Gloo Advertising have set out in this document our basic terms and conditions of business (the “Terms”), which, together with our Engagement Letter (together called “this Agreement”), will apply to all work Gloo Advertising undertakes for you with respect to this engagement. If there is any conflict between these Terms and our Engagement Letter, then the Engagement Letter shall prevail.
For the purposes of clauses 2—15, “Gloo Advertising” includes Capital3 Business Services Trust, all employees, servants and agents and related entities.
Our services
Gloo Advertising will provide the services set out in our Engagement Letter (the “Services”) and will use all reasonable commercial efforts to provide the Services in an efficient and timely manner, using the necessary skill and expertise to an appropriate professional standard.
Your obligations
You agree to pay for the Services in accordance with this Agreement.
You will provide Gloo Advertising promptly with such information as may reasonably be required for the proper performance of the Services, including access to appropriate members of your staff, records, information, technology, systems and premises.
Gloo Advertising shall be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it.
You shall retain responsibility for the use of, or reliance on, advice or recommendations supplied by us in the delivery of the services.
You undertake that, if anything occurs after information is provided by you to Gloo Advertising, to render such information untrue, unfair or misleading, you will promptly notify Gloo Advertising and, if required by Gloo Advertising. Take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon, such information.
You acknowledge that information made available by you, or by others on your behalf, to, or which is otherwise known by, partners or staff of Gloo Advertising who are not engaged in the provision of the Services shall not be deemed to have been made available to the individuals within Gloo Advertising who are engaged in the provision of the Services.
Confidentiality
Both parties acknowledge that they may, in the course of the engagement, be exposed to or acquire information that is proprietary or confidential to the other party. Both parties agree to hold such information in strict confidence, and not to divulge such information except as may be required by law or judicial process, by any persons or bodies responsible for regulating that party’s business or as required by a party’s internal policies.
Staff
You must not at any time during provision of the Services and for a period of six (6) months after completion of this agreement:
solicit, canvass, induce or encourage any person who was at any time been an employee or consultant of the firm to leave the employment of Gloo Advertising or Related Body Corporate (as defined in the Corporations Act) as applicable; or
solicit, canvass, induce or encourage any person who was at any time during the six month period ending on the date of termination of this agreement an employee or consultant of Gloo Advertising to become in any way involved in your business as employee or otherwise be concerned or interested in directly or through any interposed firm, trust or partnership and whether as trustee, principal, agent, director, shareholder, unitholder, independent contractor, consultant, adviser, employee or in any other capacity.
in the event that you breach the provisions of this clause then you agree that Gloo Advertising can institute proceedings for injunctive relief and/or damages for any loss arising from the breach.
Benefit of advice
Unless otherwise specifically stated in the Engagement Letter, any advice or opinion relating to the Services is provided solely for your benefit and may not be disclosed in any way, including any publication on any electronic media, to any other party and is not to be relied upon by any other party.
During the supply of our services, we may supply oral, draft or interim advice, reports or presentations but in such circumstances our written advice or final written report shall take precedence. No reliance should be placed by you on any oral, draft or interim advice, reports or presentations. Where you wish to rely on oral advice or an oral presentation, you shall inform us and we will provide documentary confirmation of the advice.
Gloo Advertising shall not be under any obligation in any circumstance to update any advice or report, oral or written, for events occurring after the advice or report has been issued in final form.
Electronic mail
If you ask us to transmit any document to you electronically, you agree to release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document after transmission, for any delay or non-delivery of any document and for any damage caused to your system or any files by the transmission (including by any computer virus).
You may not rely on electronically transmitted advice or opinion unless it is subsequently confirmed by fax or letter signed by an authorised signatory of Gloo Advertising.
Fees, expenses and payment terms
The time based fees, if any, quoted in the Engagement Letter or as separately quoted in a fee letter will remain in force until 31 December or 30 June (whichever occurs first) and we may increase fees for work continuing past that date. We review our time based fees six monthly.
Out-of-pocket expenses incurred in connection with the engagement will be charged to you.
The consideration payable for any supply made or to be made under this Agreement is exclusive of, any goods and services tax (“GST’). If GST is payable on any supply made or to be made under this Agreement, you agree that the consideration payable for any such supply shall be increased by an amount equal to the amount of GST payable by Gloo Advertising in respect of that supply.
Accounts are to be paid within 14 days of the billing date. We may charge interest on any outstanding balances at a rate of 2% over the 180 Day Bank Bill Rate.
If we are required (pursuant to subpoena or other legal process) to produce documents or attend court in relation to the Services for judicial or administrative proceedings to which we are not a party, you shall reimburse us at standard billing rates for our professional time and expenses, including reasonable legal fees, incurred in responding to such requests.
Problem Resolution
If at any time you would like to discuss with us how the Services can be improved or if you have a complaint about them, you are invited to telephone the director or Chief Executive Officer, as the case may be identified in the Engagement Letter. We will investigate any complaint promptly and do what we can to resolve the difficulties.
If the problem cannot be resolved, the parties agree to enter into mediation, or some other form of alternative dispute resolution, before commencing legal proceedings.
In the event of a dispute, or where fees remain unpaid beyond the due date, we reserve the right to suspend provision of the Services until such time as the dispute is resolved or the fees are paid. Suspension of the Services will not affect your obligation to pay us for Services rendered to the date of suspension.
Termination of Agreement
Each of us may terminate this Agreement if:
the other commits any material or persistent breach of its obligations under this Agreement (which, in the case of a breach capable of remedy, shall not have been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy); or
the other becomes insolvent; or
The Services are suspended under clause 9.3 for more than 10 normal working days.Each of us may terminate this Agreement if:
Termination must be effected by written notice served on the other.
Termination under this clause shall be without prejudice to any rights that may have accrued for either of us before termination and all sums due to us shall become payable in full when termination takes effect.
Limitation of liability
In this section, we set out, and you accept, the limitations which apply to our liability to you should you have reason to make a claim against us. The limitations and exclusions are accepted by both of us to be fair and reasonable, given the duties we are undertaking, the sums to which we are entitled and the availability (and cost) of insurance.
Nothing in these Terms excludes, restricts or modifies the application of the provisions of any statute (including the Trade Practices Act 1974) where to do so would contravene that statute or cause any part of these Terms to be void.
These Terms, and the Engagement Letter, are the only communications governing our relationship. Subject to clause 11.2, Gloo Advertising will have no liability for any statements, representations, guarantees, conditions or warranties (collectively referred to as “representations”) arising from communications (oral or written) which are not expressly contained in this Agreement. All representations to exercise reasonable care or render our services with due care and skill which may otherwise be implied by statute, common law or custom are expressly excluded. If any representations are of importance to you, you should ensure that they are expressly set out in the Engagement Letter before signature.
Subject to clauses 11.2 and 11.6, you agree that Gloo Advertising’s liability for any loss or damage suffered by you (whether direct, indirect or consequential) in connection with our engagement, including (without limitation) liability for any negligent act or omission or misrepresentation of Gloo Advertising, shall be limited to the amount of professional fees paid to Gloo Advertising determined in this Consultancy Services Agreement in respect of the Services and you agree to release Gloo Advertising from all claims arising in connection with the Services to the extent that Gloo Advertising’s liability in respect of such claims would exceed the amount of those professional fees.
If Gloo Advertising is liable for a breach of any warranty implied by section 74 of the Trade Practices Act, 1974 in respect of Services not of a kind ordinarily acquired for personal, domestic or household use or consumption, Gloo Advertising’s liability under that section is limited to the supplying of the Services again or the payment of the cost of having the Services supplied again, whichever Gloo Advertising, in its absolute discretion, elects.
To the extent permitted by law, you agree that to the extent that any loss or damage suffered by you is attributable to negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, Gloo Advertising is not liable (in contract, tort or otherwise) for the loss or damage.
Indemnities
You agree to indemnify and hold harmless Gloo Advertising against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, whatsoever incurred by Gloo Advertising in respect of any claim by a third party arising from or connected to any breach by you of your obligations under this Agreement.
Gloo Advertising shall not be liable for any losses, claims, expenses, actions, demands, damages, liabilities or any other proceedings arising out of reliance on any information provided by you or any of your representatives which is false, misleading or incomplete. You agree to indemnify and hold harmless Gloo Advertising from any such liabilities we may have to you or any third party as a result of reliance by Gloo Advertising on any information provided by you or any of your representatives which is false, misleading or incomplete.
In the event of any inconsistency between clauses 11 and 12, clause 12 shall prevail.
Copyright
Upon payment in full by you for the Services pursuant to the Terms and Engagement Letter Gloo Advertising will assign all copyright and intellectual property rights to you or your nominated entity. If payment in full is not made Gloo Advertising will retain all right title and interest in the copyright and intellectual property.
Force majeure
If the performance of this Agreement by a party, is prevented or restricted by reason of fire, storm, flood, earthquake, war, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non-performance and to cure and complete performance with the utmost dispatch.
Governing law and jurisdiction
This Agreement and all aspects of our engagement and our performance of the Services are governed by, and construed in accordance with, the laws applicable in the state of Tasmania. Both you and we agree to irrevocably submit any disputes arising under this agreement to the exclusive jurisdiction of the Courts of that state.
Variation
No variation of this Agreement will be valid unless confirmed in writing by authorised signatories of both parties on or after the date of signature of the Engagement.
