Terms and Conditions
By using services provided by Firemark Promotions Pty Ltd ACN 131 522 864 as trustee for Firemark Promotions Unit Trust trading as Yoke (“Yoke”), you hereby agree to Yoke’s Terms and Conditions. Unless otherwise specified, in these Terms and Conditions, “we”, “us”, and “our” shall refer to Yoke. The usage of “you” and “your” shall refer to the customer or client of Yoke.
We reserve the right to amend these Terms and Conditions at any time.
1. Definition and Interpretation
Adjustment Note has the meaning given by the GST Law.
Commencement Date has the meaning stated in Clause 11.1.
Confidential Information means all statements, contracts or agreements, specifications, drawings, reports, documents, technology, knowledge, know-how and information relating to your business and any information relating to its advertising requirements (regardless of form) disclosed to or generated by us at any time either in contemplation of or otherwise in connection with these Terms and Conditions and either before or after the date of these Terms and Conditions. Reference to Confidential Information includes a reference to any parts of the Confidential Information.
Copyright includes copyright and rights of a like nature throughout the world (including any renewals and extensions of copyright where available).
Corporations Act means the Corporations Act 2001 (Cth).
Costs means the cost to you of us providing a Service or engaging a Supplier for the provision of a Service, including fees charged to us.
Early Termination Fee means a fee of 30% of the balance of the fee for the Services which at the date of early termination are incomplete which may be charged by Yoke at its sole discretion upon the early termination of these Terms and Conditions by you and is, a genuine pre-estimate of Yoke’s loss suffered as a result of such early termination.
Estimate means a quote for production of Services prepared by us in response to your request for provision of Services containing details of:
(a) the tasks comprised in the proposed Services;
(b) the Costs (itemised for each task) including all charges, taxes and other levies relating to supply of the Services; and
(c) a condition that by signing the Estimate, you also agree to these Terms and Conditions.
Facilities means working space, computer equipment, access to the internet and your computer network, telecommunications system etc., and shall include not only access to such resources but also use of them to the extent required by us in order to perform the Services.
GST has the meaning given by the GST Law.
GST Amount means in relation to a Taxable Supply the amount of GST payable in respect of that Taxable Supply.
GST Group has the meaning given by the GST Law.
GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Input Tax Credit has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a Party includes and Input Tax Credit for an acquisition made by that Party but to which another member of the same GST Group is entitled under the GST Law.
Intellectual Property Rights means Copyright and neighbouring rights, all rights conferred by statute, common law or equity in or in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, and confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but excludes any non-assignable moral rights and similar non-assignable rights of any person.
Law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, order, rule or subordinate legislation.
Margin Scheme has the meaning given by the GST Law.
Material means any material containing or relating in any way to any Confidential Information and includes all documents, notes, memoranda, reports, models, computer media, prototypes and other materials supplied to you by us.
Matter means any matter or other thing produced by, on behalf of, or at our direction, for your benefit, in the course of us providing the Services, but excludes Material.
Parties means the parties to these Terms and Conditions.
Permitted Purpose means the purpose of providing the Services to you in accordance with these Terms and Conditions.
Pre-existing Matter means any original literary, dramatic, musical and artistic works, sound recordings and cinematograph films, and any other Intellectual Property Rights, which were created (other than on your behalf) prior to the Commencement Date.
Project means the work to be carried out for you by us or on our behalf in accordance with these Terms and Conditions as described in the Estimate.
Services means the work to be carried out by us during the Term, and any other service directed by you from time to time as agreed in the Estimate.
Supplier means any third party which provides services to you or us in connection with or arising from these Terms and Conditions excluding any subcontractor engaged by us to provide the Services.
Taxable Supply has the meaning given by the GST Law excluding the reference to section 84-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and (except where expressly agreed otherwise) excluding a supply in respect of which the supplier chooses to apply the Margin Scheme in working out the amount of GST on that supply.
Tax Invoice has the meaning given by the GST Law.
Term means the period stated in Clause 11.1.
Terms and Conditions means these Terms and Conditions.
Third Party means our officers, employees, financial, legal advisers and subcontractors, to whom we may disclose the Confidential Information under Clause 6.3.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural, and the converse also applies.
(b) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(c) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(d) A reference to a clause is a reference to a clause of these Terms and Conditions.
(e) A reference to an agreement or document is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by these Terms and Conditions or that other agreement or document.
(f) A reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible and tangible form.
(g) A reference to a Party to these Terms and Conditions or another agreement or document includes the Party’s successors, permitted substitutes and permitted assigns and, where applicable, the Party’s legal personal representatives.
(h) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(i) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(j) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument or document of any kind.
(k) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.
(l) Nothing in these Terms and Conditions is to be interpreted against a Party solely on the ground that the Party put forward these Terms and Conditions or a relevant part of it.
2. Scope of these Terms and Conditions
2.1 Your rights not exclusive
Nothing in these Terms and Conditions limits our rights to provide Services to any other party.
2.2 Provision of Services
Subject to 2.3, these Terms and Conditions cover all Services requested by you from us during the Term.
2.3 Your Estimate
The Estimate forms part of these Terms and Conditions. In the event of any inconsistency between the Estimate and these Terms and Conditions, the Estimate shall prevail and have priority to the extent of that inconsistency.
2.4 Standard and Scope of Services
We will use our best endeavours to:
(a) provide the Services with all the skill, care and diligence to be expected from a qualified, competent and experienced provider of the services of a similar scope and complexity as the Services;
(b) ensure that the Services are carried out by our employees or agents who are properly trained, experienced and accredited to perform those Services;
(c) use our best endeavours to ensure Suppliers perform their obligations to us in connection with these Terms and Conditions, including preventing any loss you may incur through the failure of Suppliers to perform their obligations properly;
(d) act in your best interests in connection with these Terms and Conditions; and
(e) provide the Services in a timely and efficient manner, and meet all reasonable deadlines set by you.
3. Performance Obligations
3.1 Our Obligations
(a) We will deliver the Services in accordance with the approved Estimate.
(b) In providing the Services, we will disclose to you the terms of all agreements and arrangements with Suppliers or other agreements or arrangements entered into or in connection with or as a result of these Terms and Conditions.
3.2 Your Obligations
During the performance of the Services, you must:
(a) co-operate with us as we reasonably require;
(b) provide the information and documentation that we reasonably require;
(c) on request make available to us such Facilities as we reasonably require;
(d) ensure that your staff and agents co-operate with and assist us; and
(e) ensure that:
(i) the use by us or any person authorised by us of any Material will not infringe the rights (including Intellectual Property Rights) of any person or give rise to any obligation on our behalf (or any person authorised by us) to pay compensation or royalty to any person;
(ii) the information and Material provided by you to us are accurate and true;
(f) not charge for our use of the Facilities made available by you.
4.1 Payment obligations
Unless determined otherwise in accordance with these Terms and Conditions, you must pay us for the Services in accordance with the approved Estimate.
4.2 Terms of payment
All amounts due under these Terms and Conditions are payable by you within 14 days of receipt of an invoice unless agreed otherwise.
We will be entitled to charge interest on overdue payments at the rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic). Interest is to be calculated daily from the due date, continues until the overdue money is paid and is capitalized monthly.
4.4 Disputed invoices
If you dispute any amount stated on an invoice (Disputed Amount), you may request us to substantiate the expenditure of the Disputed Amount.
You will notify us of the Disputed Amount before payment is due.
5. Intellectual Property
5.1 Intellectual Property Rights
We own all Intellectual Property Rights existing or which may hereafter exist in any Matter subject to any third party licence agreements to which we are a party.
5.2 Assignment of intellectual property
(a) We will not assign to you any right, title and interest (including Copyright and other Intellectual Property Rights existing or which may hereafter exist in any Matter until all amounts due to us from you are paid in accordance with these Terms and Conditions. This means that we will have a lien over any service, products, data or information performed, created or obtained during the provision of the Services. If you have not paid the invoice(s) in full within 2 months from the date of the invoice(s) you agree that you will forfeit your rights.
(b) Once all amounts due to us from you are paid, cleared and received as funds you are assigned a non – exclusive perpetual right to use, as applicable, Services.
(c) The rights to fonts, photographs, graphics and any third party items such as source code supplied to support the Services, always remain the property of their respective owners. If you wish to obtain the ownership or license of any photographs, graphics and any third party items, then you must contact the respective owners directly. We will provide contact details on request.
(d) The Intellectual Property Rights in any Pre-Existing Matter do not vest in you and there is no assignment of the Intellectual Property Rights in any Pre-Existing Matter.
(e) You grant us an irrevocable non-exclusive and non-transferable license to use Matter in our promotional material including, but not limited to, the right to add a footer link to all websites created by us.
(f) You grant us an irrevocable non-exclusive and non-transferable licence to use Matter for the purpose of applying for and entering into industry awards.
Where any Pre-existing Matter is incorporated into the Matter,
(g) We will identify to you the Pre-existing Matter that has been incorporated into the Matter; and
(h) You acknowledge that, notwithstanding Clause 5.2, rights in Pre-existing Matter are not assigned by these Terms and Conditions.
6.1 Maintenance of confidentiality and use of Confidential Information
Except as permitted by these Terms and Conditions, or, in any other case, on receiving your prior consent, we will:
(a) hold the Confidential Information in strict confidence and keep it secret;
(b) not disclose any Confidential Information to any person, including any employee or officer of ours (or allow or assist or make it possible for any person to observe or have access to any Confidential Information);
(c) not use any Confidential Information except for the Permitted Purpose;
(d) not use any Confidential Information to the competitive disadvantage of yours;
(e) not reproduce or record, or permit or cause any reproduction or recording of, any Confidential Information except to the extent necessary to provide a reasonable number of copies to the Third Parties for the Permitted Purpose;
(f) not make, or permit or cause to be made, any notes or memoranda based on or relating to any Confidential Information other than for the Permitted Purpose; and
(g) not disclose, or permit or cause to be disclosed, any opinion, summary or analysis of any Confidential Information to any person unless:
(i) that person is a Third Party;
(ii) the requirements of Clause 6.3 concerning that Third Party are complied with; and
(iii) the opinion, summary or analysis is required to be disclosed to that Third Party solely for the Permitted Purpose.
6.2 Exclusions from certain obligations of confidence and restriction on use
Clause 6.1 does not apply to:
(a) information after it becomes generally available to the public other than because of a breach of these Terms and Conditions or of any obligation of confidence by us;
(b) the disclosure of information in order to comply with any applicable Law or legally binding order of any court, government, semi-government authority or administrative or judicial body or the applicable rules of any stock exchange; or
(c) information after we receive it from a third person legally entitled to possess the information and provide it to us, to the extent that if that information is used, disclosed or otherwise dealt with in accordance with the rights or permission lawfully granted to us by that third person.
6.3 Disclosure to third parties
We may disclose Confidential Information to a Third Party if the disclosure is necessary solely for the Permitted Purpose or required by the laws.
7. Conflicts of Interest
We are not required to notify you if we propose to provide any services to any third party in relation to the promotion or advertising of that third party’s activities or business which are in competition with your activities or business.
8. Assignment and subcontracting
You may not assign or transfer any of your rights or obligations under these Terms and Conditions without our prior written consent.
(a) Subject to paragraph (b), we may subcontract tasks.
(b) Notwithstanding paragraph (a),
(i) We may indicate in any Estimate the detail of any subcontracting to be undertaken for a Project and may not subcontract tasks other than in accordance with that detail (without prior written approval by you);
(ii) We are not responsible and liable for the acts and omissions of any subcontractor that is subcontracted in relation to these Terms and Conditions; and
(iii) You may be required to make any payment to any subcontractor for any Service provided by that subcontractor.
9.1 In this Clause words and expressions which are not defined in this contract but which have a defined meaning in the GST Law have the same meaning as in the GST Law; and
9.2 GST Law has the same meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time including any associated legislation, regulations, rulings, and determinations.
9.3 It is agreed that the unless expressly stated otherwise, all payments, reimbursements, consideration or other sums payable under this contract are exclusive of GST.
9.4 If GST is payable by a supplier on any taxable supply made under this contract, the recipient will pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as the payment, reimbursement, consideration or other sum is payable for the taxable supply.
9.5 The supplier must produce a tax invoice or adjustment note to the recipient of the taxable supply before the supplier is entitled to payment of the GST amount. Payment of the GST can be withheld until the tax invoice or adjustment note as necessary is provided.
9.6 If an adjustment event arises in respect of a taxable supply under this contract, the amount of the payment, reimbursement, consideration or other sum payable will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.
9.7 Where a recipient is required under this contract to pay or reimburse an expense or outgoing of the supplier, the amount to be paid or reimbursed by the recipient will be the sum of :
a. the amount of the payment, reimbursement, consideration or other sum payable less any input tax credit in respect of that expense or outgoing to which the supplier is entitled; and
b. if the payment, reimbursement, consideration or other sum payable is subject to GST, an amount equal to that GST.
9.8 This Clause 9 will continue to apply after expiration of these Terms and Conditions.
Upon the occurrence of default by you in compliance with these Terms and Conditions:
(a) We may at our sole and absolute discretion suspend the provision of Services, vary, cancel or terminate these Terms and Conditions without prejudice to our rights contained in these Terms and Conditions.
(b) Without prejudice to any other right or remedy you shall indemnify us against any costs, fees, charges and disbursements ‘(inclusive of any GST)’ charged by any legal advisors engaged for the purpose of the collection or recovery of monies due and payable by you to us on a full indemnity basis and all such costs shall be recoverable by us as a liquidated debt.
11. Term and Termination
The term of these Terms and Conditions commences on the date you sign the Estimate and shall continue until the Services have been completed and the payment obligations contained in Clause 4 of these Terms and Conditions are fully satisfied.
11.2 Termination by either Party
(a) Either Party may terminate these Terms and Conditions immediately by notice to the other Party if:
(i) the other Party commits a material breach of these Terms and Conditions which is incapable of being remedied or, if the breach is capable of being remedied, the other Party fails to remedy the breach within seven days after being required in writing to do so;
(ii) the other Party becomes insolvent, enters into an arrangement or composition with its creditors, is placed in receivership or under management or becomes subject to a winding-up order of a court.
(b) In the event these Terms and Conditions are terminated for any reason other than as set out in Clause 11.12(a), you must obtain our prior written consent which is subject to our sole discretion.
11.3 Our obligations in the event of Termination
We will, if reasonably requested by you, complete any Projects nominated by you which have already commenced and these Terms and Conditions will continue to apply to both Parties in relation to those Projects.
11.4 Your obligations in the event of Termination
11.5 Upon termination of these Terms and Conditions in accordance with this Clause, we are entitled to receive payment from you for Services provided up to the date of termination as reasonably agreed between you and us. For avoidance of doubt, your payment to us upon an event of termination will include the full costs, hours, resources, disbursements and other related costs in relation to the performance of the Services up to the date of early termination as notified by the terminating party in accordance with Clause 11.2 plus the Early Termination Fee. You acknowledge that the Early Termination Fee is a reasonable and genuine pre-estimate of our liquidated damages arising as a result of such early termination. Termination without prejudice
Termination of these Terms and Conditions does not affect any accrued rights or remedies of either Party.
12. Limitation of Liability, Release and Indemnity
12.1 Release and Indemnity
You indemnify us and each member of our staff or agents from and against any liability or claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by you to us in relation to the Services or any other matters;
(b) your breach of these Terms and Conditions;
(c) your negligence or wilful misconduct or any member of your staff or agents;
(d) us delivering the Services in accordance with your instructions; and
(e) you and any member of your staff or agents purporting to cancel any Estimate.
12.2 Limitation of Liability
(a) You acknowledge and agree that:
(i) Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising;
(ii) In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, including and without limitation to your forfeiture of rights contained in Clause 5.2 of these Terms and Conditions;
(iii) We have entered into these Terms and Conditions in our capacity as the trustee of the Trust and in no other capacity;
(iv) We are not liable to pay or satisfy any of its obligations under these Terms and Conditions, and have no liability to the other parties, except to the extent of our right of indemnity out of the assets of the Trust; and
(v) notwithstanding section 197 of the Corporations Act, if those assets are insufficient, the other parties may not seek to recover any shortfall by bringing proceedings against us or any director personally and may not seek the appointment of a liquidator, administrator, receiver or similar person to us or prove in any liquidation, administration or arrangement of or affecting us.
(b) Each other party waives its rights and releases us from any personal liability whatsoever in respect of any loss or damage which cannot be paid or satisfied out of the assets of the Trust.
(c) Notwithstanding any other provisions of these Terms and Conditions, our liability is limited by the provisions of Clauses 12.2(a) to (d) (inclusive). In the event of any inconsistency with any other provision of these Terms and Conditions, these clauses are paramount.
(d) For the purpose of this Clause 12.2:
“Trust” means the Firemark Promotions Pty Ltd ACN 131 522 864 as trustee for Firemark Promotions Unit Trust trading as Yoke.
13. Dispute Resolution
13.1 The Parties agree that, in the event of any dispute arising out of or in relation to these Terms and Conditions, both Parties must use their best endeavours to resolve the dispute within 14 days of one Party having notified the other of the existence of the dispute. In the event that a dispute between the Parties remains unresolved after 14 days and legal proceedings have not been issued by either Party in relation to the matters the subject of that dispute, the Parties may escalate the matter to senior management of both organisations.
13.2 In the event that the dispute remains unresolved within 3 weeks after the discussions between senior management and legal proceedings have not been issued by either Party in relation to the matters the subject of that dispute, the Parties may refer the matter to an independent person for mediation.
13.3 Mediation must be conducted in Melbourne and each Party is equally liable for the costs of mediation and each Party must pay for their own costs of attending the mediation.
13.4 Nothing contained in this Clause 12 must be read to limit the right of either Party to initiate legal proceedings at any time.
We may give any written notice to you in connection with, or as required by these Terms and Conditions, by sending the notice to you via email, post or fax or as indicated in the Estimate in any of these ways of notice is deemed to be effective. You must notify us in writing of any change to the address you have specified in the Estimate.
You may give any written notice to us to you in connection with, or as required by these Terms and Conditions, by sending the notice to:
42 Cambridge Street, Melbourne VIC 3066
14.2 No waiver
No failure to exercise nor delay in exercising any right, power, or remedy under these Terms and Conditions operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or future exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
14.3 No partnership
Nothing in these Terms and Conditions must be interpreted as constituting:
(a) the relationship of the Parties as a partnership, quasi-partnership, association or any other relationship in which one of the Parties may (except as specifically provided for in these Terms and Conditions) be liable generally for the acts or omissions of the other Party; or
(b) either Party as the agent or representative of the other Party.
14.4 No merger
The rights and obligations of the Parties will not merge on the completion of any transaction contemplated by these Terms and Conditions. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
14.5 Governing law and jurisdiction
These Terms and Conditions is governed by the Laws of Victoria. Each Party submits to the jurisdiction of courts exercising jurisdiction there, and waives any right to claim that those courts are an inconvenient forum.