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Below is an detailed set of terms to make sure we work happily together. Once you’ve had a read, we’ll create a signed version along with a statement of work including project timelines and deliverables, and then get started.

Contractual Agreement

BETWEEN: PROWSE CONSULTING

AND: YOUR COMPANY NAME (the “Client”)

RECITALS:

A. Prowse Consulting is a full service marketing and advertising agency.

B. The Client wishes to appoint Prowse Consulting to provide certain services and deliverables to it and Prowse Consulting has agreed to accept such appointment on the terms and conditions set out below.

OPERATIVE PROVISIONS:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires:

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Sydney, New South Wales.

Claim means any claim, demand, proceeding (before any court or tribunal, including a regulatory proceeding), suit or action.

Commencement Date means the commencement date set out in Item 2 of the Schedule.

Confidential Information means:

(a) the terms and conditions of this Agreement;

(b) all discussions and negotiations concerning or related to this Agreement;

(i) all ideas, concepts and information concerning the business and affairs of that party or any of its Related Bodies Corporate whether in tangible form or not;

(ii) all financial or other business information of that party or any of its Related Bodies Corporate;

(iii) research and development information, financial data and information, business plans, marketing strategies and any other information about that party or any of its Related Bodies Corporate or services of that party or any of its Related Bodies Corporate;

(iv) the identity of existing or potential clients or customers of that party or any of its Related Bodies Corporate;

(v) information of any existing, former or potential clients or customers or contractors of that party or any of its Related Bodies Corporate that is expressed by that party to be “confidential”; and

(vi) all other information of that party or any of its Related Bodies Corporate which it discloses to the other party and which is confidential in nature, other than such information, which is generally available in the public domain, except where that is a result of disclosure in breach of this Agreement.

Initial Term means the initial term set out in Item 3 of the Schedule.

Related Body Corporate has the meaning provided in the Corporations Act 2001 (Cth) and Related Bodies Corporate has a corresponding meaning.

Services and Deliverables means the services and deliverables set out in Item 1 of the Schedule.

Term means the Initial Term and any extension to the term of this Agreement under clause 3.3 or 3.4.

1.2 In this Agreement, unless the context otherwise requires:

(a) headings are for convenience only and do not affect the interpretation of this Agreement;

(b) words importing the singular include the plural and vice versa;

(d) references to persons include references to corporations and other bodies and entities;

(e) references to statutes include all statutes amending, consolidating or replacing such statutes and includes any subordinated legislation issued under them;

(f) a reference to:

(i) anything (including any right) includes a part of that thing but nothing in this clause 1.2 implies that performance of part of an obligation constitutes performance of the obligation;

(ii) a document (including this Agreement) includes all variations, amendments or supplements to, or replacements or novation’s of, that document;

(iii) a party to a document includes that party’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;

(iv) a monetary amount is a reference to Australian dollars; and

(v) an obligation includes a warranty or representation, and a reference to a failure to perform an obligation includes a breach of warranty or representation;

(g) 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; and

(h) 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.

2. APPOINTMENT

2.1 The Client appoints Prowse Consulting to provide the Services and Deliverables during the Term on the terms and conditions set out in this Agreement.

2.2 Prowse Consulting accepts the appointment made under clause 2.1.

3. TERM

3.1 This Agreement commences on the Commencement Date for the Initial Term.

3.2 This Agreement shall end at the expiry of the Term, unless the parties agree otherwise in writing.

4. FEES AND PAYMENT TERMS

4.1 The Client agrees to pay Prowse Consulting;

(a) the fees set out in Item 4 of the Schedule in accordance with this Agreement;

(b) all reasonable out-of-pocket expenses incurred by Prowse Consulting in connection with the Client’s account including, but not limited to, delivery costs, express postage, courier fees, special delivery fees;

(d) a service fee equivalent to 7.5% of the cost of all media planning and buying completed by Prowse Consulting

(e) all inter-state, intra-state and international travel and associated expenses will be charged at cost.

4.2 If Item 5 of the Schedule indicates that a deposit is payable then the Client must pay such deposit by the Commencement Date.

4.3 Prowse Consulting must provide the Client with a valid tax invoice and may invoice the Client for the Services and Deliverables on a monthly basis or in accordance with any specific arrangements specified in Item 6 of the Schedule.

4.4 The Client must pay each invoice from Prowse Consulting within thirty (30) days of the date of the end of the month following the month of invoice, unless otherwise stipulated in this Agreement.

4.5 The Client agrees to raise any invoice queries with Prowse Consulting within seven (7) days of the date of receipt by the Client of the invoice.

4.6 The Client acknowledges and agrees that:

(a) Prowse Consulting may, at the request of the Client, place requests for media planning and buying with a media buyer, as agent for the Client;

(b) where Prowse Consulting places such a request as the Client’s agent, the media buyer may invoice the Client directly for the applicable costs and disbursements and the media buyer’s tax invoice must be addressed to the Client;

(d) Prowse Consulting is entitled to receive and keep for its benefit a rebate or commission the media buyer.

4.7 Prowse Consulting may suspend provision of any of the Services and Deliverables if any monies due under this Agreement or any other agreement with Prowse Consulting are outstanding.

4.8 The Client indemnifies Prowse Consulting from and against all costs and expenses, including without limitation, legal costs (on a solicitor and own client basis) in seeking the recovery of monies due from the Client to Prowse Consulting under or in connection with this Agreement or in connection with a breach by the Client of clause 4.6(c).

5. INDEMNITY

5.1 The Client indemnifies Prowse Consulting from and against any and all Claims and all damages, liabilities and costs (including, without limitation, settlement costs) and expenses associated with such Claims (including, without limitation, legal fees on a solicitor and own client basis) arising from any information or material supplied by the Client or from the Client’s products or services or from any act or thing done on the Client’s instructions.

6. APPROVALS AND AUTHORITY

6.1 Prowse Consulting must obtain the written approval of the Client (which may be by way of an email from the Client) to provide any services which are not specified in the Schedule.

6.2 Prowse Consulting may submit creative designs and other work to the Client from time to time during the term of this Agreement for the Client’s approval before finalising the same. The Client agrees to consider such designs and works and respond in a timely manner. The Client acknowledges and agrees that should the Client subsequently require a substantial change to the creative direction, emphasis or design after initial approval has been given by the Client then this will be at additional cost to the Client, calculated at Prowse Consulting’s then current standard rates.

7. AMENDMENTS

7.1 The Client may request Prowse Consulting to change, reject, cancel or stop any and all plans, schedules or work-in-progress and Prowse Consulting will take all steps to comply with such request provided that Prowse Consulting can do so within its contractual obligations to any third parties.

7.2 In the event of any cancellation or amendment under clause 7.1 the Client must pay for, and indemnifies Prowse Consulting from and against, all costs and expenses referrable to such cancellation or amendment. The Client must also pay Prowse Consulting’s fees in connection with such items.

7.3 Fees due to Prowse Consulting will not be reduced as a result of any of the circumstances arising under this clause 7.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Subject to clause 8.2, all materials and property including reports, recommendations, inventions, software, databases, systems, tools, designs, concepts, artwork, names, brands, logos, advertisements, images, layouts, proposals, storyboards, scripts, or works (‘Works’) specifically created by Prowse Consulting for the Client pursuant to this Agreement will vest in the Client following payment of all fees referable to the Works. Prowse Consulting agrees to assign to the Client all copyright, designs, inventions, trade marks and any other intellectual property in the Works upon payment of all fees relating to the creation of such Works.

8.2 Despite clause 8.1, the parties may agree on a case by case basis as to the terms of ownership of intellectual property in any specific Works but in the event of a failure to so agree, then clause 8.1 applies to any intellectual property.

8.3 In relation to any works that are created by third parties and already in existence (“Third Party Works”), Prowse Consulting will seek the prior written consent of the Client for the use of such Third Party Work and use its best endeavours to obtain from the owner an assignment of intellectual property to the Client, or if this is not possible, a licence to the Client to use the Third Party Work for such purposes. The Client is responsible for approving the terms for such assignment or licence of Third Party Work and must pay for the assignor or licensor’s costs (as the case may be). Prowse Consulting undertakes to obtain so far as is possible from the owner of any Third Party Work an undertaking in writing that it will not make use of same without the Client’s written authority.

8.4 Prowse Consulting may provide the Client with materials, property, software and systems owned by Prowse Consulting (“Pre-existing Works”) from time to time. The Client must take all reasonable steps to ensure their security and protection and to prevent any loss or damage and return these to Prowse Consulting on request or at the termination of this Agreement. The Client agrees that any intellectual property in such materials is owned by Prowse Consulting at all times and no ownership is vested in the Client at any time.

8.5 The intellectual property rights in all concepts and materials produced by Prowse Consulting and shown or provided to the Client but not approved by the Client for use in a campaign or not forming part of the Services and Deliverables remain vested in Prowse Consulting and must not be used by the Client.

8.6 The Client acknowledges and agrees that where Prowse Consulting has created a marketing plan and/or media buying plan which is for a period that extends beyond the date of termination or expiry of this Agreement (“Forward Schedule”), then Prowse Consulting retains the rights to the intellectual property in such Forward Schedule and the Client is not at liberty to make use of such intellectual property without Prowse Consulting’s prior written consent. Where this Agreement has been terminated or has expired and the Client seeks Prowse Consulting’s consent to make use of the Forward Schedule then Prowse Consulting agrees to provide such consent provided that the Client pays for the costs of preparation of the Forward Schedule on a time and materials basis as calculated by Prowse Consulting, acting reasonably, at its prevailing standard rates and notified to the Client. It is acknowledged and agreed that the payment of any monthly marketing retainer fee or monthly creative retainer fee by the Client during the term of this Agreement does not cover the costs of preparation of any Forward Schedule.

9. WARRANTIES

9.1 Each party warrants that that party has the right and ability to enter into this Agreement and will at all times hold all licences, consents, approvals and permits required under all applicable laws to carry out its obligations under this Agreement.

9.2 Each party which is a company represents and warrants to the other party that:

(a) that party is a company limited by shares incorporated, or taken to be incorporated, and existing under the Corporations Act 2001 (Cth) and has power and authority to carry on its business as it is now being conducted;

(b) that party has full power and authority to own its property and assets and to enter into and perform its obligations under this Agreement; and

(c) all things required by applicable law to be fulfilled or done in order to enable that party to lawfully to enter into, and exercise its rights and perform its obligations under this Agreement, have been fulfilled or done.

10. TERMINATION

10.1 A party may terminate this Agreement by notice in writing to the other party (with termination to have immediate effect) if:

(a) the other party breaches any provision of this Agreement and fails to rectify that breach or provide sufficient compensation for that breach within twenty (20) Business Days of written notice from the non-defaulting party (which notice must specify the breach and state that the breach is required to be remedied or compensated); or

(b) the other party enters into, or any steps are taken to have the other party enter into, liquidation, provisional liquidation, receivership, receivership and management, administration, bankruptcy or any arrangement, reconstruction or composition with the other party's creditors or any of them, or a controller is appointed with respect to any of the other party’s assets, the other party becomes unable to pay its debts to any person as they become due or the other party otherwise becomes insolvent.

10.2 Prowse Consulting may terminate this Agreement immediately by giving written notice to that effect to the Client:

(a) if the Client fails to pay an invoice of Prowse Consulting or a third party supplier engaged by Prowse Consulting on the Client’s behalf (including without limitation under clause 4.6) when such invoice falls due and fails to pay the amount owed in full within 7 days of the written request by Prowse Consulting; or

(b) if the Client refuses to provide Prowse Consulting with proper instructions required by Prowse Consulting in its reasonable opinion to discharge its obligations under this Agreement and such circumstance extends for a period of 7 days after Prowse Consulting requests that proper instructions be provided.

10.3 Upon termination of this Agreement, Prowse Consulting will transfer to the Client, all property and materials owned by the Client in Prowse Consulting’s possession or control provided that:

(a) Prowse Consulting will not be required to transfer to the Client property and materials for which the Client has not paid in full, or property and materials arising from any work undertaken by Prowse Consulting for projects which do not proceed for any reason; and

(b) Prowse Consulting is not required to provide to the Client electronic or digital copies of design or layered files.

10.4 Upon termination of this Agreement, Prowse Consulting will be at liberty to and is irrevocably authorised to cancel all forward reservations and bookings of time, space, talent and media and it is the Client’s responsibility to re-book any cancelled commitments with the relevant third party supplier. The Client indemnifies Prowse Consulting from and against all cancellation charges levied by third parties.

10.5 Termination of this Agreement is without prejudice to any remedies available to the party terminating and any rights or obligations of the parties that accrued prior to the time of termination.

11. CONFIDENTIALITY

11.1 A party must not disclose to any person any Confidential Information and that party must not make use of any Confidential Information:

(a) to gain directly or indirectly any improper advantage to that party or to any other person; or

(b) to injure or cause loss either intentionally or unintentionally, directly or indirectly to the other party, provided that a party may disclose such Confidential Information as may be necessary to a party's lawyers for the purpose of obtaining legal advice and to a party's officers and employees as permitted under this clause 11.

11.2 A party may disclose Confidential Information only to its officers and employees who:

(a) have a need to know (and only to the extent that each has a need to know); and

(b) have been directed and have agreed to keep such Confidential Information confidential.

11.3 Each party will:

(a) establish and maintain effective security measures to keep the Confidential Information secret and confidential including measures to prevent unauthorised access;

(b) immediately notify the other party of any suspected or actual unauthorised use, copy or disclosure of the Confidential Information; and

(c) provide assistance reasonably requested by the other party or any Related Body Corporate in relation to any proceedings they may make against any person for unauthorised use, copy or disclosure of the Confidential Information.

11.4 Nothing in this clause 11 will prevent a party from disclosing information that it is compelled to disclose by law.

11.5 This clause 11 survives termination of this Agreement.

12. FORCE MAJEURE

12.1 Neither party will be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is due to any cause beyond the reasonable control of the party.

12.2 As soon as a party becomes aware that the performance of its obligations may be affected by a cause beyond its reasonable control, that party must give the other party written notice of the circumstances, the anticipated delay and any conduct that the party can take to mitigate the affect of the circumstances.

12.3 If a delay or failure of a party to perform its obligations is due to a cause beyond the reasonable control of the party, the performance of that party’s obligations will be suspended.

12.4 If a delay or failure by a party to perform its obligations due to a cause beyond its reasonable control exceeds sixty (60) days from the date the obligation was required to be performed, either party may immediately terminate the Agreement on providing written notice to the other party.

13. GST

13.1 If any goods and services tax ("GST") is payable on any supply made by a party (the "supplier") to another party (the "recipient") under or in connection with this Agreement, then the recipient must pay to the supplier the amount of such GST (to the extent that it is not already specifically included) in addition to the consideration otherwise payable for the supply.

13.2 The supplier must provide the recipient with a tax invoice in such form as will permit the recipient to claim an input tax credit for the amount of such GST should it be so entitled.

13.3 If the recipient is obliged to reimburse or indemnify the supplier for any amount paid or payable by the supplier to a third party ("Third Party Payment"), then:

(a) the amount payable by the recipient shall be reduced by the amount of any input tax credit to which the supplier is entitled in relation to the Third Party Payment; and

(b) the recipient will only be obliged to pay any applicable GST on that reduced amount.

14. WARRANTIES AND LIMITATION OF LIABILITY

14.1 In this clause 14:

(a) “ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth); and

(b) “consumer” is as defined in the ACL and in determining if the Client is a consumer the determination is made if the Client is a consumer under this Agreement.

14.2 This Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Services and Deliverables or any contractual remedy for their failure.

14.3 If the Client is a consumer nothing in this Agreement restricts, limits or modifies the Client’s rights or remedies against Prowse Consulting for failure of a statutory guarantee under the ACL.

14.4 If the Client on-supplies the Services and Deliverables (or any part of them) to a consumer:

(a) if the Services and Deliverables are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Prowse Consulting’s liability to the Client;

(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of Prowse Consulting’s liability to the Client, howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the Services and Deliverables (or any part of them) by the Client or any third party.

14.5 Prowse Consulting is not liable for any indirect or consequential losses or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.

14.6 Subject to clause 14.7 Prowse Consulting limits its liability under or in connection with this Agreement (however arising, whether in contract, tort or otherwise) as its option, to one of the following:

(a) in the case of supply of goods:

(i) replacement of the relevant goods or the supply of equivalent goods;

(ii) the repair of the relevant goods;

(iii) the payment of the cost of replacing the relevant goods or acquiring equivalent goods; or

(iv) the payment of the cost of having the relevant goods repaired; and

(b) in the case of supply of services:

(i) supplying the relevant services again; or

(ii) the payment of the cost of having the relevant services supplied again.

(i) To the limit of the insurance policy held by Prowse Consulting which shall be no less than:

a. Public liability $20 million

14.7 Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

15. NON-SOLICITATION

15.1 Both parties agree not to directly approach any of the other parties’ staff with a view to those staff providing direct services to the first party, during the term of this Agreement and for a period of twelve (12) months thereafter.

16. DISPUTE RESOLUTION

16.1 If a dispute arises in connection with this Agreement which cannot be settled by the parties within fourteen (14) days, the parties must endeavour to settle the dispute by mediation held in Sydney (or in such other place as may be agreed by the parties by the parties in writing) before having recourse to litigation.

16.2 The parties must use their best endeavours to agree on a mediator but failing Agreement either party may request the Australian Commercial Disputes Centre to appoint a mediator and the mediator will be so appointed. The parties will bear equally the costs of any mediator appointed.

16.3 The parties agree that the mediator may conduct proceedings under this clause in such manner as the mediator considers is fit including, if appropriate, the adoption of all or part of the Guidelines for Commercial Mediation of the Australian Commercial Disputes Centre. During the course of the mediation each party must be represented by a person having authority to agree to resolution of the dispute.

16.4 If the dispute has not been settled within twenty-eight (28) days (or such other period as the parties may agree in writing) after the appointment of the mediator, the dispute may be submitted to a dispute resolution procedure specifically agreed to by the parties or, if not, to litigation.

16.5 Nothing in this clause 16 will prevent a party from seeking urgent interlocutory relief before an appropriate court.

17. NOTICES

17.1 Any notice to or by a party to this Agreement:

(a) must be in writing addressed to the other party or parties to this Agreement;

(b) may be delivered in person, by pre-paid post or by facsimile transmission; and

(i) if by delivery in person, when delivered to the addressee;

(ii) if by pre-paid post, on the third day after posting; and

(iii) if by facsimile transmission, when transmitted to the addressee (provided that a report from the sending machine confirms successful transmission), but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is deemed to be given on the succeeding Business Day.

18. GOVERNING LAW AND JURISDICTION

18.1 This Agreement is governed by the laws of New South Wales.

18.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Agreement.

18.3 Each party waives any right it has to object to an action being brought in the courts of New South Wales including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

19. COUNTERPARTS

19.1 This Agreement may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument.

20. NO WAIVER

20.1 A party may exercise its rights at any time and does not waive those even if that party:

(a) previously waived a breach or default of all or part of the same or other provision; or

(b) delayed or omitted to exercise its rights.

20.2 A waiver is only effective:

(a) if it is signed by the party granting the waiver; and

(b) to the extent set out in the waiver.

21. SEVERABILITY

21.1 If a provision (or part of it) is held to be unenforceable or invalid, then it must be interpreted as narrowly as necessary to allow it to be enforceable or valid.

21.2 If a provision (or part of it) is held to be unenforceable or invalid and cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then:

(a) the provision (or part of it) must be severed from this Agreement; and

(b) the remaining provisions (and remaining part of the provision) are valid and enforceable.

22. SUCCESSORS

22.1 This Agreement binds and benefits the parties and their respective legal personal representatives, successors and permitted assigns.

23. AMENDMENTS

23.1 An amendment or change to this Agreement is only effective once it is made in writing and executed by all parties.

24. FURTHER ASSURANCES

24.1 Each party must do whatever is necessary to give full effect to this Agreement. This may include executing a document or carrying out an act.

25. ASSIGNMENT

25.1 A party must not assign or otherwise transfer or attempt to assign any right or obligation under this Agreement without the prior written consent of the other party.

26. INDEMNITIES

26.1 The indemnities in this Agreement are continuing obligations, independent of any other obligations under this Agreement. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.

27. SURVIVAL

27.1 Each provision of this Agreement which by its nature is capable of surviving termination of this Agreement will survive termination of this Agreement.

28. ENTIRE AGREEMENT

28.1 This Agreement constitutes the entire agreement between the parties in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and replaced by this Agreement.

29. REFERENCE

29.1 The Client grants Prowse Consulting permission to reference the Client in promoting Prowse Consulting’s portfolio of work, including without limitation, on Prowse Consulting’s website.

29.2 The parties agree that nothing in clause 11 operates to restrict or limit Prowse Consulting from making full use of the permission granted by the Client under clause 29.1.

29.3 The Client’s permission continues following the termination or expiry of this Agreement but may be revoked at any time by the Client providing the Prowse Consulting with 10 days’ notice in writing.

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