DENTSU AU TERMS OF BUSINESS
1.1 These terms of business, together with the letter of engagement between Agency and Client and where applicable, any Specialist Services terms (“Agreement”) apply to the provision by Agency to Client of the Services as described in each Statement of Work. In the event of any conflict or inconsistency, the following documents shall prevail in the following order: (i) Statement of Work; (ii) Specialist Services terms; (iii) these terms of business; and (iv) the letter of engagement.
1.2 This Agreement may also be used where Client Affiliates wish to order, and/or Agency Affiliates wish to supply, services under a direct contractual relationship. If so required, the relevant Affiliate(s) shall execute a Statement of Work in their name(s), which shall constitute a separate legal agreement between the parties to that Statement of Work incorporating the terms of this Agreement (with references to a ‘party’, the ‘parties’, ‘Agency’ and/or ‘Client’ in this Agreement being interpreted accordingly), and any and all rights, liabilities, obligations and/or claims arising out of or in connection with such Statement of Work shall be solely between the parties to it.
2. DEFINITIONS AND INTERPRETATION
2.1 Terms not defined in these terms of business will have the meanings set out in the letter of engagement and applicable Statement of Work. In addition, the following terms shall have the following meanings:
“Affiliate” means, in relation to either party, any of the following: (a) companies directly or indirectly belonging to or controlled by that party through management appointment or otherwise; (b) companies directly or indirectly belonging to or controlled by companies which directly or indirectly own or control that party; and (c) any companies having entered into an affiliation agreement with that party or the above-referred companies. “Control” means the power of an entity to secure that the affairs of another are conducted in accordance with its wishes and "controlled" shall be construed accordingly;
“Agency” means the dentsu agency set out in a letter of engagement and/or a Statement of Work;
“Agency Data” means all (i) data and databases owned by or licensed to Agency or Agency Affiliates; (ii) data developed, created, generated or derived by Agency or Agency Affiliates in relation to or as a by-product of the Services or in connection with any tools, methodologies, know-how and techniques used by Agency in the performance of this Agreement; (iii) performance or campaign results relating to the Services within Agency accounts; and (iv) Agency’s media rates within Agency or Client accounts. For the avoidance of doubt, Agency Data does not include Third Party Materials or Client Data;
“Agency Materials” means Materials that are pre-existing and used by (or licensed to) Agency or Agency Affiliates in connection with the provision of the Services and/or developed, created or acquired by or on behalf of Agency or Agency Affiliates independent of its performance of the Services and Deliverables. For the avoidance of doubt, Agency Materials includes Agency Data but does not include Client Materials or Third Party Materials;
“Agent Services” means Services to procure and manage services in the name and on behalf of Client including but not limited to:
(a) the sourcing, negotiation and management of television, radio, print, cinema, online and event sponsorship and promotional opportunities for Client;
(b) partnerships and promotions and/or production in conjunction with Media Owners, other brands, talent and third parties;
(c) the procurement of third party technology, data or platforms;
including all associated procurement of third party rights, permissions, consent and/or clearances;
“Booking” means a booking for media space (and related costs), third party services or other approved and committed expenditure incurred by Agency;
“Charges” means (i) the Fees; (ii) Third Party Expenditure; and (iii) any other costs, levies and/or commissions and expenses payable in connection with the Services;
“Client” means the client set out in a letter of engagement and/or a Statement of Work;
“Client Data” means data directly or indirectly prepared and provided to Agency by Client in connection with the Services, including Client Personal Information. For the avoidance of doubt, Client Data does not include Third Party Materials or Agency Data;
“Client Materials” means Materials provided by or on behalf of Client to Agency (or provided to such third parties as Agency may nominate to receive such Materials from time to time, including without limitation Media Owners), in connection with this Agreement (including without limitation Client's name, logo and trade marks, keywords requested by Client, and any third party materials provided by Client to Agency in connection with this Agreement), including Client Data;
“Deliverables” means the work products and Materials prepared specifically for Client by Agency pursuant to this Agreement, as described in each Statement of Work;
“Fees” means the fees invoiced and payable by Client as set out in each Statement of Work;
“Gross Media Expenditure” means the amount of a Media Owner’s charges for Bookings prior to deducting Standard Agency Commission;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;
“Media Owner” means a third party who sells media space and/or time and related services to Agency;
“Net Media Expenditure” means the amount of a Media Owner’s charges for Bookings after deducting Standard Agency Commission;
“Personal Information” means personal information as defined in the Privacy Act;
“Privacy Act” means the Privacy Act 1988 (Cth);
“Privacy Breach” means any unauthorised or accidental access to, or disclosure, alteration, loss, or destruction of, personal information;
“Services” means the services to be provided by Agency to Client pursuant to this Agreement, as described in each Statement of Work;
“Standard Agency Commission” means the standard commission of Gross Media Expenditure from a Media Owner in relation to certain media (“Commissionable Media”) that accredited media agencies are entitled to, which is usually recognised as a discount on the invoices the Media Owner provides to the media agency;
“Statement of Work” or “SOW” shall mean any SOW or media plan/schedule, work order, project statement, purchase order, estimate or quote signed by both parties or otherwise approved in writing. There may be one or more SOWs under this Agreement; and
“Third Party Materials” means Materials owned by a third party (excluding, for the avoidance of doubt, Agency Materials and Client Materials).
3. AGENCY’S ROLE
3.1 Agency will provide the Services: (a) with professional care and skill; and (b) in accordance with the terms of this Agreement and requirements agreed in a SOW.
3.2 The Services may include or be related to the provision of Agency specialist products and services including, but not limited to: (i) specialist inventory management; (ii) rights management; (iii) content finance; (iv) programmatic services (provided on the terms set out here www.dentsu.com/au/en/programmatic-terms); and (v) Agyle principal buying and/or other media savings programmes involving capital expenditure; and (vi) Merkury products and services (provided on the terms set out here www.dentsu.com/au/en/merkury-terms) and/or access to other specialist tools and platforms, (“Specialist Services”). Client acknowledges that given their nature such Specialist Services shall be provided in accordance with the relevant terms and conditions and SOWs agreed between the parties for such Specialist Services (and in certain cases may not be governed by this Agreement). In the event of any conflict or inconsistency, relevant documents shall prevail in the order set out in clause 1.1.
4. CLIENT RESPONSIBILITIES
4.1 Client will cooperate with Agency in all aspects relating to the Services, including, without limitation: (i) giving Agency clear briefings, providing Client Materials and assistance and/or evidence where required in relation to Client Materials or its products in a timely manner; (ii) providing Agency with the requisite level of access to Client accounts and any associated data and information, Client facilities, and employees, as reasonably necessary for Agency to provide the Services; and (iii) promptly providing all applicable approvals, instructions and Client deliverables or inputs.
4.2 Client will be responsible for taking all steps necessary for it to access, receive and utilise the Services and the Deliverables (including but not limited to legal review of the Deliverables necessitated by Client’s specific business sector/industry legislation and/or regulations).
4.3 To the extent that Agency’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, its agents, subcontractors, consultants or employees (“Client Delay”), such failure or delay in performance on the part of Agency shall not constitute a breach of this Agreement and Agency shall be entitled to its Fees and shall not be liable for any costs, charges or losses sustained or incurred by Client that arise directly or indirectly from such failure or delay. Where scheduled resource are unable to carry out planned Services as a result of Client Delay, Agency may charge Client for downtime of such scheduled resource. Where the Fee is fixed, Agency may renegotiate the Fee to the extent that additional resource is required as a result of such Client Delay.
5. PERFORMANCE OF THE SERVICES
5.1 The parties shall set out Services relevant to campaigns or specific engagements in Statements of Work.
5.2 In the provision of the Services, Agency may engage third parties such as Media Owners, production suppliers and other vendors from time to time (“Third Party Vendors”). Agency will seek Client’s prior approval of, and Client will be liable for, all costs, charges, commissions and/or expenses associated with any Booking placed with Third Party Vendors or in house production (“Third Party Expenditure”) that is approved by Client. Such Third Party Vendors are not Agency’s subcontractors.
5.3 Agency will seek Client’s prior approval of any creative treatments, including proposed scripts, storyboards, copy, layouts, design, artwork, proposed marketing activity, and Client’s approval of such creative treatments will be Agency’s authority to prepare the draft Deliverables. Agency will seek Client’s prior approval of any draft Deliverables and such approval will be Agency’s authority to issue such Deliverables as final. If Client does not approve of any matter requiring approval it shall promptly notify Agency of its reason for disapproval.
5.4 Client may request Agency to cancel, postpone or amend any Bookings. Agency will use reasonable efforts to comply with any such request provided that Agency is able to do so within its contractual obligations to third parties.
5.5 In the event of any such cancellation, postponement (for any reason), or amendment, Client shall promptly pay to Agency: (a) Charges incurred in relation to the cancelled, postponed or amended Bookings; (b) any charges, expenses or additional costs paid or payable by Agency in relation to the cancellation, postponement or amendment (including without limitation retrospective rate adjustments, cancellation or postponement charges, or lower discounts from third parties); and (c) any cancellation fee specified in a SOW (together, “Cancellation Charges”).
5.6 Where a Media Owner levies late copy charges against Agency and such charges do not result from the negligent or wilful act or omission of Agency, Client shall immediately upon presentation of an invoice reimburse the amount of such late copy charges to Agency.
5.7 While Agency shall use standard industry practice: (i) in the preparation of any estimated and target figures and/or position (including those related to search engine optimisation or management); (ii) in the provision of conclusions and recommendations; (iii) to prevent the display of Client advertising on websites of, or in proximity to content that is of, a pornographic, defamatory, obscene or illegal nature (“Objectionable Advertising”); and (iv) to prevent any fraudulent traffic in relation to Client advertising, the outcomes are ultimately beyond the control of Agency. No warranties are given by Agency as to: (A) the accuracy of such estimates or targets (including target positions), such figures actually being met or user interactions with advertising once it appears; (B) the prevention of Objectionable Advertising (Agency will promptly take steps to remove any Objectionable Advertising upon becoming aware of the same); or (C) the prevention of fraudulent traffic in relation to Client advertising, and no liability shall attach to Agency in respect of any losses suffered in connection with the foregoing or in respect of Client’s reliance on any conclusions or recommendations of Agency. Agency shall not be responsible for the impact of changes made to Client’s Materials and or Deliverables by Client or other third parties.
5.8 As part of Agency’s commitment to maximising media value for Client, Agency will pursue compensation complaints for such issues as reproduction and positional problems. However, Agency can give no guarantee as to the outcome of such negotiations and Client must pay in full and by the due date for Bookings made regardless of any subsequent compensation achieved.
5.9 Where the Services involve Agency editing or managing the content of Client’s social media accounts (“Social Account(s)”) save for where Agency has been negligent in the provision of the Services, Agency shall not be liable to Client for any loss or damage whatsoever arising from any Agency posts, alterations or deletions to content on Client’s social media accounts (or the failure to carry out posts, alterations or deletions as applicable) and Client’s remedies in this respect shall be limited to the deletion or alteration of the relevant post within one working hour of Client’s request (where Client is not reasonably able to do so itself within that time). Agency’s social media monitoring and account management is not continual and is only provided during the contracted hours. Client shall therefore undertake its own regular monitoring, editing, and general “housekeeping” of those accounts as a matter of good practice, and shall not delay in removing or editing any content Agency has posted that Client does not wish to be displayed on such account. Client agrees that regular monitoring and prompt removal of such content is (without limitation) necessary and reasonable step to mitigate any losses and damage arising from or connected to such content.
5.10 Agency will provide suitable personnel with appropriate levels of experience and seniority to perform the Services (but for the avoidance of doubt, levels of resource or individual personnel identified in any staffing plan related to any SOW are informational only and may be substituted by Agency in its sole discretion).
5.11 Where Agency procures or manages media using a Client owned account, rather than procuring or managing media using an account owned by Agency: (i) Client shall provide all consents, authorisation and information necessary for Agency to access Client account in order to procure or manage media in Client’s name, or as may otherwise be necessary for Agency’s performance of this Agreement; and (ii) Agency shall be principal for payment in respect of media purchased directly or indirectly from a Media Owner in Client’s name and on Client’s behalf unless otherwise agreed. Client agrees that Media Owner may recognise the media spend as Agency media spend and consents to Agency’s retention of Agency benefits associated therewith. To the extent that Client has ownership or rights over any account and associated data, Agency may use the data in connection with Agency’s advertising services (including, but not limited to, business intelligence, enhancing Agency’s products and services, marketing optimisation, and trend analysis) provided use of data in connection with Client account is on an aggregated and anonymised basis.
5.12 Client shall indemnify Agency in respect of any and all claims, demands, actions, losses, expenses, liabilities, judgments, settlements, damages and costs (including all interest, penalties and professional costs and expenses) of any kind which may be incurred, suffered, brought or threatened against Agency or its Affiliates arising out of or in connection with any risk related to a course of action that Agency has advised or recommended Client against but that Client elects to proceed with notwithstanding such advice.
5.13 Where completed Deliverables are subject to acceptance criteria detailed in a SOW (“Acceptance Criteria”) the following approval process shall apply when assessing whether completed Deliverables have met the Acceptance Criteria, unless otherwise agreed in writing.
Agency shall submit each completed Deliverable to Client and, at Client’s request, demonstrate its functionality. Client is responsible for reviewing and testing all Deliverables in accordance with the SOW. Client shall promptly provide Agency with written notification of acceptance for each Deliverable. Client’s failure to reject a Deliverable, as set out below, will be deemed acceptance.
Client shall notify Agency within 7 days of receiving a completed Deliverable if that Deliverable does not objectively and materially meet the Acceptance Criteria setting out the deficiency in detail. Agency shall use commercially reasonable efforts to resolve the deficiency and shall resubmit the Deliverable to Client without undue delay (“Resubmission”). Client shall assess the Resubmission in accordance with the foregoing process.
If, following two (2) Resubmissions the Deliverable remains materially deficient against the Acceptance Criteria Client may; (i) reject the Deliverable; or (ii) terminate the relevant SOW on written notice.
5.14 Where a SOW sets out assumptions or dependencies and such items cannot be relied upon then Agency is not liable for delays, costs or inability to provide Services and/or Deliverables which rely on such assumptions or dependencies. Agency may issue a change order request to amend the scope, Charges or duration of Services and/Deliverables under a SOW where assumptions or dependencies cannot be relied upon.
6. FINANCIAL PROVISIONS
6.1 In consideration of providing the Services, Client shall pay to Agency the Charges in accordance with each SOW.
6.2 Amounts stated are exclusive of applicable tax, which shall be payable by Client in addition to the relevant amounts at the prevailing rate.
6.3 The Charges shall be invoiced by Agency and payable by Client in accordance with the applicable SOW, in full, without set-off, counterclaim or withholding, by bank transfer into the bank account nominated by Agency in the currency specified in the invoice.
6.4 Unless otherwise specified, Agency shall be entitled to issue its invoices on an ad hoc basis and invoices will be payable within 30 days of the date of the invoice. All late payments shall, without prejudice to Agency’s other rights and remedies, be subject to interest at the rate of 2% per annum above the base lending rate of Agency’s principal lending bank from the due date until the date of payment in full. Client shall also pay to Agency costs and expenses, including reasonable fees, incurred in collection of any late payments. Agency reserves the right to suspend all Services in the event of late payment.
6.5 For some aspects of the Services that are provided by third parties, those third parties may require an advance or down-payment to secure a Booking. Under such circumstances, Client will approve the Booking and Agency will issue an invoice covering the advance or down-payment for immediate settlement by Client.
6.6 Unless otherwise specified in a SOW, on each anniversary of the start date specified in the SOW the Fees will adjusted in accordance with the consumer price index (CPI) average for the preceding twelve months.
6.7 Unless otherwise specified, all Third Party Expenditure incurred by Agency in pursuance of the fulfilment of the Services shall be charged to Client, together with any approved Fees and/or costs, subject to Client's prior approval of the applicable amounts, including without limitation: (a) data, research, reports and tools; (b) any Fees, costs or charges incurred for production work required in connection with the Services including, without limitation, artwork, engravings, electros, photography, talent fees, recordings (including for test purposes), the services of performers, block-making, type-setting, typography and print work; (c) travel costs; (d) production costs involved in the preparation of packaging, labels and cartons, exhibition and display Material, booklets, sales letters, product publicity and other promotional Material or services as may be prepared or suggested by Agency; (e) legal or other professional disbursements incurred in respect of the Deliverables including but not limited to costs incurred in undertaking trade mark, domain name or other searches, enquiries, registrations, renewals and clearances; and (g) despatch and carrier costs.
6.8 Where a surcharge is levied by a supplier against Agency due to late payment and this results from late payment by Client, Client shall (without prejudice to Agency’s other rights and remedies) immediately upon presentation of an invoice reimburse to Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.
6.9 Agency does not accept liability for risk posed by fluctuations in currency exchange rates and such risk shall be borne by Client. Where the parties agree that Agency incurs some or all of its costs with a Third Party Vendor in one currency (“Original Currency”) and invoices Client in a currency other than the Original Currency (“Invoicing Currency”), Agency may convert such costs from the Original Currency to the Invoicing Currency and the parties agree that: (i) any such costs shall be converted from the Original Currency to the Invoicing Currency according to Agency’s selected industry rate of exchange between the Original Currency and the Invoicing Currency on the date of invoice, or, where the invoiced item relates to an item of previous expenditure by Agency, the date on which such expenditure was incurred; (ii) the amount of the costs payable pursuant to any invoice when converted to the Invoicing Currency may be greater than the amount of the costs quoted or agreed with Client due to fluctuations in Agency’s selected industry rate of exchange, and Client agrees to pay the difference between these respective amounts to Agency in accordance with the terms of this Agreement; and (iii) if the amount of the costs payable when converted to the Invoicing Currency increases between the date of invoice and the date on which Client pays the amounts due under the invoice due to fluctuation in Agency’s selected industry rate of exchange, then Agency may invoice Client for the difference and Client agrees to pay the difference to Agency in accordance with the terms of this Agreement.
6.10 Client acknowledges that Agency shall be entitled, at its own cost, to obtain insurance cover on the Charges incurred in connection with this Agreement. If: (a) Client does not meet all of its payment obligations under this Agreement; or (b) insurance cover is unavailable or inadequate and Client is unwilling or unable to provide advance payment or a form of security to the satisfaction of Agency, then Agency will be entitled to: (i) cancel existing Bookings and/or other expenditure and Client shall pay all associated Cancellation Charges; (ii) automatically suspend its obligations in relation to its provision of the Services, including Bookings and committing to other expenditure under this Agreement; and/or (iii) terminate this Agreement by giving Client at least 7 days’ written notice.
6.11 Where Agency is engaged on a retainer basis, agreed resource hours not used by Client in accordance with the SOW will not be refunded or roll over to future weeks, months, or sprints (as applicable) unless otherwise agreed in writing.
6.12 Where the Fees include prepaid hours of service (“Time Banks”) the Time Banks must be used within twelve (12) months of purchase unless otherwise agreed in writing. Any work conducted under a Time Bank will be prioritised in accordance with Client instructions and is charged on a per hour basis, in accordance with Agency’s rate card, and debited from the Time Bank accordingly. Whilst every effort is made to provide an accurate estimate of the hours required to deliver a task, an estimate does not represent a quote and the time required to deliver the task may vary significantly. If a Time Bank is exhausted, Agency shall provide Client with the option of stopping work or continuing the work on a time and materials basis until a new Time Bank is agreed in writing. Client agrees to pay for any time incurred between the exhaustion of the previous Time Bank and the commencement of the new Time Bank. Pre-paid Time Bank’s are non-refundable unless otherwise agreed in writing.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Subject to clauses 7.2 and 7.3, all Intellectual Property Rights in and to the Deliverables, other than Intellectual Property Rights in and to Third Party Materials, will vest in Agency upon creation. Such Intellectual Property Rights in and to the Deliverables shall be assigned by way of present assignment of present and future rights upon payment in full by Client of applicable Charges. To the extent that any applicable Charges remain outstanding, Agency grants to Client a revocable, worldwide and royalty free licence to Client to use the Deliverables in accordance with this Agreement and any reasonable direction of Agency. Agency shall retain all ownership of any Materials developed in connection with any SOW that do not constitute Deliverables.
7.2 As between the parties, all Intellectual Property Rights in and to Client Materials shall remain vested in Client. Client hereby grants to Agency an irrevocable, worldwide, sub-licensable, transferrable, non-exclusive and royalty-free licence to use Client Materials to perform the Services in accordance with this Agreement. Client is solely responsible for all consents and licences required for the use of Client Materials in accordance with this Agreement and their compliance with applicable laws.
7.3 As between the parties, all Intellectual Property Rights in and to Agency Materials shall remain vested in Agency. To the extent that any of the Deliverables incorporate or embody Agency Materials, Agency grants to Client a worldwide royalty-free, non-transferable (save as permitted by this Agreement), non-exclusive licence to use such Agency Materials to facilitate and/or enable the use by Client of the applicable Deliverable(s) in accordance with this Agreement.
7.4 Agency shall, at Client's cost, use reasonable endeavours to obtain for Client all usage rights in Third Party Materials as agreed by the parties at the time such Material is commissioned. Save to the extent that the applicable Intellectual Property Rights in and to the Third Party Materials are assigned to Client, such Intellectual Property Rights shall remain vested in the applicable third party. Client is responsible for all other clearances.
7.5 Agency shall use reasonable endeavours to obtain waivers of all moral rights in and to the Deliverables.
7.6 Client shall only use the Services and Deliverables in accordance with any usage restrictions and licence conditions specified by Agency or third party licensor. Save as otherwise expressly permitted by this Agreement or otherwise agreed in writing, Client shall not copy, reproduce, modify, alter, make derivative works of, reverse engineer, decompile or disassemble any Agency Materials or Third Party Materials or modify or remove any proprietary notices or legends placed on or within Agency Materials or Third Party Materials. If Client wishes to use the Deliverables outside of the agreed territory, after the period of time or outside the purposes set out in the SOW, then such use shall be subject to mutual agreement of further Charges by the parties and any required clearances and associated payments (including but not limited to various union and guild agreements relating to the use of actors, musicians and other performers in advertising).
7.7 Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, non-exclusive, and royalty-free licence to use the Deliverables for the purpose of promoting its own business (for example, but without limitation, on its corporate websites and in entering Materials for industry awards).
7.8 Notwithstanding clause 7.2, to the extent that Client has ownership or rights over Agency Data or data which results from the Services, Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, transferrable, non-exclusive, and royalty-free licence (or sub-license, as the case may be) to use Agency Data and the data which results from the Services to perform the Services in accordance with this Agreement and, provided use of the data which results from the Services is on an aggregated and anonymised basis, for any other purposes arising out of or in connection with Agency's advertising services (including, but not limited to, business intelligence, enhancing Agency’s products and services, marketing optimisation, and trend analysis).
8.1 Save as expressly set out in this Agreement and to the extent permitted by applicable laws, all conditions, warranties or other terms on the part of Agency which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded by Agency, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
8.2 Agency will not be liable for delays or errors in any of the Deliverables as published: (i) unless and to the extent that this is caused by its breach of this Agreement; or (ii) if the Deliverables have been approved by Client.
8.3 Agency warrants that the use of Deliverables, excluding any Client Materials, in accordance with this Agreement shall not infringe the Intellectual Property Rights of any other person.
8.4 Save as expressly agreed otherwise under this Agreement or in writing, Agency makes no warranty and is not responsible for any third party content (including without limitation user-generated content or Material) published on or in platforms, services or channels operated by or on behalf of Client. Without limitation, Agency is not responsible for: (a) the accuracy of such content; (b) the compliance of such content with applicable laws, regulations, guidelines or codes of practice or Client's policies or requirements; (c) reporting any matters which by virtue of applicable laws are required to be reported to authorities; or (d) any third party claim in relation to such content, including without limitation a claim that such content infringes third party rights, including without limitation intellectual property, data protection and privacy rights, or a claim that such content is defamatory, libellous, slanderous or seditious.
8.5 Client warrants that:
a. Client Materials and all other information supplied to Agency by or on behalf of Client in relation to Client’s products and services before and during the Term will be true, accurate, complete, up-to-date and not misleading or deceptive;
b. Client Materials and the use of such Client Materials in accordance with this Agreement shall comply with applicable laws, regulations, guidelines or codes of practice and shall not infringe the Intellectual Property Rights of any other person;
c. it has obtained all necessary rights, licences and consents to allow Agency to use Client Materials in accordance with this Agreement;
d. it has in place suitable and compatible equipment, networks and software to receive the Deliverables and the Services;
e. Client Materials and any equipment or networks which connect to Agency’s systems do not contain software viruses or any other computer code, files or programmes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
8.6 Without prejudice to Client's responsibility and Agency's other rights and remedies, Agency may request that Client provides at Client’s cost a formal written opinion on the lawfulness of any Client Materials from an appropriately qualified and experienced independent legal practitioner.
8.7 Notwithstanding clause 8.6, and without prejudice its other rights and remedies, Agency or a Media Owner may refuse to perform Client's request if, in that party’s opinion, such action may result in violation of any applicable laws, regulation, guideline or code of practice. Client shall remain responsible for payment to Agency of the Charges.
9.1 Agency shall indemnify and hold harmless Client from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Client arising out of (and only to the extent of) a breach by Agency of clause 8.3.
9.2 Client shall indemnify and hold harmless Agency from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Agency arising out of (and only to the extent of) a breach by Client of clauses 7.6, 8.5 and/or (where Client is the Data Supplier) clause 15.
9.3 The party entitled to an indemnity under this Agreement shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.
9.4 If the Services or Deliverables, or any part thereof, are held to infringe a copyright or other intellectual property right, or in Agency’s sole judgment, are likely to infringe a copyright or other intellectual property right, Agency (at Agency’s sole option) may (i) procure for Client the right to continue the applicable Services for the term specified in the applicable SOW; (ii) replace or modify the Services or Deliverables with alternative, non-infringing products or services; or (iii) cease providing the Services and refund to Client a pro-rata portion of any pre-paid Fees for the affected Services.
10. TERM AND TERMINATION
10.1 The term of this Agreement (“Term”) comes into effect on the date the letter of engagement is signed and shall continue until terminated in accordance with this clause 10.
10.2 Each SOW under this Agreement shall come into effect on the start date and continue until the end date as specified in the SOW (“Initial Term”). If a SOW indicates that the SOW will Auto Renew then, following the end date of Services for that SOW, such SOW will continue for successive terms equal to the length of the Initial Term (each a “Renewal Term”) unless a party to the SOW provides written notice that it does not want to renew the SOW no less than 30 days’ prior to the expiry of the then current Initial Term or Renewal Term. Termination or expiry of a SOW shall not serve to terminate the Agreement or any other SOW.
10.3 Agency may terminate the Agreement for convenience by providing Client not less than three (3) months’ written notice. The Agreement will automatically terminate upon expiry of such notice. To the extent any SOWs remain in effect upon expiry of such notice, each such SOW shall continue in effect for its full duration.
10.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement and all SOWs with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of any term of this Agreement (which includes non-payment of any invoice by its due date) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or (ii) the other party has entered (or can be evidenced to be proposing or at risk of entering) a bankruptcy, receivership, insolvency, administration, insolvency related creditor arrangement, liquidation, or other similar proceeding, whether itself or at the instigation of a third party, and including any similar occurrence or proceeding that has equivalent effect in any jurisdiction. If a party has a right to terminate SOWs pursuant to this clause, it may choose either to terminate only the SOW in question or the Agreement (including all SOWs) in its entirety.
10.5 Agency may terminate this Agreement (including all or any or any part of a Statement(s) of Work) immediately on written notice to Client if it believes that the continued provision of the Services may adversely affect its goodwill, reputation or industry standing.
10.6 Upon termination of any SOW, all Charges for Services provided and expenditure committed as at the date of termination of the SOW will be payable by Client to Agency.
10.7 Except as otherwise permitted by this Agreement, upon termination of this Agreement:
(a) Agency shall: (i) cease all use of and access to Client Data; and (ii) promptly destroy all Client Data and copies of Client Data, except for copies retained through ordinary backup measures and as required by law;
(b) Client shall: (i) cease all use of and access to Agency Data; and (ii) promptly destroy all Agency Data and copies of Agency Data, except for copies retained through ordinary backup measures and as required by law; and
(c) all Charges in relation to Services provided and expenditure committed as at the date of termination will be payable by Client to Agency.
10.8 Termination of this Agreement or any SOW shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breaches of the Agreement which existed at or before the date of termination. For the avoidance of doubt, on termination of this Agreement or any applicable SOW, ideas or materials created by Agency and rejected by Client prior to the date of termination shall remain Agency's property.
11.1 Nothing in this Agreement seeks to limit or exclude liability for death or personal injury caused by negligence, for fraud or for any other type of liability that cannot be limited or excluded under applicable laws.
11.2 To the maximum extent permitted by law, neither party shall be liable to the other for any:
a. loss of actual or anticipated income or profits;
b. loss of contracts or business;
c. loss of reputation or goodwill; or
d. special, indirect or consequential loss or damage of any kind,
howsoever arising in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise, and including under the indemnity obligations under this Agreement. The liability of a party in connection with this Agreement will be reduced to the extent that it is caused by a breach or default under this Agreement by the other party.
11.3 Save in relation to the confidentiality obligations under clause 14, to the maximum extent permitted by law, the maximum aggregate liability of Agency to Client under or in connection with this Agreement, whether in contract, tort (including negligence) breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise (including under the indemnity obligations under this Agreement), shall not exceed; (a) an amount equal to 100% of the Fees paid or payable by Client to Agency during the 12 months immediately preceding the relevant claim under the SOW to which the claim arises (excluding, for the avoidance of doubt, any third party expenditure paid or payable by Agency pursuant to this Agreement) or (b) to the extent that the claim does not relate to a specific SOW, $100,000.
Client agrees that it will not either on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during the Term and for a period of twelve months thereafter solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of Agency (or Agency Affiliates) who has been engaged in connection with the performance of the Services.
13. ASSIGNMENT AND SUB-CONTRACTING
13.1 Agency may: (a) sub-contract any or all of its obligations under this Agreement provided that Agency shall remain at all times liable for the performance of this Agreement; and (b) assign, sublicense or otherwise transfer any or all of its rights or obligations under this Agreement to any Agency Affiliate.
13.2 Save as set out in clause 13.1, no assignment, subcontracting or sublicensing is permitted.
14.1 Each party undertakes that it will keep confidential and not at any time hereafter use or disclose to any person, except: (i) to its professional representatives and advisors; (ii) in the case of Agency only, to third parties required for Agency to perform or deliver Services, including but not limited to its Agency Affiliates, sub-licensees or sub-contractors (including, without limitation, business process outsourcing services providers); or (iii) as may be required by law or any legal or regulatory authority, the terms and conditions or existence of this Agreement or any trade secrets, business ideas, market opinions, media rates, information and/or Material concerning the business or affairs of the other party (or any other information of a confidential nature which is designated as such by such other party) which may have or may in the future come to its knowledge (“Confidential Information”).
14.2 Neither party shall use Confidential Information except for the performance of or as licensed under this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the other party.
14.3 These confidentiality obligations shall not apply to any Confidential Information that: (i) is or becomes part of the public domain through no fault of the receiving party; (ii) can be shown by the receiving party to the disclosing party's reasonable satisfaction to have been known to the receiving party prior to the disclosure by the disclosing party without any obligation to keep such Confidential Information confidential; (iii) is required by law or any governmental or other regulatory authority to be disclosed or by the order of a court of competent jurisdiction; or (iv) is independently developed by the receiving party without any breach of this Agreement as evidenced by written records.
15. DATA PROTECTION
To the extent that one party ("Data Supplier") provides the other party ("Data Receiver") access to any Personal Information pursuant to this Agreement:
15.1 The Data Supplier represents and warrants that:
(a) it has notified the individuals of the circumstances and purposes of collection and has obtained such permissions and consents required to enable both parties to use, disclose or transfer such Personal Information (including disclosure and transfers to third parties as required to provide the Services and transfers to territories outside of the territory where the Services are being provided) in connection with the Services and any other purposes as stipulated in this Agreement; and
(b) if the Data Supplier receives any requests as described in 15.2(c) below which may be relevant to the Data Receiver, it shall notify the Data Receiver of any such requests in a timely manner.
15.2 The Data Receiver agrees that it shall:
(a) process the Personal Information in accordance with Data Supplier’s reasonable instructions;
(b) provide reasonable assistance to Data Supplier to respond to a data subject's request to correct an error or omission in Personal Information or to withdraw consent to the collection, use or disclosure of Personal Information under this Agreement;
(c) provide reasonable assistance to Data Supplier to respond to an access request submitted by a data subject (whether received directly or indirectly through Data Supplier) in accordance with the Privacy Act;
(d) without undue delay notify the Data Supplier as soon as the Data Receiver becomes aware that a Privacy Breach has occurred and shall provide all assistance and information reasonably required by the Data Supplier to meet its applicable regulatory obligations; and
(e) take all appropriate steps to implement and maintain reasonable security arrangements for the protection of Personal Information in accordance with the Privacy Act.
15.3 Client represents and warrants that it will not merge or match the Deliverables with Client’s Personal Information in an attempt to de-anonymize or re-identify individuals.
16.1 Each party warrants and undertakes that:
(a) it will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 ("Relevant Requirements"); and
(b) it has and shall maintain in place throughout the Term all policies and procedures necessary to ensure compliance with the Relevant Requirements.
17.1 Agency acts in all its contracts as a principal (and not as agent for Client) in respect of dealings with Media Owners and other third party suppliers (“Suppliers”) and shall place orders and enter into contracts with the Suppliers in its own name and on its own account. Notwithstanding the foregoing, Agency will act as agent for Client (and not as principal) in respect of Agent Services and where expressly stated in a SOW and Agency is hereby authorised to place orders with relevant Media Owners, rights owners and other third parties in the name and on behalf of Client and Client shall execute such other agreements and other documentation as reasonably required. In the event that Agency acts as principal for payment or incurs costs on behalf of Client then Client will reimburse Agency for all amounts properly incurred by Agency. Other than where expressly stated to the contrary, nothing in this Agreement is intended to or shall operate to create a legal partnership or relationship of principal and agent between the parties.
17.2 The service of proceedings, and any notice of termination, given under or in connection with this Agreement shall be in writing (excluding email) and served by hand or registered mail to the other party’s address (and in the case of Agency, addressed to General Counsel, dentsu International at Level 7, 508-510 Church Street, Cremorne, VIC 3121, Australia). Such notice shall be deemed to have been served at the time of delivery. All other communications (including in relation to approvals) under this Agreement may be given via email and shall be deemed received upon sending, save in the case of manifest technical error.
17.3 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 circumstances beyond its reasonable control (“Force Majeure Event”). The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event.
17.4 No provision of this Agreement (or any document entered into in connection with this Agreement) shall be modified or varied without the written consent of the parties. To the extent that an event outside the reasonable control of Agency (including but not limited to material changes to applicable law or industry self-regulatory guidelines) materially impacts Agency’s ability to provide the Services in accordance with the Agreement or any SOW, Agency reserves the right to submit a variation to the Agreement, relevant SOW and/or suspend the impacted part of the Services upon reasonable notice. If Client does not agree to the variation Client may terminate the impacted SOW following 30 days’ notice. Client shall be deemed to have accepted the variation if Client continues to accept the Services on the variation terms.
17.5 No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under this Agreement will be construed as a waiver of that right or remedy.
17.6 Termination of this Agreement for any reason will not affect those provisions which are stated to, or by their nature, survive such termination.
17.7 This Agreement may be signed in counterparts and by the parties on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same document. The parties agree that this Agreement may be signed electronically.
17.8 A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
17.9 Subject to clause 3.2, this Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes, in relation to such subject matter: (i) any previous agreement or understanding between the parties; and (ii) any terms and conditions contained in a party’s purchase order or invoice. In entering into this Agreement and/or any SOW, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.
17.10 No provision of this Agreement shall be construed adversely against a party solely because that party was responsible for drafting that particular provision. If any provision of this Agreement is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement, which will remain in full force and effect.
17.11 Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply: (a) a reference to: (i) legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it; (ii) a party to this Agreement includes a permitted substitute or assign of that party; and (iii) a person includes any type of entity or body of persons, whether or not incorporated or a separate legal identity, and any executor, administrator or successor; (b) a singular word includes the plural, and vice versa; (c) if a word is defined, other parts of speech and forms of that word or phrase have corresponding meanings; (d) the words “including” and “include” (or words of similar effect) will not be deemed to limit the effect of the words or expressions in connection with which they are used; (e) unless otherwise specified, a reference to “$” or “dollars” is a reference to Australian currency.
17.12 This Agreement and any and all disputes arising out of or in connection with this Agreement (including without limitation any alleged breach, or challenge to the validity or enforceability, of this Agreement or any provision hereof) shall be subject to the laws of the state of Victoria and the Commonwealth of Australia.
17.13 Any and all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the rules recommended by the Law Institute of Victoria (“Rules”) (which Rules are deemed to be incorporated by reference into this Agreement) by one arbitrator, appointed in accordance with the Rules. The arbitration shall take place in Melbourne and the language of the arbitration shall be English. This clause shall not prevent Agency from taking action against Client through any court of competent jurisdiction in relation to: (a) the non-payment or late payment of Fees or other amounts payable to Agency; or (b) interim or injunctive relief.
Last updated 23 May 2022 (V3).
A downloadable PDF version of the Dentsu AU Terms of Business can be found here (together with previous versions).