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Marketing Service Agreement

Achieve Projects Pty Ltd T/A Catch Digital Solutions ACN 654 372 013 (Catch Digital) carries on the business of providing marketing services, as well as general business advisory services as set out on our website https://www.catchdigitalsolutions.au/ (Website). 

Catch Digital has agreed to provide the Services to you (the Client) and the Client has agreed to procure the Services from Catch Digital in accordance with the attached standard terms and conditions and any Proposal agreed between the parties during the Term in the form of Schedule 1 (which together form this “agreement”).

By reading this agreement, you agree not to disclose the terms of this agreement (including fees charged by Catch Digital) to any third party and agree that this agreement and its terms are confidential information.

By clicking the “I accept these Terms” button on our Website,  paying for the Services or otherwise accepting the benefit of any part of your Services, you agree to be bound by this agreement which forms a binding contractual agreement between you the person acquiring the Services or the company you represent and are acquiring the Services on behalf of (‘you’ or ‘your’ or ‘Client’) and us.

TERMS AND CONDITIONS

1.PROPOSAL 

  1. These terms will apply to all the Client's dealings with Catch Digital, including being incorporated together with the Proposal and schedules annexed herein. 
  2. In the event of any inconsistency between these terms and conditions (including the Schedules attached herein) and the Proposal, the clauses of these terms and conditions will prevail to the extent of such inconsistency.


2. MEANING OF CAPITALISED WORDS AND PHRASES

  1. Capitalised words and phrases used in these terms and conditions have the meaning given:
  2. to that word or phrase in the Proposal; or
  3. by the word immediately preceding any bolded and bracketed word(s) or phrase(s).


3. TERM OF AGREEMENT

  1. This agreement will commence on the date the Client agrees to be bound by this agreement, and continue in effect until the later of:
  2. the End Date set out in the Proposal (if any);
  3. the date all the Services set out in the relevant Proposal have been completed; and 
  4. the date all the Fees owed, or to be owed, under your Proposal have been received by us, unless earlier terminated in accordance with clause 14 (the Term).
  5. At any time prior to the expiry of the Term, the parties may agree in writing to extend the term of this agreement for an additional period (Renewal Term), in which case the operation of this agreement will be extended for the Renewal Term.
  6. If any Services are supplied after the expiry of the Term, without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that this agreement will not apply, the terms of this agreement will continue to apply for those Services.

4. SERVICES

   4.1 provision of SERVICES

  1. In consideration for the payment of the Fees, Catch Digital will provide the Client with the services set out in the Proposal to the extent described in Schedule 1 (Services).
  2. Any time frame agreed for the performance of the Services is indicative only and subject to change on notice by Catch Digital.
  3. Unless otherwise agreed, Catch Digital may, in its discretion:
  4. not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
  5. withhold delivery of Services until the Client has paid the invoice in respect of such Services.


   4.2 BRIEFS BY CLIENT.

The following clauses will apply if the briefs are being prepared and submitted by the Client for the provision of the Services (Client Briefs).

  1. Catch Digital will produce the Services set out in the Proposal in accordance with the Client Briefs. 
  2. The Client must submit all Client Briefs within 10 days of the beginning of each month for which Services are to be provided. 
  3. Catch Digital may, at its discretion, accept or revise a Client Brief. If a Client Brief requests Services that are outside of the scope of Services set out in the Proposal, Catch Digital will provide a revised brief to the Client for its approval or contact the Client to discuss limiting the scope of the Client Brief so it falls within the Services.


   4.3 BRIEFS BY Catch Digital SOLUTIONS

The following clauses will apply if the briefs are being prepared and submitted by Catch Digital (Catch Digital Briefs).

  1. Catch Digital will produce the Services set out in the Proposal in accordance with the Catch Digital Briefs. 
  2. Catch Digital will submit the Catch Digital Briefs within 10 days of the beginning of each month for which Services are to be provided. 
  3. Catch Digital will provide the Services outlined in a Catch Digital Brief within 4 to 14 days of providing the Catch Digital Brief to the Client. 


   4.4 AMENDMENTS TO SERVICES 

  1. The Client may request amendments to the Services in accordance with the number of Rounds of Amendments set out in the Proposal within a reasonable amount of time (at the discretion of Catch Digital) after the Services are provided to the Client. 
  2. Amendments requested in Rounds of Amendments must be within the scope of the original Client Brief or Catch Digital Brief. Any additional rounds of amendments requested, or amendments that are extensive or change the original Client Brief or Catch Digital Brief, may be charged in accordance with clause 4.2 above. 


   4.5 PHOTOGRAPHY / CONTENT CREATION

If a Proposal states that the Services include photography or videography (Photography), the Client acknowledges and agrees that:

  1. it must only use any Photography deliverables (including any photographs) for the purpose and/or project specified in a Proposal and will not allow or encourage a third-party to use any such deliverables;
  2. it must obtain any necessary consent or permission and pay any fees which may apply for the Service Provider to photograph or shoot video at a particular venue, location or event;
  3. it must obtain any necessary consent or permission and pay any fees which may apply to the hire of any talent (such as models or actors);
  4. while the Service Provider takes all reasonable care in providing Photography, the Service Provider will not be liable for any loss or damage except for the return of any deposit paid, should a failure occur in any of the equipment used or due to illness of the photographer(s) or person(s) employed or engaged by the Service Provider;
  5. it will not alter or manipulate any Photography without the Service Provider’s written permission;
  6. the Intellectual Property Rights in the photographs will be retained by the Service Provider, and the Client is granted a licence to use the photographs in accordance with clause 11. At the end of the Term, the Client’s licence to use the photographs will end, unless the licence to the Photography is extended in accordance with clause 11. 
  7. all Photography will be delivered via an electronic download link, in the form of a JPEG file for photos. The Photography will be provided to the Client on an as-is basis and the Service Provider is not obliged to provide the Client with the Photography in an alternate form or resolution; and
  8. the parties will agree on a suitable time, date and location for the Photography Services to be performed. If the agreed Photography Service is cancelled (Service Cancellation) less than 48 hours prior to the date and time at which the Service Provider has been engaged to provide the Photography, the Client must pay additional Fees for the rescheduled Photography Service in accordance with clause 4.2.


   4.6 SOCIAL MEDIA MARKETING SERVICES

  1. If a Proposal states that the Services include social media marketing, the Service Provider will manage the Client’s social media accounts nominated in a Proposal provided that the Client provides the Service Provider with all relevant usernames and passwords.


                              Unless otherwise specified in a Proposal, the social media marketing services will include:

  1. creating content, engagement, and ongoing management;
  2. monitoring social media conversations and responding to the same; and
  3. managing all social media communication with the Client.


                             The Service Provider’s performance of the social media marketing services may be affected by circumstances outside the Service                                   Provider’s control including:

  1. the Client’s account that is used by the Service Provider to perform the social media marketing services being hacked, cancelled or disabled on a temporary or permanent basis; and
  2. the social media platform changes its functionality,

and the Service Provider will not be liable for any loss or damage suffered by the Client arising from such circumstances.


   4.7 INFLUENCERS

  1. If the Services include the Service Provider engaging social media influencers, including persons such as public figures, influential chefs or anyone similar (Influencers) on behalf of the Client to appear in marketing campaigns or otherwise be involved in the Client’s public or online presence (for example, through social media marketing campaigns), the Client acknowledges and agrees that:
  2. any Influencer engagement is directly between the Client and the Influencer after the Service Provider has introduced the parties;
  3. the Client is required to pay for the Influencers Fees;
  4. The Service Provider is not responsible for, and will not be liable for any loss or damage suffered by the Client arising from:
  5. the Influencer’s failure to perform the services as agreed or at all;
  6. any aspect of the Influencer performing any services for the Client (including any negative press about the Influencer or bad reviews written by the Influencer); and
  7. any damage suffered to the Influencer in connection with performing the Influencer’s services.


   4.8 CHANGES TO SCOPE

  1. The scope of Services are set out in the relevant Proposals. 
  2. The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Catch Digital (Change Fee) for changes to Services requested by the Client which alter the scope set out in the Proposal and requires Catch Digital to perform additional work or incur additional costs (Changes).
  3. Catch Digital may in its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
  4. Catch Digital will only be required to perform the Changes if:
  5. Catch Digital agrees in writing to perform the Changes;
  6. the Client confirms in writing that they wish for Catch Digital to proceed with the Changes and the relevant Change Fee; and
  7. the Client agrees to pays the Change Fee.
  8. This agreement will apply to any Services that are the subject of a Change without this agreement needing to be signed again.


   4.9 retainer services

  1. In consideration for the payment of the relevant Fees, Catch Digital will provide the Client with the retainer services set out in the Proposal (Retainer Services) on request from the Client, subject to the time limitations (Time Limitations), and up to the number of relevant retainer hours (Retainer Hours) set out in Schedule 1.
  2. If Catch Digital provides Retainer Services for all of the relevant Retainer Hours in a month, then for any additional requested Retainer Services in that month:
  3. Catch Digital may accept or decline providing those services, as if they were Project Services; and
  4. for additional Retainer Services that Catch Digital agrees to provide, the Client will be charged the relevant Hourly Rate set out in the Proposal.


   4.10 project services

  1. The Client may request services that are not Retainer Services on a one off project-basis (Project Services) by submitting the Proposal to Catch Digital. Catch Digital reserves the right to accept or decline the Proposal for Project Services, in whole or in part.
  2. The Proposal for Project Services becomes binding between Catch Digital and the Client upon both parties signing it or at the time Catch Digital commences providing the Services, whichever is earlier.
  3. Unless otherwise stated in the Proposal or agreed in writing, any quotes provided by Catch Digital are merely an invitation to treat and are valid for 14 days from the date the quote was sent.


   4.11 ADDITIONAL PROPOSALS 

  1. The parties may agree to additional Statements of Work under these terms and conditions during the Term. 
  2. These terms and conditions will apply to all additional Statements of Work between the parties. 
  3. If the Client requests an additional Proposal, Catch Digital will provide a quote in accordance with the Proposal template.
  4. The Client will be taken to have accepted an additional Proposal if the Client informs or otherwise indicates to Catch Digital that the Client wishes for Catch Digital to proceed with the performing the additional Proposal.
  5. An additional Proposal will not limit or otherwise affect any other current Statements of Work between the parties. 


   4.12 SECURITY

  1. Catch Digital will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Catch Digital does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.


5. DISCLAIMERS


   5.1 DEPENDENCIES

  1. Catch Digital’s ability to perform its obligations under this agreement may be dependent on the Client or its personnel fulfilling their obligations.
  2. To the extent that the Client or its personnel does not fulfil their obligations under this agreement, then (without prejudice to Catch Digital’s rights and remedies) Catch Digital will be relieved of its obligations to the Client to the extent that, and only for so long as, Catch Digital is prevented from performing the Services in accordance with this agreement, and Catch Digital shall not be liable for any loss, damage, cost or expense suffered by the Client arising out of or relating to therefrom.
  3. The Client is ultimately responsible for approving all Services, including tender bids or proposals before submission, and should proof to ensure accuracy and suitability of any such Service. Whilst every effort has been made for accuracy, the Client’s approval to proceed constitutes acceptance of full responsibility for any errors and omissions within the Services. Catch Digital will not accept liability for errors overlooked at the stage of final proofing.


   5.2 TIMING

  1. As part of a Proposal or in the course of Catch Digital performing the Services, the parties may agree on a schedule for providing certain Services, including the timing for the delivery of certain Services as set out in a Proposal, estimated dates of completion, deadlines or schedules (Schedules).
  2. While Catch Digital will use its best endeavours to meet these Schedules, these are subject to change if unforeseen complexities arise. In these cases, Catch Digital will use its best efforts to minimise the impact of such changes.
  3. Catch Digital reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide timely feedback or other information reasonably requested by Catch Digital in order to perform the Services.


   5.3 NO GUARANTEED OUTCOME

  1. All information provided as part of the Services is an opinion only, based on Catch Digital’s experience and expertise.
  2. While Catch Digital will use its best endeavours to obtain a successful result for the Client, Catch Digital does not guarantee any particular outcome or decision from any third party on any issue if the Client relies on the Services.


6. THIRD PARTY TERMS & CONDITIONS

  1. If the Services involve Catch Digital acquiring goods and services supplied by a third party on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) may apply.
  2. The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing any deliverables, and Catch Digital will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.


7. CLIENT OBLIGATIONS

   7.1 PROVIDE INFORMATION

  1. The Client must provide Catch Digital with all documentation, information and assistance reasonably required by Catch Digital to perform the Services.
  2. The Client must provide feedback on all documents or other mock-ups provided to the Client within the agreed time frame, if feedback is included in the Services. If the Client delays in providing any feedback, there may be delays in the Services which Catch Digital will not be liable for.
  3. The Client warrants that all information, documentation and other material it provides to Catch Digital for the purpose of receiving the Services, including company information, marketing information, financial records and commercial information, is complete, accurate, compliant with any applicable laws and industry regulations, and up-to-date.
  4. The Client releases Catch Digital from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.

   7.2 ACCESS

  1. The Client agrees to provide Catch Digital with access to:
  2. the Client’s premises and personnel, to the extent required to perform the Services;
  3. the Client’s paid advertising account (including login details and passwords);
  4. the Client’s website (but only where Catch Digital is providing Services that involve making updates or changes to the Client’s website); and
  5. any other third party or other accounts used by the Client (including login details and passwords),
  6. as reasonably required by Catch Digital to perform the Services.


   7.3 CLIENT MATERIALS

  1. The Client warrants that all information, documentation and other material they provide to Catch Digital for the purpose of receiving the Services is complete, accurate and up-to-date.
  2. The Client acknowledges and agrees that Catch Digital will rely on the accuracy of any plans, specifications and other information the Client provides.
  3. The Client releases Catch Digital from all liability in relation to any loss or damage that may arise in connection with the Services, to the extent it is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.


   7.4 COMPLIANCE WITH LAWS

  1. The Client agrees that it will not by receiving or requesting the Services:
  2. breach any applicable laws, rules and regulations (including any applicable privacy laws); or
  3. infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.



   7.5 INSURANCE

  1. The Client acknowledges and agrees that it is responsible for insuring itself against its risks under and in connection with this agreement.
  2. The Client must ensure that it effects and maintains adequate insurance to cover the Client’s risks and liabilities under this agreement and any activities undertaken by the Client in connection with this agreement, including marketing campaigns, including as applicable to the particular activity, business insurance, professional indemnity insurance, errors and omissions insurance and public liability insurance.

8. PAYMENT

   8.1 FEES

  1. The Client must pay the Fees:
  2. in the amounts, and on or before the Payment Due Date(s), set out in the Proposal;
  3. in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
  4. in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds
  5. If there is no Payment Due Date set out in the Proposal in relation to a Fee, that Fee must be paid at the time set out in the relevant invoice issued by Catch Digital.
  6. If an invoice issued by Catch Digital does not set out a Payment Due Date, then a Fee will be due within 14 days from the date of that invoice. 
  7. To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth), any Fees paid in accordance with this agreement are non-refundable.

   8.2 INVOICES

  1. Catch Digital will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice. The Fees become due and payable in accordance with an invoice regardless of whether the Client has approved any particular concepts or designs scheduled for approval at that time.

   8.3 DIRECT DEBIT

  1. If the Proposal state that the Fees are to be paid using direct debit (DD), the Client:
  2. authorises direct debit in line with the third party payment provider’s, as notified to the Client (Payment Provider), separate DD Authorisation Form and any DD agreement as applicable;
  3. agrees to enter into any DD agreement required by our Payment Provider;
  4. authorises us to charge your bank account or credit card in advance in line with any DD Authorisation Form and any DD agreement;
  5. must ensure that there are sufficient funds available in your account to allow our Payment Provider to debit the fees payable; and
  6. acknowledges and agrees that there may be additional payments required from the Payment Provider if you miss or fail to make any payment. These terms are separate and in addition to these Terms.


   8.4 SUSPENSION OF SERVICES

  • Catch Digital reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in accordance with this agreement (including the relevant Proposal).


   8.5 LATE PAYMENT

  1. If the Client does not pay an amount due under this agreement on or before the date it is due:
  2. Catch Digital may immediately suspend provision of the Services;
  3. Catch Digital may seek to recover the amount due by referring the matter to a collection agency;
  4. without limiting any of Catch Digital’s other rights under these terms, the Client must pay Catch Digital interest at the rate of 15% per annum on each amount outstanding, accruing daily and compounding monthly, from the due date for payment to the date on which payment is received by Catch Digital; and
  5. the Client must reimburse Catch Digital for any costs it incurs, including any legal costs, in connection with recovering the amount due or enforcing any of its rights under this agreement.


   8.6 EXPENSES

  1. Unless otherwise agreed:
  2. the Client will bear all computer storage, media and related expenses reasonably incurred by Catch Digital in connection with the Proposal; and
  3. any third-party costs incurred by Catch Digital in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Proposal.


   8.7 GST

  1. Unless otherwise indicated, amounts stated in the Proposal do not include GST. In relation to any GST payable for a taxable supply by Catch Digital, the Client must pay the GST subject to Catch Digital providing a tax invoice.


   8.8 CARD SURCHARGES

  1. Catch Digital reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).


9.  ACCREDITATIONS

  1. Unless otherwise agreed in writing:
  2. all displays or publications of any deliverables provided to the Client as part of the Services (Services) must bear an accreditation and/or a copyright notice including Catch Digital’s name in the form, size and location as directed by Catch Digital;
  3. the Client must not, during or after the Term, remove the accreditation to Catch Digital;
  4. Catch Digital retains the right to describe the Services and reproduce, publish and display the Services in Catch Digital’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services in connection with such uses; and
  5. In connection with such uses under this clause 9, Catch Digital may:
  6. exercise such rights after termination of this agreement, and if the Client is no longer a client of Catch Digital;
  7. be credited with authorship of the Services; and
  8. refer to the Client, and use the Client’s name, logos and other branding (acting reasonably, and without holding itself out as acting on behalf of the Client).


10. CONFIDENTIALITy, resTRAINT, privacy AND DATA

   10.1 CONFIDENTIALITY

  1. Except as contemplated by this agreement or the Proposal, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
  2. This clause does not apply to:
  3. information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
  4. information required to be disclosed by any law; or
  5. information disclosed by Catch Digital to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
  6. For the purposes of this clause 10.1, “Confidential Information” means information of or provided by a party to the other party under or in connection with this agreement or the Proposal that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
  7. For the Client only, “Confidential Information” also includes the terms of this agreement.


   10.2 RESTRAINT

  1. For the duration of the Term and for 1 year thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Catch Digital with which the Client had contact during the course of the Proposal.


   10.3 NON DISPARAGEMENT 

  1. During the term of this Agreement and for a period of 10 years following its termination or expiration, both the Client and Catch Digital  agree not to make any false, negative, disparaging, or derogatory statements about each other, their software, services, business practices, employees, agents, or representatives. This clause does not prohibit either party from making truthful statements when required by law, regulation, or legal process, or from providing honest feedback in internal evaluations. Breach of this clause may result in irreparable harm, entitling the non-breaching party to seek injunctive relief and other available remedies.


   10.4 PRIVACY

  1. The parties agree to comply with:
  2. if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
  3. Catch Digital’s privacy policy, in force from time to time.
  4. Catch Digital will keep the Client informed of any changes to its privacy policy during the Term.


   10.5 THIRD PARTY DATA

  1. The Client warrants, in relation to the personal information and all other data that it provides to Catch Digital in connection with this agreement (Third Party Data), that:
  2. the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
  3. the Client is not breaching any law by providing Catch Digital with Third Party Data;
  4. Catch Digital will not breach any law by performing the Services in relation to any Third Party Data;
  5. there are no restrictions placed on the use of the Third Party Data (including by any Third Party terms) and if there are any such restrictions, the Client has notified Catch Digital of this, and Catch Digital has agreed to perform the Services in respect of that data (being under no obligation to do so); and
  6. Catch Digital will not breach any Third Party terms by performing the Services in relation to any Third Party Data.
  7. The Client agrees at all times to indemnify and hold harmless Catch Digital and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 10.4(a).


11. INTELLECTUAL PROPERTY

   11. 1 CLIENT CONTENT

  1. The Client grants to Catch Digital (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
  2. The Client:
  3. warrants that Catch Digital’s use of Client Content as contemplated by the Proposal will not infringe any third-party Intellectual Property Rights; and
  4. will indemnify Catch Digital from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.



   11.2 Catch Digital IP

  1. The Client will not acquire Intellectual Property Rights in any Catch Digital IP. Any Developed IP will be solely and exclusively owned by Catch Digital.
  2. During the Term, Catch Digital grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Catch Digital IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Services
  3. The Client must not use Catch Digital IP and any Developed IP for advertising purposes, outside of use on the Client’s social media accounts (including Facebook and Instagram), unless agreed in the Proposal or between the parties in writing.
  4. Subject to clause 11.2(e), at the end of the Term, the Client’s licence to Catch Digital IP and Developed IP will be revoked and the Client is not entitled to use the Catch Digital IP or Developed IP in any way.
  5. At the end of the Term, the parties may agree in writing to extend the licence to some or all of the Developed IP beyond the Term (Extended Licence). If so, the following terms apply:
  6. The parties must agree in writing on:
  7. the royalties payable to use the Extended Licence;
  8. the term of the Extended Licence; and
  9. the specific Developed IP included as part of the Extended Licence.
  10. The Extended Licence is non-exclusive, non-transferable, worldwide and revocable.
  11. The termination terms at clause 14 applies in respect of the termination of the Extended Licence.


   11.3 DEFINITIONS

  1. For the purposes of this clause 11:
  2. “Client Content” means any documents or materials supplied by the Client to Catch Digital under or in connection with this agreement or the Proposal, including any Intellectual Property Rights attaching to those materials.
  3. “Developed IP” means any materials produced by Catch Digital in the course of providing Services or Services including photographs, documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
  4. “Catch Digital IP” means all materials owned or licensed by Catch Digital that is not Developed IP and any Intellectual Property Rights attaching to those materials.
  5. “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.


12. WARRANTIES

  1. To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
  2. Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.


13. LIMITATION OF LIABILITY

   13.1 liability

  1. To the maximum extent permitted by law and subject to clause 13.1(a), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amounts paid to Catch Digital by the Client in the 6 months preceding the first event giving rise to the relevant liability.



   13.2 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Service Provider, except:

  1. in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
  2. to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

14. TERMINATION

   14.1 TERMINATION RIGHTS

  1. Catch Digital may terminate this agreement at any time by providing 30 days’ written notice to the Client. The date of termination will be the date that is 30 days from the date of the notice.
  2. At the conclusion of a Term, the Client may terminate this agreement by providing 30 days’ written notice to Catch Digital. The date of termination will be the date that is 30 days from the date of the notice.
  3. Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
  4. is in breach of this agreement and either:
  5. fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
  6. that breach is not capable of remedy; or
  7. ceases, suspends or threatens to cease or suspend to conduct its business.
  8. The date of termination will be the date that notice is given.

   14.2 ACCRUED RIGHTS AND LIABILITIES

  1. The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.

   14.3 CONSEQUENCES OF EXPIRATION OR TERMINATION

  1. Upon expiration or termination of this agreement:
  2. the Client will pay any outstanding Fees for Services provided (or that would have been provided but for the termination notice) up to the date of termination;
  3. the Client must pay all amounts owed for Services already provided as at the date of termination;
  4. each party must return all property of the other party to that other party;
  5. the Client must immediately cease using all Developed IP and Catch Digital IP, unless otherwise agreed between the parties in accordance with clause 11.2(e); and
  6. each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.

   14.4 SURVIVAL

  1. Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry, including clause 11.2(e)


15. DISPUTE RESOLUTION

  1. The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
  2. If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party.
  3. The parties acknowledge and agree that compliance with this clause 15 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
  4. in the case of applications for urgent interlocutory relief; or
  5. a breach by another party of this clause.


16. NOTICES

  1. A notice or other communication to a party under this agreement must be:
  2. in writing and in English; and
  3. delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
  4. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
  5. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
  6. when replied to by the other party,

whichever is earlier.

17. FORCE MAJEURE

  1. If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
  2. reasonable details of the Force Majeure Event; and
  3. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
  4. Subject to compliance with clause 17(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
  5. The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
  6. For the purposes of this agreement, a ‘Force Majeure Event’ means any:
  7. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
  8. strikes or other industrial action outside of the control of the Affected Party;
  9. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
  10. any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations


18. GENERAL

   18.1 GOVERNING LAW

  1. This agreement is governed by the law applying in Victoria, Australia.

   18.2 JURISDICTION

  1. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

   18.3 ASSIGNMENT

  1. A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).

   18.4 AMENDMENTS

  1. This agreement may only be amended by a document signed by each party.

   18.5 WAIVER

  1. No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

   18.6 FURTHER ACTS AND DOCUMENTS

  1. Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.

   18.7 ENTIRE AGREEMENT

  1. This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

   18.8 INTERPRETATION

  1. (singular and plural) words in the singular includes the plural (and vice versa);
  2. (gender) words indicating a gender includes the corresponding words of any other gender;
  3. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  4. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
  5. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
  6. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
  7. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
  8. (includes) the word “includes” and similar words in any form is not a word of limitation; and
  9. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.