1. PARTIES

The parties to this agreement are Market Science (ABN 36 640 762 680) (“us”, “we”) and client (“Client”, “you”).

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2. SERVICES

We provide our clients with high quality marketing, product, sales, and general business services including marketing content, product positioning, product market fit, branding, pricing models, sales funnel development, product development, go-to-market strategies, sales & marketing execution services, commercial model development & advice, partnership & affiliate marketing advice and execution, events and advertisement coordination, investor pitch and advice services.

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 The specific deliverables we will provide to you under the current engagement are set out in our Quote. If multiple options have been set out, the specific services and deliverables to be provided under the engagement will be those that you select. 

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Any deliverables or revisions above and beyond those stipulated in the quote (or agreed upon during correspondence) will be subject to further agreement and fees.

If we have discussed a service or deliverable previously but you don’t see it included in the Quote or in this agreement, please raise this with me, as the scope of this engagement will be limited to the documented services and deliverables.

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All relevant files for deliverables will be provided once payment has been made in full, subject to the balance of this agreement.

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3. YOUR RESPONSIBILITIES

In order to meet the desired deadlines, it is important that all requested information is provided in a prompt and timely manner.

Delays in the availability or accuracy of information may result in deadlines being deferred and incur additional fees. 

We will not undertake any review to confirm the completeness or accuracy of the information provide. We will accept all information on face value as represented by you. Any omissions and/or mistakes may result in additional time costs to rectify.

Under this engagement, we agree to provide accurate and complete responses to queries within 7 days (subject to the change in scope clause below).

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4. CHANGES TO SCOPE

The services provided are limited in scope, as set out in our quote. If you request services outside those outlined, these services will incur additional fees. We retain the right to refuse any additional services or extensions requested, including those which differ significantly from services outlined in section 2 of this document

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If an expedited delivery date is requested, we will do our best to accommodate these services, but note that unreasonable time constraints may affect the quality of the output and as such, we reserve the right to refuse expedited timeframes. Any expeditated timeframes will incur additional costs, ordinarily a 50% increase in the agreed upon fee to compensate for the re-prioritisation of other engagements.

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5. FEES

Provided there are no exceptional circumstances, the fee for the services will be outlined in our quote (excluding GST). Please note that the fee quoted is subject to change in the following circumstances:

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1. if time spent on any stage exceeds the estimate due to factors outside of our control, including due to instructions by you to complete work outside of the initial scope; or

2. if third parties engaged on your behalf modify their fees or charges.

 

If we anticipate that the costs incurred may exceed the quoted fee, we will inform you as soon as possible.

As per section 4, where services outside of the agreed upon scope are requested, the services will be charged at the standard hourly rate applicable at the time the services are provided.

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As at the date of this letter, the hourly rate applicable will be indicated in the associated quote. This rate is subject to change every 1 July or 30 days from the date of issue of this letter. This rate is exclusive of GST and superannuation guarantee (if required by law).

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The fee amount is expressed in Australian dollars and excludes any direct out of pocket expenses incurred as part of the engagement. Reimbursement of direct out of pocket expenses will be charged at cost.

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We recommend you seek accounting advice to determine whether superannuation guarantee is payable under the extended definition of an employee per s12(3) of the Superannuation Guarantee (Administration) Act 1992 – that is, a superannuation guarantee obligation arises where an individual meets the definition of an employee. The extended definition provides that if “a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.”

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6. EXPENSES & THIRD-PARTY INVOLVEMENT

We may from time to time engage third party specialist, where warranted to obtain the services you need or to assist us to provide our service to you.  These may include cloud service providers and outsourced service providers. We will seek your consent if third party involvement is likely to be required. 

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In the course of this engagement, we may incur expenses in providing the services, which you will be required to reimburse. These may include (but are not limited to):

 

• Image purchase costs; 

• Art materials costs; 

• Printing costs;

• Props for photographing.

• Necessary software subscription costs;

• Additional sub-contracting fees, such as graphic designers, website developers, content marketers.

• Advertising equipment; and

• Video content creation software, services, and equipment.

 

We endeavour to advise of all necessary expenses at the outset of the engagement, however additional expenses may arise. By accepting the terms of this engagement, you authorise us to incur reasonable additional expenses as required.  

There may be circumstances where we require <company name> to pay for expenses up front (for example, merchandise). We will advise you as soon as possible where these amounts arise and will direct you on how to make payment at the time.

For expenses greater than $50, we will endeavour to seek your permission prior to incurring the expenses, however please note that this may not always be possible (such as in the event of an urgent request or need to obtain an item quickly due to scarcity). 

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7. PAYMENT

We may, in our absolute discretion, request a deposit payment. If we require a deposit, we will set out the amount and due date in the Quote. In most circumstances, the required deposit will be (at a minimum) 50% of the total agreed project cost, however please refer to your Quote for exact amounts. We will not be obliged to commence work on the engagement unless or until you pay the deposit amount as instructed. 

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We will invoice you for fees and expenses on completion of each stage of the project or at agreed intervals. If no prior agreement is entered into, the invoicing intervals will be set as:

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• for hourly rate engagements – an invoice will be raised at the end of each month

• for fixed price or indicative fee arrangements – an interim fee at our discretion with the remaining balance invoiced at the completion of the engagement.

 

The invoice is due for payment by the due date outlined on the invoice. This is ordinarily 14 days from the date of issue, unless otherwise stated.

Payment of invoices must be made by electronic funds transfer or direct bank deposit into the nominated account outlined on the invoice. We may, in our absolute discretion, charge interest on all amounts outstanding for more than 14 days at the rate of 10% per annum.

If any amounts remain outstanding for more than 14 days, we retain the right to pause the engagement or refuse any further service requests until the outstanding amounts are settled.

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If the amounts remain outstanding for more than 60 days, we may refer the matter to a debt collection agency or solicitor and you will be liable to pay any costs incurred or become liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.

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Deliverables in agree file formats (such as .jpeg, .png, .doc, .pdf, .ppt or .eps) unlocked and unwatermarked will not be released to you until we have received payment in full. Please note that we will not under any circumstances be obliged to deliver design files, such as Illustrator or InDesign files. These files are retained for internal purposes only. If you require us to deliver such internal files to you, this will be subject to further agreement and fees.

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8. ACCESS AND CONTROL

We may require reasonable access to your digital assets (such as your website or social media profiles) to provide the services. You agree to give us access on request. We will not be responsible for any delay in the project if we are unable to gain access as requested.

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9. LICENCE OF INTELLECTUAL PROPERTY

During the engagement, we may provide you with materials which are subject to Intellectual Property Rights. We retain all Intellectual Property Rights (including Moral Rights) in all works we create in relation to the project, including any brand positioning frameworks, pitch decks, pricing models, social media content, imagery, packaging designs, images, illustrations, graphics or other written or visual work. Nothing in this agreement will cause any assignment of such rights.

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Otherwise, we agree to grant you an exclusive licence to use the Intellectual Property created during the project for the purposes expressly set out in the Quote, subject to the balance of this agreement. Such licence will be granted on the receipt of payment of the final invoice in relation to the project. 

Licences referred to in this clause specifically exclude any right to sell, licence or distribute the Intellectual Property – or attempt to do any of those things - without prior written consent. In the event of a breach of this clause, any licence will be immediately revoked, and we may pursue you for an appropriate remedy, which may include a claim for damages or an account of profits. You are not authorised to copy, share, republish or otherwise distribute such works otherwise than in accordance with such licence. 

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If you request that we assign Intellectual Property Rights in any work, this will be at our absolute discretion and may be subject to further agreement and fees.

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We retain the right to watermark or otherwise digitally lock or protect Intellectual Property (including images, content or other works) produced under this agreement to protect our Intellectual Property Rights. Please note if this agreement is terminated, we will not be obliged to provide any Intellectual Property to you. If you fail to make payment as required by this agreement, we may terminate this agreement, in which case there will be no grant of licence.

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Unless otherwise agreed in writing, you grant us permission to use and reproduce your name, business or trading name and logo (if applicable), photograph or likeness, including any trade marks, as well as evidence of services delivered and results achieved, for the sole purpose of promoting our business. You agree that we may place images of designs and deliverables on our webpage, together with a hyperlink to your website. 

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10. CLIENT’S WARRANTY AND INDEMNITY

You warrant at all times during this agreement that:

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a) you have the full right and title (including all Intellectual Property Rights) to all elements of text, graphics, photos, videos, designs, trademarks, or other artwork or text you provide for the purpose of this agreement (Elements), or that you have received written permission from the rightful owner(s) to use each of the Elements for the purpose it is to be used for by us on your behalf; and

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b) you have complied with and/or will comply with all applicable laws and regulations that relate in any way or apply to the project at your own expense.

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You indemnify us on a continuing basis for all loss and damage associated with any false warranty given by you and/or any breach of the warranties set out in this clause and/or any breach of any other person’s Intellectual Property Rights or other rights arising out of such breach.
 

11. CHANGES TO TERMS

We may elect to change the terms of this engagement, on notice to you. If the terms of this engagement change, we will email a copy of the updated terms to you at least 20 Business Days prior to the changes becoming effective. If you continue to instruct us to provide the services after the expiry of that period, it will be taken that the updated terms have been accepted. 

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12. CONFIDENTIALITY

We may, during the course of the engagement, disclose Confidential Information to you. We may also require you to provide us with Confidential Information for the purposes of providing the services. We each agree that we will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which we have obtained, except as authorised by the other party or as required by law. 

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13. LIMITATION OF LIABILITY

We will provide our services with due care and skill and to the best of our ability. Please note that we do not offer any guarantees beyond those available to you at law (for example, any consumer guarantees you are entitled to under the Australian Consumer Law). We do not provide any warranty or guarantee as to results that may be achieved. Any indications given are examples and are based on experience and must not be relied on to predict future results. You agree that you have not relied on any warranty, guarantee or representation given by us in entering into this Agreement. 

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You also acknowledge and agree that third-party platforms which we may use to provide the services, or which the services are designed to take advantage of, such as Facebook, Instagram, Mail Chimp, HubSpot, Klenty, Campaign Monitor, Miro, YouTube, TikTok, Asana, Squarespace or similar third party platforms, are not controlled or influenced by us and we cannot guarantee their continued availability. Should a critical platform become unavailable for any reason, we will discuss a mutually acceptable alternative. 

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Nothing in this agreement is intended to exclude any right or guarantee to which you are entitled under the Australian Consumer Law. Where our services fall within the scope of the Australian Consumer Law, we limit our liability to you to the fullest extent permissible under section 64A of the Australian Consumer Law; that is, to the supply of the services again or the cost of having the services supplied again. We specifically exclude liability for negligence. To the maximum extent permissible by law, we exclude liability for consequential loss or damage, including loss of business profits.

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If our services fall outside the scope of the Australian Consumer Law, we exclude all liability to you (including for consequential loss or damage, including loss of business profits) and you hereby waive, release and discharge, on a continuing basis, all claims you have or may have against us relating to the provision of the services, however arising. We specifically exclude liability for negligence.

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You indemnify us and hold us (including officers, employees, agents, contractors and related bodies corporate) harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of any act or thing done by us in good faith and purportedly pursuant to a right granted to us under this agreement, and any breach by you of any of the terms of this agreement.

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14. TERMINATION

This agreement may be terminated by either party if:

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a) the other party breaches a term of this agreement and fails to remedy the breach after being given 7 days’ notice of the requirement to remedy the breach; or

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b) an Insolvency Event occurs in relation to either party;

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The parties acknowledge and agree that the termination of this agreement by either party other than in accordance with the express terms of this clause will be deemed a breach of this agreement. 

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If termination is disputed, it will be dealt with under the dispute resolution provisions of this agreement.

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15. CONSEQUENCES OF TERMINATION

If this agreement is terminated, all rights and obligations accrued up to the date of the agreement are not affected.

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If you terminate this agreement, you must pay all fees and expenses incurred up to the time of termination. 

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This clause, as well as any other clause which by its nature is intended to survive termination, will survive termination.

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16. DISPUTE RESOLUTION

Marketing, sales, product and general business advice and/or work is very personal and can be highly subjective. For this reason, we take our time in getting to know you and understanding your goals. If for any reason you’re unsatisfied with our work, please communicate this with us as soon as possible, so we can find a mutually acceptable resolution. We encourage you to raise any issues with us informally (for example, via telephone) prior to utilising the dispute resolution mechanisms set out in the remainder of this clause, if appropriate.

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If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause:

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a) The party must inform the other party in writing of the following:

i. the nature of the dispute;

ii. the outcome they desire to resolve the dispute, and

iii. the action they believe will settle the dispute.

b) On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 20 Business Days.

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c) If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Queensland appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation, which must be held in Brisbane, Queensland, Australia unless the parties and the mediator agree that the location is inconvenient and are unable to agree on a suitable alternative location, in which case the parties may agree to participate in online mediation.

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All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

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This clause survives termination of this agreement.

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17. GENERAL

a) Term: The term of this agreement will commence on the date it is accepted by you and will continue unless or until the services are fully provided and paid for in full or terminated in accordance with this agreement or general law.

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b) Time of the essence: Time is of the essence in this agreement. No extension or variation of this agreement will operate as a waiver of this provision.

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c) Amendment: Unless otherwise set out in this agreement, any amendment or variation to this agreement (such as a change to the services to be provided) is not effective unless it is in writing and signed by both parties, unless otherwise set out in this agreement.

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d) Assignment: we won’t voluntarily assign or otherwise transfer our obligations under this agreement without your prior consent, however, we may sub-contract one or more aspects of the services, provided always that Alex will remain the head contractor and will be responsible for the delivery of services in accordance with this agreement.

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e) Relationship of parties: Nothing contained in this agreement will constitute the relationship of partnership or employer and employee between the parties and it is the express intention of the parties that any such relationships are denied.

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f) Entire agreement: This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this agreement.

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g) Severance: If anything in this agreement is unenforceable, illegal or void, it is severed and the rest of the agreement remains in force.

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h) Waiver: Any waiver by any party to a breach of this agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

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i) Events beyond control: Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities, or major injury or illness of key personnel.

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j) Governing law: The law of Queensland governs this agreement and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.

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k) Notices: A notice or other communication to a party must be in writing and delivered to that party in one of the following ways:

i. delivered personally;

ii. posted to their address, when it will be treated as having been received on the second business day after posting; or

iii. sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.

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18. DEFINITIONS 

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

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Business Day means a day on which banks are open for business in Brisbane, other than a Saturday, Sunday or public holiday.

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Confidential Information refers to any data or information relating to a party, whether business or personal, written or oral and regardless of how or when it was provided to the other party, which would reasonably be considered to be private or proprietary to that party and that is not generally known and where the release of that confidential information could reasonably be expected to cause harm to that party, and includes the terms of this agreement (except to the extent that disclosure of the terms is necessary for the purpose of legal or financial advice).

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Insolvency Event includes any event which indicates that the party in question is unable to pay their debts as they fall due. 

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Intellectual Property refers to works to which Intellectual Property Rights attach.

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Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration, as well as all digital and electronic rights.

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Moral Rights means the personal rights of a creator to have his or her work attributed to them and to insist that its integrity be retained.

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19. INTERPRETATION

In the interpretation of this agreement:

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a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;

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b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;

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c) Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this agreement;

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d) Grammatical forms of defined words or phrases have corresponding meanings;

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e) Parties must perform their obligations on the dates and times fixed by reference to Brisbane, Queensland, Australia;

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f) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

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g) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;

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h) References to a party are intended to bind their executors, administrators and permitted transferees; and

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i) Obligations under this agreement affecting more than one party bind them jointly and each of them severally.