1. INTRODUCTION
In the absence of a fully executed and currently applicable agreement between us (“Supplier Agreement”), these terms and conditions will ("Terms”), when read together with the applicable Purchase Order, (together the "Contract”) apply to Supplier’s provision of the Work to the Agency as described in the Purchase Order. In the event of any conflict or inconsistency, and unless otherwise stated in these Terms, the following documents shall prevail in the following order: (i) the Terms or Supplier Agreement (as applicable); (ii) the Purchase Order.
2. DEFINITIONS
For the purposes of this Contract the capitalised terms shall have the meanings set forth below:
“Agency” shall mean the entity whose details are set out in the Purchase Order;
“Agency Data” shall mean any data and/or information relating to Agency or its Clients, including Agency and Client Personal Information, provided directly or indirectly to Supplier or its employees or created by or generated by the Client’s or by Agency’s use of the Work;
“Agency Materials” means Materials provided by or on behalf of Agency or the Client to Supplier (or provided to such third parties as Supplier may nominate to receive such Materials from time to time with Agency’s approval) in connection with this Contract (including without limitation Agency’s or Client’s name, logo and trade marks requested by Agency or Client, and any third party materials provided by Agency to Supplier in connection with this Contract), including Agency Data;
“Agency Representative” shall mean Agency’s representative, the contact details for whom are specified in the Purchase Order;
“Anti-Corruption Laws” shall mean all local and international laws and regulations concerning fraud, bribery and corruption, including but not limited to the UK Bribery Act of 2010 and the United States Foreign Corrupt Practices Act 1977;
“Associated Persons” shall mean all employees, agents, consultants, partners, representatives, subcontractors, other individuals and entities acting for or on behalf of Supplier;
“Charges” means (i) the Fees; (ii) Third Party Expenditure and any additional expenses approved by Agency;
“Client” shall mean Agency’s client (if any) as identified in the Purchase Order, together with any associated companies;
“Deliverables” means the goods, materials, content or other deliverables provided by Supplier, as specified in the Purchase Order;
“Delivery Date(s)” means the date or dates upon which the Work shall be provided or performed by Supplier, as set out in the Purchase Order, and any other date(s) agreed in writing between the parties;
“Intellectual Property Rights” or “IPR” shall mean all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software and source code, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), performers’ property rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Materials” means any graphic design, copy writing, animation, sound production, video, graphic production, html, JavaScript or other website code, software, data, databases, keywords, links, cookies, pixels, tags, locally shared objects, methodologies, programmes, tools, marketing strategy documents, advertising materials and other creative or marketing materials;
“Modern Slavery Laws” means all applicable modern slavery laws, statutes and regulations from time to time in force, including but not limited to the Modern Slavery Act 2018 (Cth);
“Personal Information” shall have the meaning set out in the Privacy Legislation;
“Privacy Legislation” means the Privacy Act 1988 (Cth) and all applicable implementing or equivalent legislation in the Territory;
“Purchase Order” means a purchase order issued by Agency that accepts and incorporates the Supplier’s Offer;
“Services” means the services provided by Supplier as specified in the Purchase Order;
“Supplier” shall mean the party supplying the Work to Agency entity under this Contract and whose details are set out in the Purchase Order;
“Supplier’s Offer” shall mean the document containing particulars of, and the Charges for, the Work, which may include, but not limited to, statements of work, responses to briefs, quotes and vendor order forms;
“Supplier Representative” shall mean Supplier’s representative, the contact details for whom are specified in the Purchase Order;
"Supply Chain” means the goods and services (including labour) that contribute to the Supplier’s own goods and services, including: (a) goods and services sourced or used by the Supplier from any jurisdiction; and (b) goods and services sourced or used by a Supply Chain Participant in any jurisdiction;
“Supply Chain Participant” means, in relation to a business, any organisation or individual involved in the chain of production and provision of particular goods or services to that business;
“Territory” means the territory as specified in the Purchase Order;
“Third Party Expenditure” means any costs, charges, commissions and/or expenses associated with any booking placed with third party vendors that is approved by Agency;
“Work” shall mean the Services and/or the Deliverables to be supplied as described in the Purchase Order.
3. FORMATION OF CONTRACT
3.1. A Purchase Order issued by Agency represents Agency’s acceptance of Supplier’s Offer entry into the purchase and supply agreement it describes ("Acceptance”).
3.2. Upon Acceptance, the parties shall be bound by the terms of the Contract. No provision of the Contract shall be modified or varied without the written consent of the parties.
3.3. Notwithstanding any other provision of the Contract, Agency is under no obligation to issue Supplier Purchase Orders.
4. DELIVERY AND PERFORMANCE
4.1. Supplier agrees to deliver the Work to Agency upon the Delivery Date(s) and according to any specifications and/or conditions of performance specified in the Purchase Order. Unless Agency has agreed otherwise in writing, Supplier shall deliver the exact specified Deliverables and Services as specified in the Purchase Order.
4.2. Supplier shall meet, and time is of the essence in relation to, any performance timescales and/or Delivery Dates.
4.3. If Supplier fails to deliver the Work as required by clause 4.1 or to meet any performance timescales and/or Delivery Dates as required by clause 4.2, Agency may, without prejudice to any other rights or remedies afforded to it under this Contract or by applicable law: (a) terminate the contract between the parties in whole or in part; (b) refuse to accept any subsequent performance of the Work; (c) purchase substitute services from elsewhere; and/or (d) hold Supplier responsible for any loss and additional costs incurred as a result of such failure.
4.4. Supplier agrees to cooperate fully with any third parties appointed by Agency or otherwise at the request of Agency as necessary to complete performance of the Work and as reasonably required by Agency thereafter.
4.5. Supplier agrees to notify Agency immediately on becoming aware of any event or circumstance that has caused or may cause a delay in the commencement or completion of the Work. Without prejudice to Agency’s other remedies under the Terms or in law, Supplier shall be solely responsible for promptly remedying, at Supplier’s own expense and to the satisfaction of Agency, any non-conforming part of the Work.
4.6. Where applicable, Supplier shall include with each delivery a list of contents including serial numbers, to allow for review of contents upon receipt.
4.7. Agency reserves the right to inspect the Work on or immediately after delivery and within a reasonable time after delivery to reject the Work or any part of the Work which is not provided in accordance with the Contract, including without limitation (i) failure to conform with specifications relating to quantity, quality and description set out within the particulars of the Purchase Order; or (ii) compliance with any conditions of performance (if any) specified in the Purchase Order.
4.8. Supplier will fully comply with all policies, rules, procedures and standards notified by Agency in writing to Supplier from time to time in relation to the Work including, without limitation, those governing quality, conduct and appearance of project personnel, site and product safety, insurance, data privacy and data security, business continuity and disaster recovery.
4.9. Agency shall have the right to have an Agency or Client representative in attendance during any shooting, recording, production and/or post-production for consultation and approvals as may be necessary relating to the content of the Work, and Supplier shall provide the representative with a means to review such Work (for example, a monitor to view live picture).
5. QUALITY OF THE WORK AND OTHER OBLIGATIONS
5.1. Supplier hereby represents and warrants that: (a) it will perform the Work in accordance with best industry practice and standards and, in any event, to the satisfaction of Agency; (b) the Work will conform with all descriptions and specifications set out in the Contract; (c) it will ensure that it, and any Associated Persons performing any portion of or the entirety of the Work, shall be suitably qualified with appropriate levels of training, experience and seniority to carry out the Work and, where applicable, shall be duly licensed, certified or authorised to carry out the Work as required by law; (d) the Work will be provided in accordance with all applicable legislation, regulations, regulatory policies, guidelines and codes in each case from time to time in force (including all such guidelines and codes issued by statutory, regulatory and industry bodies), from time to time in force, and Supplier will inform Agency as soon as it become aware of any changes in such legislation; (e) neither Supplier nor any of its Associated Persons has at any time engaged in, or presently engages in, any activity, practice or conduct which may constitute an offence under any applicable fraud, anti-bribery or corruption laws or regulations, including but not limited to the Anti-Corruption Laws; (f) neither Supplier nor any of its Associated Persons has at any time engaged in, or presently engages in, any activity, practice or conduct which may constitute an offence under any Modern Slavery Laws, and, in the performance of this Agreement, will: (i) comply with all Modern Slavery Laws; (ii) use reasonable efforts to procure that the Supplier, its Associated Persons, and its Supply Chain Participants comply with all Modern Slavery Laws; (iii) include in its contracts with Supply Chain Participant provisions that are at least as onerous as those set out in this clause; (iv) have in place, and maintain in place at all times adequate and reasonable policies, controls, procedures and training at its own cost, designed to prevent, detect, assess, and mitigate the risk and remediate any instances of Modern Slavery in its operations and Supply Chain; (v) notify the Agency promptly of becoming aware, of any actual, alleged or reasonably suspected breach of Modern Slavery Laws in its operations or Supply Chain; (g) comply with all reasonable standards of safety and comply with any health and safety procedures from time to time in force at the premises where the Works are provided or as otherwise notified by Agency or the Client, and report any unsafe working conditions or practices; (h) it is free to enter into and perform the Works and the obligations under this Agreement, and has not entered and will not enter into any professional or other commitment which would or might conflict with the full and due rendering of the Works or otherwise interfere with its obligations under this Agreement; and (i) Supplier will provide a safe and healthy working environment for its staff and will comply with all applicable laws, rules and regulations. Supplier shall be responsible for complying with and for procuring that its servants, agents, suppliers and subcontractors comply with such obligations and will indemnify Agency against all costs, expenses and liabilities caused by any failure to do so.
5.2. Supplier shall not have any authority to incur any expenditure in the name of or for the account of Agency or the Client, or hold itself out as having authority to bind Agency or the Client.
5.3. In performing the Works, Supplier shall not do anything to disparage Agency, the Client (or either of its products or services) or otherwise do anything that is reasonably likely to bring Agency or the Client (or either of its products or services) into disrepute. Where applicable to the Works, Supplier agrees that it will represent the Client, its properties, products, services, employees and activities in a positive light in all public relations and media activities in relation to the engagement.
5.4. The provisions of this clause 5 shall survive any performance, acceptance or payment and shall extend to any substituted or remedial services provided by Supplier.
6. PAYMENT
In consideration of the provision of the Work, Agency agrees to pay to Supplier the sum(s) specified in the Purchase Order. Invoices shall be issued by Supplier no earlier than the Delivery Date(s). In the event that an invoice is issued earlier than the Delivery Date(s) then it shall not be deemed to have been received by Agency until the Delivery Date. Unless otherwise specified within the Purchase Order, payment will be made forty five (45) days after receipt of Supplier’s invoice, subject to the following: (a) a Purchase Order has been validly agreed in accordance with clause 3; (b) the Supplier has fully complied with its obligations under this Contract; and (c) Supplier has clearly quoted Agency’s purchase order number on the invoice and any accompanying advice notes and the packaging. The price specified in the Supplier Purchase Order shall be exclusive of all sales taxes (including but not limited to GST (which shall be added to Supplier’s invoices by Supplier at a rate ruling at time of delivery of the Work), duty, foreign sales tax and delivery). Notwithstanding the fact that withholding or other similar taxes properly payable by it (“Withholding”) are Supplier’s responsibility, Agency will, where it deems it appropriate, deduct such sums from the amount due to Supplier and pay such Withholding to the relevant tax authority. Supplier’s invoice must: (i) be a valid tax invoice for the purposes of GST legislation (or such equivalent legislation that may apply), (ii) identify the Work to which the invoice relates and where a multi-item invoice itemise individual items as stated in the Purchase Order, (iii) be sent to Agency’s company address as set out above or otherwise notified to Supplier or sent to Agency via email to the address specified within the Purchase Order; and (iv) must express all amounts due in the Invoicing Currency as stated in the Purchase Order. In the event that the amount invoiced, when converted from the Invoicing Currency to Agency’s domestic currency increases between the date of the Contract and the date of the invoice due to currency exchange rate fluctuations, Agency shall only be obliged to pay the lesser sum. In the event of the Supplier’s non-compliance with the terms of this clause 6, Agency shall be entitled to withhold all or part of payment until such time as Supplier complies. Further, Agency reserves the right to withhold payment of any disputed part of an invoice until the dispute is resolved, but will notify Supplier of any dispute within a reasonable period of time and will not delay or withhold payment of any part of the invoice that is not disputed.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. Work IPR: Subject to clauses 7.2 and 7.3, and except and to the extent of any usage rights and or restrictions to Agency’s and/or Client’s usage of the Intellectual Property Rights in the Work that are agreed by the parties in the Purchase Order ("Usage Limitations”), Supplier hereby assigns to Agency full and unrestricted ownership, with full title guarantee and free from all third party rights, the Intellectual Property Rights in the Work. Supplier shall, at the request of Agency, promptly do (or procure to be done) all such further acts and things and the execution of all such other documents as Agency may from time to time require for the purpose of securing the full benefit of all right, title and ownership in and to the Intellectual Property Rights and all other rights assigned to it (or the Client if Agency so directs) in accordance with this paragraph. Where Usage Limitations apply, then Supplier hereby agrees to provide to Agency (or the Client if Agency so directs) an irrevocable, worldwide and royalty free licence ("Licence”) to use the Work subject to the Usage Limitations and the Licence shall be amended as necessary to give effect to such Usage Limitations (for example if a territory is agreed the licence will not be granted on a ‘worldwide’ basis and will instead be for the agreed territory).
7.2. Background IPR:
7.2.1. Supplier Background IPR: Supplier or its licensors shall retain Intellectual Property Rights in all materials (i) utilised in the Work whose existence predates this Contract; or (ii) which were created after the commencement of this Contract, were not part of the Deliverables and which Supplier can demonstrate were developed independently from the Work, or (iii) identified as such in the Purchase Order, but shall grant to Agency a royalty-free, transferable licence to use those materials as part of the Work on a perpetual, worldwide, non-exclusive basis.
7.2.2. Agency Background IPR: the Agency shall retain all Intellectual Property Rights in and to Agency Materials. Agency hereby grants to Supplier a revocable, non-transferrable, non-sublicensable (unless otherwise approved by Agency), non-exclusive and royalty-free licence to use Agency Materials to perform the Work in accordance with this Contract. Upon completion of the Work, Supplier shall undertake to promptly return to Agency, without keeping any paper or digital copies of Agency Materials.
7.3. Third Party IPR: Supplier shall not utilise any third party Intellectual Property Rights ("Third Party IPR”) within the Work without the prior written consent of Agency and then only upon such terms of use as agreed with Agency in writing. Where Supplier is responsible for the engagement of actors, other performers or models, Supplier undertakes to obtain all necessary permissions and consents from such third parties on terms to be approved in writing by Agency.
7.4. Moral rights: Supplier hereby absolutely and unconditionally waives and/or assigns all moral rights in the Work in favour of Agency (or the Client if Agency so directs) and any respective licensees, assignees and successors in title. Where moral rights waivers and/ or assignments are precluded by the applicable law, Supplier hereby irrevocably consents to permitting Agency (or the Client if Agency so directs) and any respective licensees, assignees and successors in title, to infringe any and all moral rights that Supplier may have, or become entitled to, in any Work created as part of the Services (“Moral Rights Consent”). Supplier undertakes to procure moral rights waiver, assignment or Moral Rights Consent in the same terms signed by all individuals and other persons who may have any moral rights in the Work.
7.5. Promotional Exemption: Supplier may not reproduce the Work or use the Work for its own publicity purposes or use the Work in relation to any of its other customers or clients without prior written consent of Agency, which Agency may grant or withhold at its discretion.
8. WARRANTIES AND INDEMNITY
8.1. Subject to clause 7.1, Supplier warrants that Agency and the Client will be entitled to use the Work, including any Third Party IPR incorporated therein, to the full extent permitted under this Contract free from claims of any nature including without limitation any intellectual property infringement claims.
8.2. Supplier warrants that it will comply with all applicable legislation and recognised industry standards in developing the Work and that it has the necessary skills, qualifications, resources and all necessary consents, certifications and authorisations including (without limitation) any consents, certifications and authorisations required by law, to fulfil its obligations under this Contract.
8.3. Supplier shall indemnify Agency on demand and hold it harmless from any and all claims, liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred by Agency or, where appropriate, the Client, as a result of or in connection with: (a) any alleged or actual infringement of any third party's Intellectual Property Rights or other rights arising out of the Work; (b) any liability arising from Supplier’s breach of its warranties under this Contract or other failure to perform its obligations as required by this Contract; (c) any liability arising as a result of Supplier’s acts or omissions (or the acts or omissions of its Associated Persons); (d) any fraudulent activity committed by the Supplier; (e) any loss or damage (including damage to property or death or injury to person) which arises from the supply of defective, or defective supply of, Services or Deliverables by the Supplier; or (f) any intentional negligent act or omission of the Supplier or any of its Associated Persons relating to the supply of the Services or Deliverables.
8.4. Supplier warrants that it has the legal capacity, power and authority to become a party to this Contract.
8.5. The provisions of this clause 8 shall survive termination of this Contract, however arising.
9. LIMITATION OF LIABILITY
9.1. Agency shall not under any circumstances be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of business, depletion of goodwill, pure economic loss, loss of data or information, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract.
9.2. Without prejudice to clause 9.1 Agency’s total aggregate liability to Supplier in respect of all losses suffered by Supplier from, under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to 100% of the total Supplier Fees paid or payable for the Work under this Contract.
10. INSURANCE
Supplier shall hold insurance cover with a reputable insurer to an appropriate value to cover the liability assumed by it under this Contract. On request, Supplier will provide Agency with evidence of such insurance. In the event that Supplier fails to maintain such insurance, Agency shall be entitled to maintain such insurance and shall be entitled to reimbursement by Supplier for all associated premiums and costs.
11. CONFIDENTIALITY
Supplier undertakes, for the duration of this Contract and afterwards, to keep strictly confidential all confidential matters disclosed by Agency to Supplier relating to Agency, the Client or the Client’s products or services. Confidential matters will normally include (but not be limited to): Supplier’s engagement by Agency and the terms thereof, all details of the Work and the purpose of the Work, all details concerning Agency or the Client’s business, infrastructure, processes, services and products which are not already in the public domain, including Agency Materials, and all details concerning the Client’s advertising and marketing plans. Supplier undertakes to ensure that all Associated Persons and other third parties to whom it may be necessary to disclose confidential matters for the purposes of performing its obligations under this Contract undertake to keep such matters strictly confidential. The provisions of this clause 11 shall survive termination of this Contract, however arising.
12. TERM AND TERMINATION
12.1. The term of the Contract ("Term”) comes into effect on the date of Acceptance and shall continue until the Work has been performed in accordance with the Terms and the applicable Purchase Order; or until terminated in accordance with this clause 12.
12.2. Each Purchase Order shall specify the start and end dates of the Work ("Initial Term”).
12.3. Agency may terminate this Contract for any reason upon thirty (30) days prior written notice, provided that Agency pays Supplier for all Work undertaken in accordance with the Contract up to the date of such notice. Supplier shall have a duty to mitigate its costs and shall on request provide proof of expenditure for any demands for payments in this respect.
12.4. Without prejudice to any other remedies available to it by operation of applicable regulation or law, Agency may terminate this Contract immediately if: (a) Supplier is in breach of an obligation under this Contract and, if the breach is capable of remedy, fails to remedy said breach within five (5) days of receipt of a notice from Agency requiring remedy of such breach; (b) Supplier is in breach of its obligations under clause 11 of this Contract; (c) a petition is presented for an administration or winding up or bankruptcy order against Supplier or a receiver, administrative receiver or manager is appointed over any of Supplier’s assets or an order is made or a resolution passed for the winding up of Supplier or if Supplier enters into any composition with its creditors or if any of these appear to Agency to be likely to happen; or (d) for any other reason whatsoever it appears to Agency that Supplier may become unable to perform its obligations under this Contract or to perform them in the agreed upon time period.
12.5. In the event of termination pursuant to clause 12.4 Supplier will be liable for all additional costs incurred by Agency or by the Client in obtaining the Work from an alternative supplier, and all cancellation or other charges incurred and all other losses arising out of its breach of this Contract.
12.6. Termination of this Contract, howsoever arising, shall be without prejudice to the rights, remedies and duties of the parties prior to termination.
12.7. In the event of an occurrence set out in clause 12.4(c) resulting in Supplier failing to make any payment to any third party engaged to provide services or materials in respect of the Works, Agency shall have the right to pay direct to any such third party an amount equal to the sums owed by Supplier to such third party for work carried out by the third party for Supplier in relation to the Works, irrespective of any set-off or counterclaim Supplier may have or purport to have against such third party. Any such payment by Agency shall be deemed to be a payment by Agency to Supplier and shall be deducted from any payment or sum payment to Supplier, or, if no further payments are due, shall be a debt due from Supplier to Agency which will be paid by Supplier to Agency upon first demand in writing by Agency specifying the amount paid to the third party on Supplier’s behalf.
12.8. Upon termination of this Contract howsoever caused, Supplier shall: (i) cease all work under this Contract; (ii) deliver to Agency all Deliverables and all work-in-progress whether or not then complete. If Supplier fails to do so, then Agency may enter Supplier’s premises and take possession of them. Until they have been returned or delivered, Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and (iii) cease use of and return (or, at Agency’s election, destroy) all Agency Materials and confidential information pursuant to clause 11 in its possession or control.
13. CANCELLATION OR POSTPONEMENT
Agency may cancel, postpone, or amend the Service/Deliverables and/or schedule for delivery of the Services/Deliverables. In the event of any such cancellation, postponement, or amendment, Agency shall pay to Supplier: (a) any applicable cancellation fees expressly agreed and set out within the Purchase Order; and (b) any expenses or costs paid by Supplier that cannot be refunded and/or rescheduled (in the case of postponement) provided such expenses / costs were approved prior to being incurred and subject to Supplier providing substantiating documentation on request (together “Cancellation Costs”). Supplier shall take all reasonable steps to mitigate the cost or cancellation or postponement where possible.
14. FORCE MAJEURE
Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement (other than payment obligations) caused by a Force Majeure Event. The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event. The affected party may terminate this Contract if a Force Majeure Event lasts more than sixty (60) days and Agency shall pay Supplier for all Work undertaken in accordance with the Contract up to the date of such notice together with applicable Cancellation Costs. “Force Majeure Event” shall mean fire, earthquake, flood, pandemic/epidemic, strike, lockout, labour controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, any ordinance or law, action of any legally constituted authority, any judicial or executive order, or failure or delay of any transportation agency, laboratory, facilities house or any other furnisher of essential supplies, equipment, or other facilities, or other event outside the reasonable control of the Parties.
15. COVID 19 PROTOCOLS
Supplier shall provide a safe and healthy working environment for its staff and will comply with all applicable laws (including work health and safety laws, rules and regulations) (“Applicable Laws”). To the extent that Supplier is a production company, Supplier shall maintain, update, and adhere to at all times during the engagement, a ‘Covid Safety Plan’ which sets out in detail the policies and procedures that Supplier will follow to comply with Applicable Laws and current requirements for businesses operating during the COVID-19 pandemic. Should changes be made to the current requirements for businesses operating during the COVID-19 pandemic Supplier shall update the Covid Safety Plan without undue delay.
16. ANTI-BRIBERY AND CORRUPTION
16.1. Supplier shall ensure that, in relation to this Contract and general business practices, neither it, nor any of its Associated Persons, engage in any activity, practice or conduct which may constitute an offence under any applicable Anti-Corruption Laws. In particular, Supplier shall not, and will ensure that any Associated Persons do not offer, promise or pay to, or solicit or receive from any other person (including public and government officials) or company, any financial or other advantage which causes or is intended to cause another person to improperly perform their function or activities in order to secure or retain a business advantage. Supplier shall further ensure that, unless allowed or required by local law, neither it nor any Associated Persons, offer, promise or pay to any public government official any financial or other advantage in order to secure or retain a business advantage, including payment intended to induce officials to perform duties they are otherwise obligated to perform.
16.2. As part of its internal measures to ensure compliance under this clause 16 Supplier shall implement and maintain policies and procedures to assess the risk of, monitor, and prevent the breaching of Anti-Corruption Laws by itself or any of its Associated Persons. Such policies and procedures shall be made available for immediate inspection upon Agency’s written demand and failure to implement policies and procedures which are, in Agency’s sole discretion, adequate shall be deemed a material breach of this Contract.
16.3. Supplier shall, upon discovery, notify Agency immediately of any breach or suspected breach by any employee or Associated Person of this clause 16 and/or any Anti-Corruption Law.
17. AUDIT
Supplier shall keep detailed, accurate and up to date records, documentation and books of accounts (showing all payments made and goods/services provided by Supplier) in connection with this Contract during the previous six years. Supplier shall ensure that such records, documentation and books of accounts are sufficient to enable Agency to verify Supplier’s compliance with its obligations under this Contract. Supplier agrees that, upon request by Agency at any time during the term of this Contract and for six years after termination of this Contract, it will make available for audit by Agency and/or its third party representatives, Supplier’s books, records and other documentation relevant to its business activities conducted pursuant to this Contract. Should the audit reveal any failure from Supplier to comply with the provisions of this Contract, Supplier agrees to pay any and all costs of any such requested audit. In the event any deficiencies are identified, Supplier will take the steps necessary within an acceptable timeframe to correct any deficiency to Agency’s satisfaction.
18. RISK
18.1. Supplier shall deliver the Work at its own risk to the premises specified by Agency or such other location as set out in the Purchase Order. Where the Work cannot be delivered to a location specified in the Purchase Order, Agency may require the Work to remain on premises owned or controlled by Supplier. Risk in all Work shall remain with Supplier: (a) at all times in respect of any Work that is not delivered to premises specified in the Purchase Order; and (b) in respect of Work to be delivered to premises specified in the Purchase Order until such time as the Works have been safely delivered to those premises and an agent of Agency has signed a delivery note acknowledging receipt. Delivery of the Work is without prejudice to any right of rejection to which Agency may be entitled under the Contract or otherwise.
18.2. Where Supplier is responsible for risk in any Work and any such Work becomes damaged, lost or stolen, Supplier shall forthwith notify Agency of the same and, at Agency’s absolute discretion and free of charge, either replace such Work or refund any monies paid by Agency in respect of any such Work. Supplier shall also be liable for any direct or indirect losses, damages and/or liabilities arising as a result of any such loss, theft or damage.
19. DATA SECURITY
To the extent that Supplier is required to work with Agency Data this clause 19 shall apply.
19.1. Supplier shall not use Agency Data provided by Agency for any purpose other than the Work and will hold, and will ensure that all employees, agents, suppliers and subcontractors will hold, Agency Data in strict confidence and maintain and monitor a security programme that contains administrative, technical and physical safeguards designed to protect against anticipated threats or hazards to the confidentiality, integrity and security of, the unauthorized or accidental destruction, loss, alteration or use of, and the unauthorized access to Agency Data, to Agency’s standards of security as set out in any security policy provided by Agency to Supplier from time to time, and no less a standard than ought reasonably be expected from a first class supplier operating best data security practices.
19.2. Supplier shall use its best efforts to ensure that its information security program includes industry standard password protections, firewalls and anti-virus and malware protections to protect Agency Data stored on computer systems. Supplier shall notify Agency in writing immediately (and in any event within 24 hours) whenever Supplier reasonably believes that there has been any unauthorised access, acquisition, use, disclosure or destruction of Agency Data (“Security Breach”), and shall provide detailed information regarding the nature and scope of the Security Breach, the actual or potential cause of the breach, and the measures being taken by Supplier to investigate the breach, correct or mitigate the breach, and prevent future breaches.
20. PRIVACY
If Supplier processes any Personal Information on Agency’s behalf when performing its obligations under this Contract, the parties agree that:
(a) Supplier shall only process the Personal Information to the extent necessary to comply with its obligations and provide the Services under this Contract. Use of Personal Information for any other purpose, including without limitation for its own commercial benefit, is prohibited unless otherwise agreed to in writing by Agency;
(b) If Supplier receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Information or to its compliance with the Privacy Legislation, it shall immediately notify Agency and it shall provide Agency with full co-operation and assistance in relation to any such complaint, notice or communication;
(c) Supplier shall not process or transfer any Personal Information outside Australia without Agency’s prior written consent and then only upon such terms as Supplier reasonably requires to comply with the Privacy Legislation;
(d) Supplier shall notify Agency immediately if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Information;
(e) Supplier warrants that, having regard to the state of technological developments and the cost of implementing any measures, it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Information and against the accidental loss or destruction of, or damage to, Personal Information to ensure an appropriate level of security.
(f) Supplier shall process the Personal Information only in accordance with the terms of this Contract, any lawful instructions reasonably given by Agency from time to time and the Privacy Legislation.
21. GENERAL
21.1. This Contract represents the entire agreement between the parties and supersedes all previous contracts, representations or arrangements of any kind between the parties relating to its subject matter. No addition to or modification of these terms shall be binding on the parties unless made by a written instrument which the parties mutually agree in writing.
21.2. Except as agreed by Agency in writing, no element of the performance of this Contract may be sub-contracted by Supplier and Supplier may not assign or otherwise transfer any rights and/or obligations under these terms without Agency’s prior written consent. Supplier will not, as a result of any approved subcontracting arrangement, assignment or transfer, be relieved from the performance of any obligation under this Agreement. Supplier is liable for all acts and omissions of its employees, contractors, agents, suppliers and any subcontractor as though they were the actions of the Supplier itself.
21.3. Nothing in this Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purposes. Supplier shall act as principal in all dealings with third parties connected with performance of its obligations under this Contract. No party shall have authority to act as agent for, or to bind the other party in any way.
21.4. A waiver of any right under this Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
21.5. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
21.6. Subject to clause 21.7 and anything agreed to the contrary in the Purchase Order, this Contract shall be governed by and constructed in accordance with the laws of the state of Victoria and the Commonwealth of Australia and all disputes arising under this Contract shall be subject to the non-exclusive jurisdiction of the courts of Victoria.
21.7. Notwithstanding the provisions of clause 21.6, Agency shall be entitled to enforce its rights under this Contract subject to the laws, and in the courts of, the jurisdiction in which the Work is delivered.
21.8. It is agreed by Agency and Supplier that Supplier shall have the status of independent supplier and shall not be entitled to any pension, bonus or other fringe benefits from Agency and that Supplier shall be responsible for all income tax liabilities and national insurance or similar contributions in respect of fees payable under this Contract. Accordingly, Supplier agrees to indemnify and keep indemnified Agency from and against all and any claims that may be made by the relevant authorities against Agency in respect of income tax or national insurance contributions (whether primary or secondary) relating to payment made by Agency in respect of Supplier’s services provided under this Contract. Nothing in this Contract shall constitute a partnership between Supplier and Agency.
21.9. Supplier shall not make any press announcement in respect of the Work or otherwise in relation to any arrangement pursuant to this Contract without prior written approval of Agency.
Last updated 9 February 2024 (V2).
A downloadable PDF version of the Dentsu AU Purchase Order Terms and Conditions can be found here (together with previous versions).