BACKGROUND

  1. TDD offers the Marketing Services to businesses on an ad hoc basis.
  2. The Business wishes to engage TDD to provide the Marketing Services. 
  3. In exchange for payment of the Fee, TDD will provide the Marketing Services to the Business, subject to the terms and conditions contained in this Agreement.

OPERATIVE PART

  1. Definitions 
    1. The meanings of the terms used in this document are as follows:
  1. Agreement means this agreement, as validly varied from time to time;
  2. Claims means all demands, claims, proceedings, penalties, fines and liabilities (whether criminal or civil, in contract, tort or otherwise);
  3. Delivery Date means any date for delivery of the Marketing Services, as specified in Item 5 of the Reference Schedule in Schedule A;
  4. Fee means the fee specified in Item 2 of the Reference Schedule in Schedule A;
  5. GST means goods and services tax as defined in the GST Law;
  6. GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  7. Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
  8. Marketing Services means those services outlined in Item 4 of the Reference Schedule which may include, but are not limited to, digital marketing reviews and audits, preparation of marketing plans, creation of business profiles, features and promotions on the Site and general marketing strategy advice;
  9. Payment Date means each date for payment of all or part of the Fee, as specified in Item 3 of the Reference Schedule in Schedule A;
  10. Schedule A means the schedule attached to this Agreement, containing the Reference Schedule;
  11. Term means any applicable term as specified in Item 1 of the Reference Schedule in Schedule A; and
  12. Termination Date means the last day of the Term, unless terminated earlier by mutual agreement between the parties or in accordance with this Agreement.

  1. Provision of Marketing Services
    1. In consideration of the Business paying the Fee to TDD, TDD will provide the Marketing Services to the Business during any applicable Term or in accordance with any Delivery Date, subject to the terms of this Agreement.  
    2. The Business acknowledges that any Marketing Services offered to and utilised by the Business are not exclusive to the Business, unless expressly specified by TDD. 
    3. The Business also acknowledges that some or all of the Marketing Services may be discretionary and/or subjective in nature and these Marketing Services will be delivered by TDD in a manner which they reasonably deem appropriate, in their sole discretion. 
    4. TDD will use all reasonable endeavours to provide the Marketing Services to the Business, however, the Business acknowledges that in some circumstances, TDD may no longer be able to provide any or some of the Marketing Services in which case TDD will notify the Business and TDD will substitute Marketing Services which cannot be provided for services of an equivalent value (in TDD’s opinion, acting reasonably).
    5. If TDD is unable to substitute any of the Marketing Services in accordance with clause 2.4, the Business will be entitled to a refund for the value of any Marketing Services (as determined by TDD, acting reasonably), that have been paid for by the Business but have not been and will not be provided by TDD.  
    6. The Business must provide TDD with all reasonable information and documents required by TDD in order to provide the Marketing Services (the Business Information). The Business acknowledges and agrees that if the Business delays or fails to supply TDD with the Business Information, then TDD may be unable to provide the Marketing Services in accordance with any Delivery Date. TDD will not be liable for any delay or other issue in relation to the provision of the Marketing Services caused by the Business’s failure to comply with the obligations contained in this clause. 

  1. Fee
    1. In consideration of the Marketing Services provided in accordance with this Agreement, the Business will pay the Fee to TDD, in accordance with any applicable Payment Date or otherwise in the manner agreed between the parties from time to time.
    2. TDD will provide the Business with a tax invoice in accordance with the GST Law, if required to do so. 
    3. If the Business fails to comply with their obligations in clause 3.1, TDD may refuse to provide some or all of the Marketing Services to the Business. 

  1. Warranties
    1. Both parties warrant that they will comply (at their own cost) with all applicable laws and regulations in fulfilling their obligations under this Agreement.
    2. Nothing contained in this Agreement shall be construed by the Business as an express or implied warranty of a successful or measurable outcome as a result of TDD providing and/or the Business utilising any of the Marketing Services.

  1. Indemnity
    1. The Business indemnifies and holds TDD harmless from and against all Claims and Losses arising from loss, damage, liability, infringement of third party intellectual property, or third party losses, by reason of or arising out of or in relation to this Agreement whatsoever, except any Claim or Loss directly resulting from TDD’s negligence or breach of this Agreement. 

  1. Default and Termination
    1. If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
      1. the parties are immediately released from their obligations under this Agreement, except those obligations that, by their nature, survive termination;
      2. each party retains the claims it has against the other; and
      3. the Business must immediately pay all outstanding Fees (if any) to TDD without off-set (including any off-set for any alleged claim). 
    1. If this Agreement is terminated by any party for another party’s breach of an essential term, or repudiation of this Agreement, the party is entitled to utilise any remedy available to that party at law, as well as recover from the breaching party:
      1. their legal, accounting and other costs and disbursements which are reasonably incurred; and
      2. damages in respect of the loss or damage suffered by the party.

  1. Notices
    1. Any notice given under this Agreement must be in writing and signed by the party or their solicitor and delivered to the respective address for that party specified on page 1 of this Agreement or any other address more recently notified by one party to the other in writing. 

  1. Nature of Relationship
    1. 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.
    2. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

  1. Jurisdiction
    1. This Agreement will be governed by and constructed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of Queensland courts and any courts which have jurisdiction to hear appeals from any of those courts.

  1. No Assignment 
    1. No party to this Agreement may assign their rights or obligations under this Agreement without first obtaining the consent of all other parties, which may be withheld in the parties’ sole discretion.

  1. No waiver
    1. The failure of a party to require full or partial performance of a provision of this Agreement does not affect the right of that party to require performance subsequently.
    2. A right under this document may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver.

  1. Severability
    1. This Agreement will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
      1. that provision will, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
      2. if the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.