Standard Terms and Conditions
These “Terms of Trade” set out the terms and conditions that apply to the provision of services by Barker Gray Pty Ltd trading as Barker Brand Partnerships (ACN 105 215 503) (“us”, “our” or “we”) to our clients (“Client”, “you” or “your”) in accordance with the applicable quote, proposal or invoice relating to such services. In the event of any inconsistency between a matter in our quote, proposal or invoice and these Terms of Trade, the matters in our quote, proposal or invoice shall prevail to the extent of any inconsistency. Further, these Terms of Trade shall apply to the provision of our services to you in all circumstances, and shall supersede any terms and conditions that you may have.
We will provide our services, including any deliverables or works, as set out in our quote, proposal or invoice to you, using reasonable skill and care in accordance with any applicable laws. All dates, schedules and deadlines regarding the provision of the services by us are provided as estimates only. We retain an absolute discretion to determine the mode and/or method of providing our services to you, including the use of sub-contractors. No changes to the services, including a suspension of the services, are permitted unless we agree to such changes in writing.
2. Your responsibilities
You must: (a) provide us with access to all information and materials required to provide the services to you and you must ensure such information and materials are complete, true, accurate and do not infringe any third party rights; (b) provide us with your reasonable assistance and cooperation for the purposes of facilitating the provision of the services; and (c) not do anything that harms or injures our reputation or property.
You must pay all fees, charges and expenses (including out-of-pocket expenses and disbursements) that are payable to us for the provision of the services. You must also pay any taxes, including goods and services taxes, that are payable in relation to the services. Unless stated to the contrary, all fees, charges and expenses must be paid to us within 7 days of the date of any invoice we issue to you, time being of the essence.
4. Manner of payments
All payments to us must be paid via a method accepted by us, and must be paid in cleared funds in Australian dollars without withholding, deduction, set-off or counterclaim.
We may charge interest on any overdue amount at a rate of 3% above the base rate as set by the Reserve Bank of Australia from time to time, and compounded daily from the overdue date.
For the avoidance of doubt, we retain all right, title and interest, including any and all intellectual property rights (whether in the nature of copyright or otherwise), in any deliverables or works unless and until you pay all fees, charges and expenses that are payable to us in relation to the services which we provide to you. Upon payment of all our fees, charges and expenses, subject to clause 7 below, we assign the right, title and interest in such deliverables and works to you, subject always to our right to retain a copy of such for our own purposes, including as reference material, for administrative purposes and/or for marketing purposes (subject to any embargoes agreed with you).
7. Usage Condition
Unless agreed with us in writing, your use of any deliverables or works that we provide to you in the course of providing our services to you is limited to the use of such deliverables or works within Australia and/or within the licence period agreed with you. Any use outside of such deliverables or works outside Australia and/or outside the agreed licence period is subject to our agreement and to you paying for any rights or usage fees stipulated by us.
8. Our materials
We retain all right, title and interest in our proprietary materials that we designate as such and that we use in the course of providing the services to you. You must not copy, distribute, adapt, reverse engineer, disassemble or modify any of our proprietary materials. On completion or termination of the services, you must return or destroy, on our request, any proprietary materials provided to you.
You warrant to us that: (a) you have the necessary power and authority to enter into and carry out the obligations in these Terms of Trade; (b) that you will not use the services, including any deliverables, in a way that would give rise to a legal claim by a third party against us; and (c) you will not, during the provision of the services or for a period of 12 months thereafter, employ or engage our employees or contractors to provide services to you directly, and you accept that this restraint is necessary to protect our interests and that damages are not a sufficient remedy.
We may terminate the services for convenience by giving you 14 days’ notice. We may also terminate the services immediately if: (a) you breach an obligation in these Terms of Trade and fail to remedy such breach, where it is capable of remedy, within 7 days of being notified of the breach; (b) you do or fail to do anything that negatively affects the provision of the services by us to you and fail to remedy such act or inaction, where it is capable of remedy, within 7 days of being notified of such by us; (c) you fail to make any payments to us by the due date; (d) a receiver, receiver & manager, trustee, administrator, provisional liquidator or liquidator is appointed to manage your affairs or you are adjudged to be insolvent or bankrupt; or (e) you cease to carry on your business or are unable to pay your debts as they fall due.
To the maximum extent permitted by law, all warranties, conditions, guarantees, liabilities or terms not set out herein are excluded. If a warranty, condition, guarantee or liability cannot be excluded at law but we are able to limit our liability for its breach, we do so hereby limit our liability, including by supplying the services again or paying the cost of having the services supplied again. You must use your reasonable endeavours to mitigate any loss or damage suffered by you in relation to our services.
12. Maximum liability
To the maximum extent permitted by law, our aggregate liability to you for all claims arising in relation to the services is limited to all payments paid by you to us in the six months leading up to the relevant claim. However, we are not liable to you for any loss of profits, loss of business, loss of opportunity, loss of goodwill, loss of revenue, loss of data or corruption of data, or any indirect, consequential or special damage whatsoever, even if we were advised of the possibility of any such loss or damage.
In the event of any dispute arising in relation to the services, the parties must, within 14 days of such dispute arising, seek to resolve, in good faith, such dispute before approaching the court for any relief (other than urgent relief).
Any failure or delay by a party to compel performance by the other party does not constitute a waiver. Any provision in these Terms of Trade which are unenforceable or invalid shall not affect the remainder of the provisions herein.
You may not assign your rights and/or obligations under these Terms of Trade.
All rights and obligations in clauses 3, 4,5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16 and 17 survive the termination or expiry of the services.
These Terms of Trade are governed by the laws of, and you submit to the non-exclusive jurisdiction of the courts in, New South Wales, Australia.