Terms and Conditions

Updated: 16 March 2021

These terms and conditions must be read together with your Statement of Work and Media Plan (if applicable), which together form the Agreement between you (being the client specified in the Statement of Work) and Marion’s Kitchen Australia Pty Ltd ACN 146 483 490 (we, us, our). Each of you and us are referred to below individually as a party and together the parties.

NO OTHER TERMS – The Agreement is the entire agreement of the parties on its subject matter. The only enforceable rights and obligations of the parties in relation to the subject matter of the Agreement are those that arise out of the provisions contained in the Agreement, and:

(a) all representations, communications and prior agreements in relation to the subject matter of this Agreement are merged in and superseded by the Agreement; and

(b) if you provide us with any form of purchase order or other terms and conditions before or after the date of this Agreement in respect of the subject matter of the Agreement, the parties will not be bound to comply with any of the provisions set out in, or associated with, that purchase order or other terms and conditions.

1. Project

1.1 Deliverables and Services

In consideration for the payment by you of the Fees in accordance with clause 4, we will provide the Deliverables and perform the Services, and/or make available the Brand Materials in accordance with, and subject to any limitations set out in, the Statement of Work.

1.2 Control over content and media channels
(a) Unless expressly stated otherwise in the Statement of Work:

(i) the concepts, formats and contents of the Deliverables are indicative only;

(ii) we will make any material changes in good faith consultation with you, but

(iii) we have the right to determine, at our sole discretion, the final concepts, formats and contents of all Deliverables.

(b) Unless expressly stated otherwise in the Statement of Work or the Media Plan:

(i) we will determine the media channels or platforms on which the Deliverables will be published, distributed or made available in good faith consultation with you, but

(ii) we have the right to determine, at our sole discretion, the final selection of such media channels or platforms.

1.3 Exclusivity and endorsement

(a) Nothing in this Agreement amounts to a grant of exclusivity to you over any product category, in relation to content creation, endorsements, brand licensing or otherwise, except as expressly provided for in the Statement of Work in respect of the category, and for the term, specified therein.

(b) Nothing in this Agreement amounts to an agreement by us or Marion Grasby to endorse any product or service provided or nominated by you, except as expressly provided for in the Statement of Work on the terms and conditions specified therein. You agree not to represent to any person that we or any of our affiliated persons including Marion Grasby endorses such product or service unless the endorsement is specifically provided for in the Statement of Work.

1.4 Third-party platforms

You acknowledge and agree that:

(a) whether or not expressly set out in the Statement of Work, the provision of any Deliverables and the performance of any Services by us, including but not limited to publication of Deliverables and Project reporting:

(i) may involve the use of third-party services or platforms (including without limitation Facebook, Instagram, YouTube, Twitter, TikTok) (Third-Party Services); and

(ii) which utilises Third-Party Services will be subject to the applicable third-party terms and conditions;

(b) we are not liable for any failure to provide any Deliverables or perform any Services as a result of any restrictions of use or access to such Third-Party Services that are imposed on us or you or any other person; and

(c) any additional costs and expenses arising from the use of or access to such Third-Party Services to provide any Deliverables or perform any of the Services will be payable by you and will be invoiced to you in accordance with clause 4.4.

1.5 Time

(a) Time is not of the essence in respect of the provision of the Deliverables and the performance of the Services

(b) If the Statement of Work and/or the Media Plan specifies a timeframe for the provision of the Deliverables and/or the performance of the Services, then we will use our best endeavours to provide the Deliverables and perform the Services within that timeframe, provided that in the event of any delay:

(i) upon being notified by you in writing of any non-compliance with the relevant timeframe we will have a reasonable period of time to provide the relevant Deliverable(s) and/or perform the relevant Service(s); and

(ii) no further action may be taken by you under this Agreement (including without limitation terminating the Agreement and/or making a claim for damages) until the expiry of such reasonable period of

(c) If the Statement of Work and/or the Media Plan does not specify a timeframe for the provision of the Deliverables and/or the performance of the Services, then such Deliverables must be provided, and such Services must be performed, within a reasonable period of time.

(d) Where you become aware of a matter which may change or delay the provision of the Deliverables and/or the performance of the Services, you must advise us in writing as soon as practicable after you become aware of the matter.

2. Intellectual Property

2.1 Ownership

We retain full ownership of any Intellectual Property in the Deliverables, Services and Brand Materials.

2.2 IP Licence

(a) If the Services or the Deliverables include any of the following:

(i) that we will deliver any Media Content to you for publication by you or for dissemination to third parties (Distributable Media Content); or

(ii) that you may use any Brand Materials or any Media Content to endorse or promote one or more goods or services (Promotional Materials);

then:

(iii) we grant to you a licence (IP Licence) to use the Intellectual Property in that Distributable Media Content and Promotional Materials on the terms set out in clause 2(c); and

(iv) the IP Licence is strictly limited to that Distributable Media Content and Promotional Materials.

(b) For the avoidance of doubt, you acknowledge and agree that if the Services or the Deliverables do not include any Distributable Media Content and Promotional Materials, then you do not have any licence or rights to use any of the Intellectual Property in any of the Deliverables, Services, Media Content or Brand Materials.

(c) Any IP Licence granted to you in accordance with clause 2.2(a) is subject to the following terms and conditions, except as may be expressly specified otherwise in the Statement of Work:

(i) the Distributable Media Content and Promotional Materials must be used strictly in the manner and solely for the purposes set out in the Statement of Work;

(ii) the IP Licence is granted on a non-exclusive and royalty-free basis;

(iii) the IP Licence is granted on a non-transferrable and non-sublicensable basis, which means that any publication or promotion of the Distributable Media Content or Promotional Materials must be done by you on platforms owned or controlled by you (which will include any social media account or website controlled by you);

(iv) the IP Licence is granted on a worldwide basis for a period of 6 months commencing on the Commencement Date set out in the Statement of Work;

(v) we are entitled to immediately revoke the IP Licence by notice to you in writing if:

(A) you have not paid the Fees on time and in full in accordance the Agreement and with instructions on our invoices;

(B) you have not complied with the terms of the IP Licence as set out in this clause 2.2 or the terms of the Statement of Work, whichever is applicable, in all material respects;

(D) you take any action or inaction which, in connection with your continued use of the Intellectual Property under the IP Licence, has had the effect of, or which we reasonably consider is likely to have the effect of, damaging the reputation or goodwill of us, our Brand Materials or Marion Grasby.

2.3 Expiry of term of IP Licence

(a) Upon the expiry of the term of the IP Licence as set out above in clause 2(a)(iii) or in the Statement of Work, whichever is applicable, or termination of the Agreement, you must immediately cease using the Intellectual Property under the IP Licence and cease using the Deliverables, Services, Media Content and Brand Materials and any other materials containing such Intellectual Property, and destroy or return to us any such materials at our election as soon as reasonably practicable.

(b) In order to give effect to your obligations set out in clause 2.3(a) above, if you fail to comply with clause 2.3(a) for a period of time that is equal to or less than the term of the IP Licence (Additional Period), then without limiting any other remedy available to us, you must pay to us and we may invoice you an amount equal to the total amount of Fees set out in the Statement of Work (Default Fee) in respect of each Additional You agree further that:

(i) the Default Fee for each Additional Period will be invoiced and paid in accordance with clause 4; and

(ii) the Default Fee for each Additional Period is fair and reasonable, and represents a reasonable and genuine pre-estimate by the parties of the loss and costs expected to be suffered or incurred by us as a result of any failure by you to comply with your obligations under clause 3(a) above.

3. Client Materials

3.1 Provision of Client Materials

(a) You must provide to us, at your own expense and in accordance with any reasonable request we may make, all necessary Client Materials in accordance with any process described in the Statement of Work and otherwise with sufficient time to ensure we can punctually provide the Deliverables and perform the Services.

(b) If you delay the supply of Client Materials necessary for the provision of the Deliverables and the performance of the Services, as contemplated in the Statement of Work, we may elect to do one of the following:

(i) give you a reasonable opportunity to correct the failure and you accept that our obligation to provide the Deliverables and perform the Services will be reduced pro-rata to your delay;

(ii) where the Client Materials include a product to be featured in a Deliverable and the delay in supplying that product has lasted for more than 90 days, notify you in writing that the Deliverables are deemed to be provided and the Services are deemed to be performed, and the Fees will then become due for payment by you; or

(iii) where the Client Materials include a prize for a competition and the winner does not receive the prize within a reasonable time of the closing date of the competition, we will provide the winner with the prize as described in the competition terms and conditions or equivalent and will invoice you any costs so incurred to be paid in accordance with clause 4.

(c) We are under no obligation to accept any Client Materials delivered late and will charge you for any extra expenses or costs we incur as a result of the delay.

3.2 Rights and liability relating to Client Materials

(a) We will not be liable for any loss or damage to the Client Materials.

(b) If the Statement of Work does not specify that the Client Materials will be returned to you, then you acknowledge and agree that all right, title and interest in the Client Materials (excluding any Intellectual Property contained in the Client Materials) have been irrevocably transferred to us.

(i) we will only return the Client Materials, to the extent not exhausted, damaged or lost in the course of providing the Deliverables or performing the Services, at your request and at your expense; and

(ii) we may keep or destroy the Client Materials at our sole discretion if no such request is received within a reasonable time (which in any event shall not exceed 3 months) following completion of the Project.

(d) By providing the Client Materials, you automatically grant us a licence free of charge to use all Intellectual Property in the Client Materials to the extent necessary for the purposes of providing the Deliverables, performing the Services and the continuing use of the Client Materials as contemplated by this clause 3.2.

4. Payment Terms

4.1 We will invoice you and you will pay to us the Fees in accordance with this clause 4.

4.2 We will invoice you for the Fees in accordance with the agreed timing for payment of the Fees set out in the Statement of Work and payment is due within 14 days of each invoice date and otherwise in accordance with the instructions contained in the invoice;

4.3 If the Statement of Work does not specify any agreed timing for payment of the Fees, then we will invoice you for the total amount of the Fees on signing of the Statement of Work and payment is due within 14 days of the invoice date and otherwise in accordance with the instructions contained in the invoice.

4.4 Refund and set-off

(a) Except as expressly stated otherwise in the Statement of Work, all amounts paid by you are non-refundable.

(b) You may not claim any rights of set-off in respect of any invoices.

4.5 You are responsible for payment by us of any third party costs or disbursements incurred in relation to the Project and agree that:

(a) we reserve the right to confirm receipt of cleared funds in our account for any cost or disbursement prior to us making a commitment on your behalf to a third party; and

(b) you will otherwise reimburse us for these costs or expenses in addition to the Fees, and otherwise on the same terms as described in this clause 4.

4.6 In addition to any other rights we may have under this Agreement or otherwise, if you fail to make any payment on the due date specified in the invoice we may, without prejudice to any other rights we may exercise, do any or all of the following by written notice to you:

(a) suspend or cease delivery of any of the Deliverables and performance of any of the Services;

(b) suspend the IP Licence; and

(c) charge interest on any outstanding amount you owe under this Agreement at a rate of 6% per annum above the base interest rate set by the Australian Reserve Bank and accruing daily, and you agree that this interest rate is a reasonable pre-estimate of loss suffered by us as a result of your late payment.

5. Postponement or cancellation

5.1 Without limiting clauses 2 and 5.3, the parties may agree in writing to postpone or cancel the Project or any part of it. To avoid doubt, we may consider, but are under no obligation to accept, any request from you to postpone the Project or any part of it.

5.2 We have the right to postpone the Project or any part of it for a reasonable period of time if and to the extent our performance is affected by any of the following events:

(a) sickness of Marion Grasby; and

(b) other events affecting our ability to perform our obligations and which are beyond our control.

5.3 You may cancel the Project by written notice (Cancellation Notice) to us within the periods set out below and subject to the following conditions:

(a) If we receive your Cancellation Notice within 30 days of the date of the Statement of Work and no later than 30 days before the earliest delivery date for any of the Deliverables (Cancellation Period), we will refund 50% of the Fees already paid to us.

(b) If we receive the Cancellation Notice outside the Cancellation Period, we will not refund any part of the Fees, and you agree and acknowledge that in consideration of the performance of our obligations under the Agreement we fully entitled to the entire amount of the Fees. If any part of the Fees has not been paid, such part of the Fees becomes payable on the date of the Cancellation Notice and we will invoice you for, and you must pay, those Fees within 14 days of the date of the Cancellation Notice.

(i) you have given us a Cancellation Notice;

(ii) we have performed some or all of the Services or provided some or all of the Deliverables (Part Performance); and

(iii) the amount of Fees that correspond to the Part Performance pursuant to a Statement of Work (which may be all of the Fees) exceeds the amount retained by us under clause 3(a) (if any) (Unpaid Fees);

then we will invoice you for, and you must pay to us within 14 days of the Cancellation Notice, the full amount of the Unpaid Fees.

5.4 After you give us a Cancellation Notice, we are immediately released and discharged from any further obligations to perform the Services or provide the Deliverables.

6. Warranties, indemnities and liability

6.1 Warranties

(a) You warrant that:

(i) you have the power and authority to enter into this Agreement and to perform your obligations under this Agreement;

(ii) our use of the Client Materials will not infringe any third party rights and will not be illegal or actionable for any reason; and

(iii) the Client Materials are fit for purpose and do not contain anything that violates any laws and regulations, including without limitation applicable consumer law in Australia.

(b) To the extent permitted by law and subject to any non-excludable rights, all express or implied conditions or warranties of any kind (including but not limited to any warranties related to the Deliverables and the Services, fitness for purpose, freedom from contamination by computer viruses and the accuracy, currency, completeness, reliability, timeliness or usefulness of any the Services or associated deliverables) are excluded.

6.2 No liability

(a) You understand and acknowledge that your commission of the Project and your use of our Services is entirely at your own risk.

(b) To the extent permitted by law, we will not be liable for any loss or damage incurred or suffered by you or any third party whatsoever in connection the provision of the Deliverables and the Services or the Project, including direct, indirect, incidental, special, consequential or exemplary damages, even if we have been advised of the possibility of such losses.

6.3 Indemnity

(a) Subject to clause 3(b), you will indemnify us and hold us harmless from and against any losses, liabilities, demands, claims, actions, costs (including legal costs) and expenses incurred or suffered by us, or awarded by a court of competent jurisdiction against us, however arising, as a result of or in connection with:

(i) any information provided to us by you that is not accurate, up to date or complete or is misleading or a misrepresentation, including but not limited to any products provided or specified by you to be featured in any of the Deliverables or Services, promoted by us or co-branded by us;

(ii) the safety, quality and functionality of any products provided or specified by you to be featured in any of the Deliverables or Services, promoted by us and/or co-branded by us;

(iii) any breach by you of this Agreement;

(iv) any misuse of the Deliverables and/or Services provided under this Agreement by you, your employees, contractors or agents.

(v) your infringement of the rights (including without limitation Intellectual Property rights) of any third party;

(vi) any improper, negligent or unauthorised use by you of the Deliverables and/or Services, provided to you in relation to the Project; and

(vii) your contractual relationship with any third party.

(b) The indemnity in clause 6.3 does not apply to the extent that any liability arises as a result of any breach of this Agreement by us or any negligent, wilful or fraudulent act or omission by us, our officers, employees, agents or contractors.

7. Term and Termination

7.1 This Agreement will commence on the Commencement Date specified in the Statement of Work and unless terminated earlier in accordance with this clause 7, will continue until the completion of the Project.

7.2 Either party may terminate this Agreement immediately by notice in writing if the other party:

(a) is in material breach of this Agreement; and

(b) fails to rectify this breach as reasonably determined by us within 7 days’ notice of the breach being given in writing.

7.3 Either party may terminate this Agreement immediately by notice in writing upon the happening of any of the following events to the other party (defaulting party):

(a) the defaulting party enters into a deed of arrangement or an order is made for either party to be wound up;

(b) an administrator, receiver or liquidator is appointed to the defaulting party pursuant to the Corporations Act 2001 (Cth), or any foreign equivalent laws; or

7.4 We may terminate this Agreement by providing you with at least 7 days’ written notice of the intention to terminate this Agreement, if you take any action or inaction which, in connection with your continued use of the Intellectual Property under the IP Licence, has had the effect of, or which we reasonably consider is likely to have the effect of, damaging the reputation or goodwill of us, our Brand Materials or Marion Grasby.

7.5 Upon termination of this Agreement:

(a) any fees, expenses or reimbursements payable by you to us in respect of the period prior to termination must be paid within 30 days after the date of termination;

(b) we will not be required to refund any amounts paid by you to us, except as expressly set out in the Agreement; and

7.6 Any term of this Agreement that, by its nature, is intended to survive termination or expiry of this agreement, will survive termination or expiry of this Agreement, including but not limited to clauses 2, 6, 7, 8, 9 and 10.

8. GST

8.1 The terms used in this clause are defined in the GST Act.

8.2 Payment of GST

(a) Unless otherwise expressly stated, all Fees payable under this Agreement are exclusive of GST.

(b) Upon receipt of a valid tax invoice from us, you must pay, in addition to the Fees under this Agreement, the amount of GST payable in respect of the Deliverables and Services that we have provided.

(c) You are responsible for any GST incurred by a third party in relation to the Deliverables and Services you have requested under the Project, including costs and disbursements incurred in accordance with clause 4.4.

9. General

9.1 Inconsistency of terms

To the extent of any inconsistency between these terms and conditions, the Statement of Work and the Media Plan, the Statement of Work shall always prevail (including any terms described as ‘Special Conditions’) and these terms and conditions shall prevail over the Media Plan.

9.2 Assignment

We may assign our rights and obligations under this Agreement. You may not assign your rights or obligations under this Agreement in whole or in part to any third party without our prior written consent and such consent must not be unreasonably be withheld.

9.3 Confidentiality

You must not disclose any Confidential Information that you receive from us in relation to the Project to anyone, without our express written consent.

9.4 Further assistance

You agree to cooperate with us, at your own expense, in the handling of disputes, complaints, investigations or litigation that arise as a result of the Project or your use of the Deliverables or Services, including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information that you have provided to us.

9.5 Force Majeure

We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to an event outside our control including, without limitation, any act of government, accident, fire, insurrection, war, act of God, natural disaster, sabotage, strike or industrial action, and sickness of Marion Grasby or other key personnel.

9.6 Severability

If any clause or part of any clause of this Agreement is in any way unenforceable, invalid, or illegal, it is to be read down so that it is enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

9.7 Nature of relationship

(a) Nothing in this Agreement is intended to create a relationship with us of employee, contractor or To the extent permitted by law, you agree that we owe no fiduciary obligations to you as employer or agent or in any other capacity.

(b) Nothing in this Agreement constitutes a partnership between us, despite the use of the word ‘partnership’ in this Agreement (if any) or in our correspondence.

9.8 Entire Agreement

This Agreement constitutes the entire agreement between the parties. All representations and prior agreements in relation to the subject matter of this Agreement are merged in and superseded by this Agreement.

9.9 Variation

(a) We reserve the right to amend or vary these terms and conditions, including our payment methods, payment processing and pricing structures at any time by giving notice to you. Notice of any such amendment or variation is deemed to be provided to you and will become effective upon the earlier of us sending notice of the amendment to you or us publishing the amended terms on our website.

(b) No variation or amendment of, or addition to, the Statement of Work is effective unless such variation, amendment or addition is agreed in writing by both parties and includes express words to the effect that it has the effect of varying, amending or adding to the Statement of Work.

9.10 Governing law and jurisdiction

These terms and conditions are governed by the laws in force in New South Wales and the parties agree to be bound by the non-exclusive jurisdiction of the Courts of New South Wales and any courts competent to hear appeals from those courts.

10. Definitions

The following terms have the meanings ascribed to them below unless the context requires otherwise:

Additional Period has the meaning given to it in clause 2.3(b).

Agreement means these terms and conditions together with the relevant Statement of Work and Media Plan (if any).

Brand Materials means any or all of the following as described in the Statement of Work or otherwise agreed to by us in writing to be made available to you for the purposes of use to be incorporated in the Deliverables or Services, or use on a standalone basis, or both:

(i) the words ‘Marion’s Kitchen’, ‘Marion Grasby’, ‘Mama Noi’ and their derivative usages;

(ii) trade marks and copyrighted images associated with our brand; and

(iii) the likeness of Marion Grasby and her mother, commonly known as ‘Mama Noi’, whether separately or together.

Cancellation Notice has the meaning given to it in clause 5.3.

Cancellation Period has the meaning given to it in clause 5.3(a).

Client Materials includes any copy, image, logo, artwork, photographs or other material, including competition prizes and products to be featured in the Deliverables, supplied by you, whether as described in the Statement of Work, or merely supplied to us, including any prizes to be provided to competition winner(s), pursuant to or in anticipation of this Agreement, regardless of when such materials are supplied.

Confidential Information includes any information about our business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, knowhow, intellectual property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.

Default Fee has the meaning given to it in clause 2.3(b).

Deliverables means the deliverables described in the Statement of Work.
Distributable Media Content has the meaning given to it in clause 2.2(a)(i).
GST has the meaning given to it in the GST Act.

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

Intellectual Property means any and all right, title and interest in any invention, design, pattern, copyright, trademark, trade secret or Confidential Information, know-how, trade name, service mark, business names domain names or internet addresses, whether registered or not and which is now or may hereafter exist, and any associated or ancillary rights.

IP Licence has the meaning given to it in clause 2.2(a)(iii).

Media Content means any materials capable of publication that are created by or on behalf of us, and which include but are not limited to:

(i) audio visual materials such as video recordings and animated videos;

(ii) audio materials such as sound recordings, interviews and music;

(iii) written materials such as recipes, quotations and promotional text; and

(iv) any other materials capable of publication forming part of a Deliverable or Service.

Media Plan means the document of the same name setting out the media plan for the Project.

Part Performance has the meaning given to it in clause 5.3(c)(ii).

Project means the commercial project that includes the provision of the Deliverables, the performance of the Services, brand licensing and/or other commercial arrangements as described in the Statement of Work.

Promotional Materials has the meaning given to it in clause 2.2(a)(ii).

Services means (i) the services described in the Statement of Work, and (ii) preparatory work for the provision of Deliverables, whether or not expressly described in the Statement of Work.

Statement of Work means the document of the same name setting out the commercial terms of the Agreement between you and us, as amended in accordance with clause 9.9(b) from time to time.

Unpaid Fees has the meaning given to it in clause 5.3(c)(iii).

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