Confluence Digital
Client
1 RECITALS
1.1 Confluence Digital engages into an agreement with the client to perform the services based off the terms and conditions of this Agreement.
The Client has agreed to accept the Services on the terms of this Agreement.
2 TERMS OF YOUR CONTRACT
2.1 The provisions stated in this document ‘Terms and conditions’ apply to the delivery of service from Confluence Digital (we, us, our) to the client (you, your, the client).
2.2 This Agreement commences on the Commencement Date and expires at the end of the Contract Period.
2.3 Pending the expiration of the Contract Period, if Confluence Digital continues to provide the Services without objection by client, this Agreement will roll on a monthly basis without notice to you. In order to apply to a monthly term until terminated by 30 days’ notice in writing is required by either Party.
2.3 The parties accept that the nature of the Services may be significantly varied throughout the Client’s engagement. It is agreed that irrespective of any such variations, the terms and conditions set out in this Agreement will continue to apply unless otherwise amended in writing
2.4 The client acknowledges and accepts a third-party supplier may be used to provide the Service to you. Under the circumstances that this may change this will be under our sole discretion. Should this take place, you acknowledge and agree that we have full authorization to move, alter or delete your data from systems accessed by the supplier as reasonably necessary.
2.5 This Agreement and any proposal or quote prepared for the Client (whether orally or in writing) sets out the scope (Scope) of the Services and Deliverables the Client has requested (Work).
3 RELATIONSHIP
3.1 Confluence Digital warrants that it is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.
3.2 Confluence Digital will not: Hold itself out as an agent of the Client, except to the extent necessary to carry out the Works; or Incur obligations or liabilities on behalf of the Client unless the Client provides written permission.
4 ENGAGEMENT OF CLIENT
4.1 Confluence Digital agrees to engage the Client to provide the Services on the terms and conditions set out in this Agreement and the Client agrees to the terms and conditions.
5 STIPULATION OF SECURE ACCESS TO OUR SYSTEMS
5.2 All login details must be kept secure and confidential at all times; this is to be divulged to your employees and those taking up the service of this agreement.
5.3 You agree that you the client is responsible for actions of the people you share your login details with (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those login details.
5.4 You must notify Confluence Digital immediately of any security breach or unapproved use of your login details to access the systems. Liability for any loss you incur due to any unauthorised use of your login detail, will not be prosecuted against Confluence Digital.
5.5 You consent to our use of your login details and data in the delivery of the Services, including in respect of any additional requirement such as migration or transition of your account, content or data (to or from any suppliers we use) as reasonably necessary for the continued provision of the Services.
6 OBLIGATIONS
6.1 Confluence Digital will work diligently to ensure that the Works are complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties; Ensure that the Works are provided in accordance with the standards outlined in the Scope; Establish and maintain clear channels of communication at all times with the Client, and promptly answer any questions asked by the Client; Comply with all the relevant laws and industry standards in respect of providing the Work; and Act in accordance with the Client’s reasonable directions while providing the Work.
7 THE CLIENT’S KEY OBLIGATIONS
7.1 The Client will:
Provide Confluence Digital access to the following:
- a) Resources, electronic systems and premises required to provide the Work; and
- b) All materials and information upon request for us to be able to carry out the service;
- c) Ensure all communication channels are kept and remain open at all times with Confluence Digital;
7.2 As in structured promptly provide, logins, data and all other necessary materials to permit Confluence Digital to provide the Work effectively.
7.3 The Client shall inform Confluence Digital immediately if we have misunderstood the Client or made incorrect assumptions. The Client must take reasonable care to protect its own interests.
7.4 The Client is to provide Confluence Digital with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.
7.5 Promptly notify Confluence Digital if the Client considers that any statement made in any document submitted by Confluence Digital to the Client for Approval is incorrect or misleading in any way, or may give rise to any claim or action for defamation or otherwise against Confluence Digital.
8 CLIENT APPROVAL
8.1 The Client to promptly notify Confluence Digital in writing of any change regarding who is an Authorised Person during the term of this Agreement.
8.2 We will not be responsible for any delays regarding campaigns or performance of the Services resulting from the unavailability of an Authorised Person to provide Approval.
8.3 Approval shall be provided by: email from an Authorised Person bearing Approval.
8.4 After obtaining Approval of a quote or proposal that form part of the Scope, Confluence Digital shall submit to the Client for specific Approval as required such draft or proof documents, images or video that require Approval subject to the Scope before commencement.
8.5 Approval of drafts or proofs shall be acknowledged as direction to proceed.
9 FEES & PAYMENT
9.1 Fees
Confluence Digital will charge the Client such fees as specified in the Scope (Fees) which may include:
i an agreed fixed fee rate (Fixed Fee Rate);
ii an upfront fee; and
iii such other Fees or Expenses in accordance with a specified payment schedule.
Where a Fixed Fee Rate applies the Client agrees:
i To pay an upfront fee for Confluence Digital commitment to undertake the agreed work;
ii The Fixed Rate Fee only covers work done within the Scope;
iii The Client must provide instructions (and all required information and other documents) to Confluence Digital within the timeframe(s) specified in the Scope; and
iv The Fixed Fee Rate does not cover any work done outside of (i) to (iv) (inclusive) above. Confluence Digital reserves the right to not undertake any work falling outside of 9.1(b)(b)i to 9.1(b)iii above without additional payment or an agreement by the Client to pay Confluence Digital at its hourly rates.
Confluence Digital will advise the Client as soon as reasonably practicable where work falls outside of these parameters and give the Client an estimate of the additional costs/rates.
If Confluence Digital obtain any goods or services for the Work from third parties the Client agrees to pay these at cost (Expenses). Such Expenses shall include, without limitation:
i External consultants;
ii Design, artwork and print;
iii Direct mail;
iv Video production;
v Photography and prints;
vi Postage and packaging.
For the avoidance of doubt any services contained in Expenses shall not constitute subcontracting pursuant to clause 9 of this Agreement.
Confluence Digital shall seek Approval prior to incurring the cost of any Expenses. Unless otherwise stated, fees are exclusive of GST, which is payable in addition at the prevailing rate.
9.2 Invoicing & Payment
Confluence Digital shall provide a Tax Invoice to the Client for any Works provided.
The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 5 business days from the date of the invoice.
Payment shall be by electronic transfer into Confluence Digital nominated bank account unless otherwise agreed between the Parties.
9.3 Disputed Tax Invoice
Should the Client dispute any charge on a Tax Invoice, the Client must notify Confluence Digital of the disputed item within 2 business days of the date of the Tax Invoice.
The Client must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
Failure by the Client to notify Confluence Digital of a disputed Tax Invoice within 5 business days shall be deemed acceptance by the Client of the entire Tax Invoice.
9.4 Interest
Confluence Digital charge interest at a rate of 10% per annum, calculated daily, on overdue Tax Invoices.
10 INTELLECTUAL PROPERTY
10.1 Background IP.
Confluence Digital IP
i For the purposes of this clause, Confluence Digital IP means all Intellectual Property of Confluence Digital
incorporated in the Services and/or Deliverables.
ii The Client acknowledges that Confluence Digital retains ownership of all of Confluence Digital IP.
iii Confluence Digital grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the Confluence Digital IP to the extent that it is contained within the Services and/or Deliverables.
Client IP
i For the purposes of this clause, Client IP means all Intellectual Property of the Client contained in any
information provided to Confluence Digital in the course of providing the Services.
ii Confluence Digital acknowledges that the Client retains ownership of all of Client IP.
iii The Client grants Confluence Digital a non–exclusive, perpetual, non–transferable, royalty free and worldwide
licence to use the Client IP to the extent that it is contained within the Services and/or Deliverables.
iv The Client grants Confluence Digital a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP/Client’s name and logo in Confluence Digital marketing or tender documents, unless the Client directs Confluence Digital not to.
Third-Party IP
i For the purposes of this clause Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Works. Such Third-Party IP may be attached to (without limitation) software code; photographs; written material; visual and artistic design; video and film; and audio recordings.
ii Confluence Digital shall grant to the Client such rights as the owner of the Third-Party IP permits Confluence Digital to grant the Client.
10.2 New IP.
Any Intellectual Property generated by Confluence Digital for the Client in the process of providing the Works (New IP) is owned absolutely by the Client and vests in the Client immediately.
To the extent that Confluence Digital may at any time acquire any right, title or interest in the New IP, Confluence Digital by this document, agrees to assign to the Client all such rights, title and interest in the New IP.
Unless otherwise agreed in writing by the parties, and notwithstanding any prevision of this Agreement to the Contrary, the Client grants Confluence Digital a non-exclusive, perpetual, non-transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the New IP to the extent that it is contained within the Works.
The Client may only use the New IP for the purpose for which it was created, and no work in draft or incomplete form, or that was not otherwise Approved shall be used or published as finished work without Confluence Digital prior written consent.
11 CONFIDENTIALITY
11.1 Confidential Information means any written or verbal information that: is related to the Client and is obtained from the Client or one of the Client’s employees or representatives;
The Client informs Confluence Digital that the Client considers it confidential and/or proprietary; or is personal information within the meaning of the Privacy Act 1988 (Cth).
11.2 Confluence Digital will keep all Confidential Information in confidence on an ongoing basis in accordance with this Agreement.
11.3 The Confidentiality obligations owed under this Agreement shall survive termination of the Agreement.
11.4 Confluence Digital must not: Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or Disclose any of the Confidential Information except in accordance with clauses 11.5 or 11.6.
11.5 Confluence Digital may disclose Confidential Information to its personnel (including to third parties engaged by Confluence Digital to provide services in connection with the Work) if:
The disclosure is required to enable Confluence Digital to perform its obligations or to exercise its rights under this document; and
Prior to disclosure, Confluence Digital informs the person of Confluence Digital obligations in relation to the Confidential Information under this document;
11.6 Subject to clause 11.7, Confluence Digital may disclose Confidential Information that Confluence Digital is required to disclose by law.
11.7 If Confluence Digital is required to make a disclosure under clause 11.6, Confluence Digital must: To the extent possible, notify the Client immediately after it anticipates that it may be required to disclose any of the Confidential Information; and Only disclose Confidential Information to the extent necessary to comply.
11.8 The Client and Confluence Digital must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
12 PRIVACY AND DIRECT MARKETING
12.1 Confluence Digital may collect personal information about the Client and its representatives and employees in the course of acting for the Client.
This personal information will only be disclosed and used for the purposes of performing the Work, improving Confluence Digital services and obtaining feedback, or otherwise in accordance with the Client’s instructions.
12.2 The Client consents to Confluence Digital use of the Client’s contact details to maintain an ongoing professional relationship with the Client and any associated entity, including in order to provide updates, invitations and other communications Confluence Digital consider may interest the Client.
12.3 The Client may have rights under the Privacy Act 1988 (Cth) to obtain access to personal information Confluence Digital holds.
13 DISPUTE RESOLUTION
13.1 If any dispute arises between the Client and Confluence Digital in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which: Includes or is accompanied by full and detailed particulars of the Dispute; and Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
13.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and Confluence Digital must meet and seek to resolve the Dispute.
13.3 Subject to clause 13.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
13.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
13.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
14 AMENDMENT AND ASSIGNMENT
14.1 This Agreement can only be amended, supplemented, replaced or novated by written agreement between the parties.
14.2 Save where expressly set out otherwise, the parties to this Agreement may not assign or otherwise create an interest in their rights under this document without the written consent of each other party.
15 ELECTRONIC COMMUNICATION & NOTICES
15.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
15.2 The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.
15.3 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
15.4 Notices must be sent to the parties’ contact details as advised to the other party from time to time.
16 TERM AND TERMINATION
16.1 Term. This Agreement shall end when the works have been completed by Confluence Digital in the reasonable opinion of the Client, or by earlier termination in accordance with the terms of this Agreement.
16.2 Termination. Either party may terminate this Agreement by giving the other party no less than 30 days’ written notice unless agreed otherwise.
Should the Client terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay Confluence Digital for all Services and/or Deliverables (which if on an hourly basis are all Fees payable up to the date of termination, including time spent on disengagement).
17 GENERAL
17.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
17.2 Prevalence. To the extent that the Special Conditions are inconsistent with these terms, the Special Conditions will prevail.
17.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
17.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
17.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
17.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
17.7 Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there, in the city of Melbourne.
17.8 Inconsistency. If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
17.9 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
17.10 Time. Time is of the essence in this Agreement.
17.11 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.