Terms and Conditions of

Whitespace Marketing Pty Ltd (ACN 127 597 504) of Po Box 499, Bribie Island, Queensland, 4507 .

BACKGROUND

The Client wishes to receive branding, content and marketing services (Services).

Whitespace has the skills, background and experience to provide branding, content and marketing services.

Whitespace is willing to provide the Services and the Client is willing to appoint Whitespace to provide the Services, all in accordance with the provisions of this agreement.

OPERATIVE PROVISIONS

1 Definitions and interpretation

In this agreement unless the context indicates otherwise, the following words have the following meanings.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Commencement Date has the meaning set out in the schedule to this agreement.

Confidential Information includes any information received by the receiving party during the term of this agreement, which is not publicly available and relates to any staff, agents or clients of the disclosing party or any processes, equipment and techniques used in the course of business of the disclosing party. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data, models, articles, reports and materials; marketing information such as customer lists, financial information and business plans; sales materials, including but not limited to all quality management methods, pricing methods, sales methods and customers’ materials; all the intellectual property rights (including those exclusively owned by either party, whether owned now or developed in the future); and any other information that either party claims as confidential.

Date of Expiry means the date the agreement ends, as set out in the schedule to this agreement.

Deliverables means any tangible outputs included in the Specification, such as articles, video content, photographs, presentations, power point slides or reports.

Fees means the amount to be paid by the Client to Whitespace under this agreement, as set out in the schedule to this agreement.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Moral Rights means rights of integrity, rights of attribution and rights of an analogous nature which may now exist and which may exist in the future in respect of the licensed property under the Copyright Act 1968 (Cth) or under the law of a country other than Australia.

Parties means Whitespace and the Client, and Party means either one of them.

Payment Terms means when and how the Fees are to be paid by the Client to Whitespace under this agreement as set out in the schedule to this agreement.

Personnel means Pheobe Wright, Scott Wright or any other officers, employees or agents of Whitespace that Whitespace designates to perform the Services on Whitespace’s behalf.

Services means the services to be provided by Whitespace under this agreement.

Specification means the details of the Services to be provided under this agreement, as set out in the schedule to this agreement.

Term means the duration of this agreement, beginning on the Commencement Date and ending on the Date of Expiry of this agreement.

Termination Date means the earlier of:

the date of termination of this agreement by the Client or Whitespace; and the Date of Expiry of this agreement.

2 Services

In consideration for the Client paying the Fee to Whitespace, Whitespace will provide the Services as set out in the Specification.

Any additional work carried out outside of the scope of the Specification will incur an additional charge. This additional charge will be quoted by Whitespace for approval before commencing the additional work.

The Services will be performed by whichever Personnel Whitespace may choose as most appropriate to carry out the Services from time to time.

3 Time and place

Whitespace and the Client will agree on mutually convenient timing and location for the performance of the Services, subject to the availability of Whitespace’s Personnel.

Whitespace will provide any Deliverables outlined in the Specification in person or via video call, email, Google Drive or other online content sharing platform, express post, or other means suitable to the format of the Deliverable and mutually agreed upon between the Parties.

The Client should provide all information, documentation and instructions in writing via email to [email protected], or any alternative email address provided to the Client by Whitespace from time to time.

The Client acknowledges and agrees that Whitespace will respond to email communication sent by the Client in accordance with this agreement within 3 business days.

4 Fees

Payment of Fees
In consideration of the provision of the Services in accordance with this agreement, the Client will pay Whitespace the Fees in accordance with the Payment Terms.

The Client acknowledges that the Fees are exclusive of any GST that may be charged by Whitespace to the Client, and therefore, Whitespace may be entitled to add on GST.

Invoicing
Whitespace will provide the Client with Tax Invoices in accordance with the Payment Terms.

Payment will be made by the Client to Whitespace within 7 days after receiving any Tax Invoice.

If the Client elects to pay by credit card or by direct debit, the Client acknowledges and agrees that Whitespace will debit the credit card or nominated direct debit account for the amount of a Tax Invoice within 7 days of the date of the invoice.

If the Client elects to pay by Stripe, Paypal or other online payment platform, the Client acknowledges and agrees that it is also bound by the terms and conditions of use of that payment platform.

When making a payment, the Client must quote relevant reference numbers and the invoice number for the relevant Tax Invoice.

A Tax invoice referred to in 2(b) must include the following details before payment can be approved and forwarded:
date of Services;

• description of Services provided; and
• the ABN of Whitespace.

Variation of Fees
Whitespace is entitled to vary the Fees and Payment Terms during the term of this agreement with written notice to the Client of 14 days prior to the change being implemented.

Costs and expenses
The Client acknowledges and agrees that it is responsible for:

• payment of all advertising costs for radio and digital and warrants that it will pay all such costs directly to the supplier in accordance with the payment terms of the supplier;

• payment of all Google Ads and Facebook advertising costs and warrants that it will pay all such costs directly to Google and/or Facebook (as applicable) through client’s own account.

• Whitespace is permitted to charge for all costs and expenses incurred by it in performing the Services, including travelling, photocopying, courier services, postage and internet.

Failure to pay
If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, Whitespace is entitled to do any or all of the following, without limitation to its other rights and remedies:

• charge interest on the outstanding amount at the rate of 5% per year, accruing daily;
• require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;
• change any code, key, login or password provided to the Client or any officer, employee or agent of the Client;
• suspend the Client’s access to the content and materials via Google Drive or other online content sharing platform;
• not perform any further services (or any part of the Services);
• terminate the agreement; and
• add the cost of any debt collection fees to the invoiced amount.

Refunds
The Client acknowledges and agrees that, subject to the Australian Consumer Laws, Whitespace does not provide any refunds.

5 Client’s obligations

During the Term, the Client will, and where applicable will ensure that any of its staff and agents:

• co-operate with Whitespace, and timely provide any information, documentation and instructions, as Whitespace reasonably requires to perform the Services;
• provide any written approvals required by Whitespace at key points throughout the project prior to continuing to the next stage (and the Client acknowledges and agrees that it will be deemed to have provided approval in the event that it fails to provide written approval within 14 days);
• have and maintain a subscription to any third party software as agreed between the Parties;
• have and maintain a Facebook account and Instagram account;
• where Whitespace provides the Client with any code, key, login or password:
• keep the code, key, login or password confidential;
• dvise Whitespace immediately if that code, key, login or password is updated; and
• advise Whitespace immediately of any security breach.

6 No partnership, joint venture, agency or employment relationship

Nothing in this agreement constitutes the relationship of employer and employee between the Client and Whitespace or between the Client and Whitespace’s Personnel.

This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.

Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
It is the express intention of the Parties that any such relationships are denied.

7 Disclosure and ownership of intellectual property

Whitespace acknowledges that the Client (or its associated entities or persons) owns all pre-existing Intellectual Property of the Client.
The Client acknowledges that:

Whitespace (or its associated entities or persons) owns all pre-existing Intellectual Property of Whitespace; and
The Client will own any new Intellectual Property created by Whitespace, in connection with the Services, that now exists or that later comes into existence.

The parties will not infringe each other’s Intellectual Property rights.

Whitespace grants the Client a perpetual, worldwide, royalty free, fee free, non-exclusive, transferrable, sub-licensable license to use all pre-existing Intellectual Property of Whitespace, in the Deliverables.

To be clear, the license granted under clause 7(d) does not include any work in progress, such as any footage or other draft materials that were created in connection with this agreement but not comprised in the Deliverables.

The Client acknowledges and agrees that Whitespace may:

• use the name and likeness of the Client and any part of the Deliverables for the advertising and promotion of Whitespace; and
• use any part of the Intellectual Property in the Deliverables for the future business activities of Whitespace (including as part of the Deliverables for other clients of Whitespace, which the Client acknowledges and agrees may be competitors of the Client),
• without compensation to the Client.

Whitespace will ensure that all Personnel consent to any breach of their Moral Rights and waive the rights sue for breach of their Moral Rights by the Client through use of the Deliverables in accordance with clause 7(d).

Each party agrees to indemnify each other fully against all liabilities, costs and expenses which the other party may incur as a result of any breach of this clause 7.

The obligations accepted by the parties under this clause 7 survive termination or expiry of this agreement.

8 Confidentiality

Subject to clause 8(c), each party agrees to keep the other party’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

The Client and Whitespace acknowledge that information resulting from the activities of Whitespace pursuant to this agreement will also be regarded as Confidential Information. The parties agree that their obligations in clause 8(a) extend to this category of information.

The Client agrees that the Whitespace may, from time to time, share testimonials and results achieved as a result of the Services for marketing purposes. The Client can request that personal and brand information be omitted from case studies and testimonials.

The parties’ obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the disclosing party.

At the Termination Date, or when earlier directed by the disclosing party:

• all Confidential Information must be returned to the disclosing party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the receiving party makes and any software that the receiving party creates based on the Confidential Information; and
• the receiving party will erase and destroy any copies of any software containing or comprising the Confidential Information in its possession or under its control or that may have been loaded onto a computer in its possession or under its control.

The Confidential Information does not include information which:
• is generally available in the public domain otherwise than as a result of a breach of clause 8(a) by the receiving party; or
• was known by the receiving party prior to the disclosing party disclosing the information to the receiving party.

Each party agrees that other party may require any of its staff of agents to sign a confidentiality agreement.

Each party agrees to indemnify the other party fully against all liabilities, costs and expenses which that other party may incur as a result of any breach of this clause 8.

Each party acknowledges that damages may be an inadequate remedy for breach of this clause 8 and that the other party may obtain injunctive relief against any breach of this clause 8.

The obligations accepted by the parties under this clause 8 survive termination or expiry of this agreement.

9 Warranties, liability and indemnities

Warranties
Whitespace warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry, sector or profession in which Whitespace operates for the type of Services provided by Whitespace.

If Whitespace performs the Services (or any part of the Services) negligently or materially in breach of this agreement, then, if requested by the Client, Whitespace will re-perform the relevant part of the Services, subject to paragraphs 3(a) and 9.3(b) below.

The Client’s request referred to in paragraph 1(b) must be made within 1 month of the date Whitespace performed the Services (or that part of the Services) that Whitespace is to re-perform.

Whitespace makes no warranty that the Deliverables do not breach any third party Intellectual Property rights.

Whitespace provides no warranty that any result or objective can or will be achieved or attained at all or by any date, whether stated in this agreement, the Schedule, the Specification or elsewhere.

The Client understands and agrees that use of any Deliverables is at its own risk.

The Client warrants that it will:

• not rely on any legal or financial information or advice provided by Whitespace; and
• seek independent legal and financial advice from a qualified accountant, financial advisor or other relevant financial professional as to the freedom to use and suitability of use of any Deliverables provided by Whitespace.

The Client acknowledges and agrees that it is the Client’s sole responsibility to obtain, prior to commencing any use, legal advice regarding whether any Deliverables are free for use and financial or other professional advice regarding whether any Deliverables are likely to achieve the desired outcome for the Client.

Limitation on liability
Except in the case of death or personal injury caused by Whitespace’s negligence, the liability of Whitespace under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Client to Whitespace under this agreement.

Whitespace is not liable to the Client for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client relating to any allegation of copyright infringement.

Whitespace is not liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

Whitespace is not liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client caused by any third party suppliers (including but not limited to Facebook, Instagram and any third party software as may be required in accordance with clause 5(a)(iii)), or a breakdown in any tools or equipment of Whitespace or its contractors.

Indemnity
The Client must indemnify and hold Whitespace harmless from and against all Claims and Losses arising from loss, damage, liability, injury to Whitespace, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any content, information, documentation or instructions supplied by the Client to Whitespace or its Personnel or use of any Deliverables by the Client.

Survival of obligations
The obligations accepted by Whitespace and the Client under this clause 9 survive termination or expiry of this agreement.

Each party acknowledges that damages may be an inadequate remedy for breach of this clause 8 and that the other party may obtain injunctive relief against any breach of this clause 8.

The obligations accepted by the parties under this clause 8 survive termination or expiry of this agreement.

10 Disputes

If a dispute arises, before any proceeding is commenced the party claiming that a dispute has arisen must give 14 days notice to the other party setting out the dispute and seeking discussion and compromise to resolve the dispute.

If after 14 days the dispute is not resolved then it must be referred to mediation on the same terms as those ordered by the Supreme Court of Queensland and the costs of the mediation shall be borne by the parties equally.

Notwithstanding the preceding provisions of this clause, Whitespace must continue to provide the Services, the Client must continue to pay the Fees, and both parties must continue to perform their obligations under this agreement pending resolution of the dispute.

Nothing in this clause will prevent either party from seeking urgent interlocutory relief.

11 Termination

Either Party may terminate this agreement by written notice to the other if the Party notified:

• fails to observe any term of this agreement; and
• fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 30 days’ of written notice of the breach being given by the notifying Party to the other Party.

Either Party may terminate this agreement upon the happening of any of the following events:
• if the Client enters into a deed of arrangement or an order is made for it to be wound up;
• if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
• if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

The Client may, at its discretion, pay to Whitespace the equivalent amount of the fees payable by the Client to Whitespace during the notice period in lieu of any notice period relating to termination of this agreement under paragraph 10(a)(i).

Upon termination of this agreement any fees, expenses or reimbursements payable by the Client to Whitespace in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.

Notice may be provided for the purposes of this agreement by:

• Personal hand delivery to the recipient; or
• Postal to the address of the recipient (noting that it will be treated as having been received on the second business day after posting); or
Sending an email to the recipient’s nominated email address (noting that it will be treated as received when it enters the recipient’s information system).

12 General

Force majeure
Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.

The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.

Amendment
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.

Assignment
Subject to paragraph 3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.

Entire agreement
This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

Counterparts
This agreement may be executed electronically, in any number of counterparts which together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.

Waiver
No failure or delay by Whitespace in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

Further assurance
Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

Severance
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

Law and jurisdiction
This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.

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