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communications and prior agreements in relation to the subject matter of this Agreement are merged in and superseded by the Agreement; and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.
1.1 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.
(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 time.
(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
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);
(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 2.2(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;
(C) you have otherwise not complied with the terms of this Agreement in all material respects; or
(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 2.2(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 Period. 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 2.3(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.
(c) If the Statement of Work does specify that the Client Materials will be returned to you, then:
(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 5.2 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.
(c) In the event that:
(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 5.3(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
(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.