litigation other than for interlocutory relief, that it has first offered to submit the dispute to mediation.
11.2 This clause does not limit a parties right to seek injunctive relief.
12. Confidential Information
12.1. In this clause, "Confidential Information" means all and any information concerning the business or finances of PC and the Client and including all recommendations, concepts and materials shown by PC to the Client which is already in the public domain, other than information which comes into the public domain as a result of a breach of these Terms.
12.2. The Client agrees it shall not at any time use or disclose without PC’s permission any Confidential Information relating to PC or its business or disclose the contents of or make any documents supplied by PC either in whole or in part, or use them for any purposes other than those for which they were handed over, or make any copies of such documents.
12.3. PC agrees it shall not at any time use or disclose without the Client’s permission any Confidential Information relating to the Client or its business or disclose the contents of or make any documents supplied by the Client to any third party, either in whole or in part, or use them for any purposes other than those for which they were handed over, or make any copies of such documents.
13. Non-Exclusivity
13.1. The Client acknowledges that this agreement does not create an exclusive relationship between the parties. PC may provide services to any other client including entities the Client may regard as competing in its market. PC acknowledges a duty to ensure that no Confidential Information of the Client is disclosed or supplied to any other party.
13.2. The Client must not use the name of PC in any manner that suggests PC endorses, or is associated with the Client’s business, products or services.
14. Force Majeure
14.1 “Force Majeure” means a circumstance beyond the reasonable control of a party which results in the party being unable to observe or perform on time an obligation under this Agreement
14.2 PC will not be liable for any delay or failure to perform its obligations under a Statement of Work or this Agreement if that delay is due to Force Majeure.
14.3 If a delay or failure of PC to perform its obligations is caused or anticipated due to Force Majeure the performance of PCs obligations will be suspended.
14.4 If a delay or failure by PC to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate this Agreement on providing notice in writing to the other party, in which even PC will not be deemed to have breached this Agreement.
14.5 If this Agreement is terminated pursuant to clause 14.3, PC will refund monies previously paid by the customer under this Agreement for its services which were not provided due to Force Majeure.
15. Restrictive Covenant
15.1. The Client agrees that it will not endeavour to entice away from PC any employee of PC who has worked on the Services for a period of two years after the completion of the Services.
15.2. The Client agrees that it will not endeavour to deal directly with any third-party supplier of PC which has provided any Goods or Services to PC for use by the Client.
16. No Reliance or Representations
16.1 The Client warrants that it has not relied on any representation made by PC which has not be stated expressly in this Agreement, or relied upon any descriptions, illustrations or specifications contained in any document including websites or publicity material produced or provided by PC.
16.2 The Client acknowledges that to the extent PC has made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
17. General Provisions
17.1. These General Terms together with the fees and specifications of Services agreed by the parties represent the entire agreement and understanding between PC and the Client (and therefore supersede any previous agreement or arrangements).
17.2. If a provision in this Agreement is unenforceable, illegal or void then it is severed without affecting the other provisions of these Terms and the rest of the Terms will remain in full force.
17.3. The non-enforcement by either party of any breach of these General Terms shall not prevent their subsequent enforcement and shall not be deemed to be a waiver of any subsequent breach.
17.4. Any notice, request or communication to be given under these General Terms must be in writing and delivered as follows:
(a) hand delivered, or
(b) transmitted electronically to the email address of the party as advised from time to time, or
(c) sent by post to the registered office of the other party.
17.5. These General Terms shall be governed by and construed in accordance with the laws of New South Wales and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.