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HEDGEHOG AUSTRALIA PTY LTD

MARKETING SERVICE AGREEMENT 

This agreement governs the terms and conditions under which Hedgehog Australia Pty Ltd ABN 616 230 516 (“Provider”, “we”, “us” or “our”) provides services to the client named below (“Client”, “you” or “your”). The first part of the agreement is the key terms (“Key Terms”), followed by the legal terms and conditions (“Legal Terms”). The Key Terms and Legal terms form the agreement (together, the “Agreement”).

 

KEY TERMS

Item

 

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OUR DETAILS

NAME: Hedgehog Australia Pty Ltd

ABN: 616 230 516

PHONE: 0481 539 996

CONTACT: Josh Berg

EMAIL: jberg@hedgehogmarketing.com.au

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YOUR DETAILS

NAME: Client Business Name

ABN: Client ABN if relevant.

PHONE: 0402 082 466

CONTACT: Client Name

EMAIL: Client Email

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SERVICES & DELIVERABLES 

We will provide you with the marketing Services outlined on the Plans page of the Hedgehog Marketing website.

 (the “Services”). 

We will provide the tangible deliverables produced or generated as a result of the Services (including, but not limited to, any content, processes and/or materials) (the “Deliverables”).

 

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FEES 

Fees are as per those detailed on the Plans page on the Hedgehog Marketing website.

For extra support a charge of $100 + GST per hour additional fee will be charged.

Other deliverables which were detailed in the proposal email may be charged if mutually agreed between both parties.

(the “Fees”)




 

LEGAL TERMS



 

  1. Services & Deliverables

    1. We will perform the Services and produce any Deliverables in return for payment of the Fees.

    2. We shall not be obliged to provide any Services or produce any Deliverables which are not contained within this Agreement.

    3. We will use our best efforts to ensure that the Services and/or Deliverables are provided in accordance with agreed upon timeframes.

    4. We will be available to provide the Services from Monday to Friday between the hours of 9:00am to 5:00pm Australian Eastern Standard Time, excluding all public holidays.

    5. Depending on the nature of the Services, and your needs, the Services will be provided online, or in person, as agreed in writing by the parties.

  2. Commencement Date and Term

    1. This Agreement commences on the date that it is signed by both parties (“Commencement Date”) and continues until the completion or expiration of the Services, subject to any extension or earlier termination in accordance with clause 11 (“Term”).

  3. Process

    1. We are only required to begin performing the Services and producing the Deliverables once we have received the Fees for the applicable month in accordance with clause 5 and any initial set up fee (if applicable).

  4. Fees 

    1. The Fees may be subject to change if you make additional requests to those initially contemplated by this Agreement..

    2. The cost of any additional Deliverables requested by you beyond those set out in this Agreement or otherwise agreed to, will be agreed between the parties in writing from time-to-time. 

 

    1. You may change your Services package (as set out in the Key Terms) to another package if:

      1. you provide us with written notice of this request; and 

      2. we provide written acceptance of such a request (which will not be unreasonably withheld or delayed);

prior to the first date of the next month.  

    1. Following our acceptance under clause 4.4, your package and applicable Fees will be amended for the following month and all subsequent months. 

    2. Any written notice under this Clause 4 may be sent via email.

  2. Payment 

    1. On Commencement of the Agreement we will send you an invoice for the Fees relating to the first month (adjusted pro rata to reflect the Commencement date) (“Initial Payment”).

    2. The Initial Payment is due and payable on the Commencement date. 

 

    1. Thereafter, for the duration of the Term, we will send you invoices seven (7) days prior to the start of each month for the Fees relating to that upcoming month. 

    2. All invoices (other than the Initial Payment) are due and payable on the first date of the relevant month.

    3. Additional Deliverables or Services are invoiced as 50% upfront and 50% upon completion of the Deliverable or Services, or 60 days after the start of the project – whichever comes first.

    4. All invoices for Additional Deliverables or Services are due and payable within seven (7) business days of being issued.

    5. All payments will be processed via automated credit card payments or direct debit through Wix Payments. 

    6. You may cancel, defer or change a direct debit / credit card request by notifying us in writing at accounts@hedgehogmarketing.com.au] at least seven (7) days before the day on which your next payment is due.

    7. If payment of an invoice is not received by any due date described in this Agreement or on the tax invoice provided to you, we will be entitled to:

      1. withhold provision of the Services, any Deliverables until payment is received in full; 

      2. terminate this Agreement pursuant to clause 11; 

      3. charge interest on the outstanding amount at the rate of fifteen per cent (15%) per annum; and/or

      4. pass on to you any fees associated with debt collection in relation to outstanding amounts owed by you and you agree be liable for such amounts. 

 

    1. All amounts payable under this Agreement are expressed on a GST exclusive basis. If GST is payable in relation to a taxable supply, the amount payable for that taxable supply will be the amount specified in this Agreement plus GST and the Retailer will pay to the Supplier, an additional amount equal to the GST payable on that supply.

    2. GST means the goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999, the rate of which (currently 10%) is multiplied to any payment (or the relevant part thereof). 


  2. Your Obligations

    1. You acknowledge and agree that for us to be able to provide the Deliverables or the Services without interruption at your cost, you will ensure that you:

      1. cooperate with us in the performance of the Services and provision of the Deliverables; and

      2. promptly provide us with full and accurate information, data and explanations as and when required.

    2. If we are delayed or obliged to spend additional time or incur additional expenses in the performance of any of our obligations under this Agreement, by reason of your acts or omissions or failure to provide information or perform your obligations under this Agreement, then you shall pay us any additional reasonable costs and expenses we have incurred.

  3. Warranties

    1. We will use reasonable care and skill in performing the Services and providing the Deliverables.

    2. We will investigate any problem in the Services or Deliverables, provided that you notify us in writing within seven (7) days following provision of the Services or delivery of the Deliverables, giving us all necessary information to be able to investigate the problem, breach or error and limit our liability to the right to re-submit the Deliverables or re-perform the Service.

    3. Except as provided in this Agreement no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by us other than as required at law.

  4. Liability and Exclusions

    1. Our liability for the loss or damage to your tangible property, arising out of or in connection with our provision of the Services or Deliverables, shall be limited in accordance with clause 8.2 of this Agreement.

    2. Our total liability for direct losses or damage in contract, tort, misrepresentation or otherwise arising out of or in connection with this Agreement, or the performance of our obligations under this Agreement or the provision of the Services and Deliverables shall be limited to the total Fees paid (excluding GST and expenses) by you to us for the Services or Deliverables (as applicable) in the twelve (12) months immediately prior to the event(s) complained of.  

    1. Neither party will be liable to the other party for any indirect or consequential loss, including but not limited to loss of profits or business opportunity, whether arising under breach of contract, tort or any other legal principal and regardless of whether a party has been advised of, knew of, or should have known of the possibility of such loss. 

  1. Intellectual Property

    1. Intellectual Property Rights means all present and future rights resulting from intellectual activity whether capable of protection by statute, common law or in equity and subsisting anywhere in the world in relation to registered and unregistered copyright, inventions, patents, patent rights, utility models, confidential information, trade secrets, technical data and know-how, registered and unregistered designs, patent registrations, patent applications, trade marks, domain names, social media accounts, inventions, business or company names, proprietary processes and formulae, technology, interfaces, software source code and object code, algorithms and all rights and interests of a like nature, together with all documentation pertaining to the aforementioned rights and interests.

    2. Subject to this clause 9, you recognise and acknowledge that all Intellectual Property Rights created out of performance of this Agreement immediately and automatically vests with us.

    3. We have, at considerable time and expense, created unique content for the purpose of performing the Services, including, but not limited to, workshops, manuals, the Hedgehog Dashboard hosted on our website, reports and documents and the processes from producing these materials, workshops, manuals, reports and documents (“Hedgehog Content and Processes”). 

    4. Subject to the terms of this Agreement, we will retain ownership of all Hedgehog Content and Processes, including all Intellectual Property Rights created by us in Providing the Services and Deliverables to you.

    5. Ownership of all content and/or materials produced specifically for sole use by you (such as bespoke Client documents relating to strategic direction) is assigned and transferred to you (“Client IP”).

    6. Any content, processes and/or materials that overlap with pre-existing Hedgehog Content and Processes (“Commonplace Content”) shall remain the property of Hedgehog Australia and separate assignment of this material may be obtained through a separate deed of assignment with our consent (in our sole discretion).

    7. You grant us an irrevocable, non-exclusive, non-transferable, royalty-free license to use the Client IP for promotional and marketing purposes.  

    8. All materials and Intellectual Property Rights created for you by us, but not used by you, will be retained by us, including, but not limited to: any unused ideas, logos, content, trademarks, pictures, packaging, creative writing and any creative materials produced by Hedgehog Australia.

  2. Confidentiality

    1. Both parties agree not to use or disclose confidential information relating to or owned by the other, received or disclosed to it by the other party during the term of this Agreement, save for use or disclosure required in order to perform their respective obligations under this Agreement. 

    2. In particular, we uniquely develop the Hedgehog Content and Processes, the Hedgehog Content and Processes are highly confidential, and you are only permitted to use the Hedgehog Content and Processes for internal business purposes during the term of this Agreement. You must not share the Hedgehog Content and Processes with external parties without our prior written consent.

    3. The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party.

    4. You grant us permission to use and publish your name, logo and any of the Deliverables, together with reference to the fact that you are our client, in any medium whatsoever, including on our website or our marketing distributions, from time to time. 

  3. Termination

    1. We may terminate this Agreement immediately if you fail to pay our invoices and such sum remains unpaid for fourteen (14) days after notice has been given to you that such sum has not been paid.

    2. Either party may terminate this Agreement immediately on notice if:

      1. The other is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or

      2. The other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.

    3. Either party may terminate this Agreement by providing written notice to the other Party. Services will continue to be provided until the end of the month in which the notice was given. 

    4. On termination of this Agreement for whatever reason, we will be entitled to payment for all Fees properly incurred to the date of termination plus the Fees incurred during the notice period. 

  4. Situations or Events Outside our Reasonable Control

There are certain situations or events which occur which are not within our reasonable control. Where one of these occurs, we will notify you of such and attempt to recommence performing the Services as soon as the situation has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services. 

  1. Disputes 

    1. The parties must, before resorting to court proceedings (except for interlocutory or interim relief), initially refer any dispute between the parties relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 20 days. 

    2. If the dispute is not resolved within 20 days, either party may refer the matter to a mediator for mediation.  A mediator must be appointed by the parties, or failing agreement of the parties as appointed by the Chair of Resolution Institute or the Chair’s designated representative. In the absence of any agreement to the contrary between the disputing Parties, the costs of mediation will be shared equally by the disputing Parties.

    3. If, following mediation, the dispute has not been resolved, then either party may, in its absolute discretion, initiate court proceedings.

    4. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement (including any payment obligations).

  2. General

    1. Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.

    2. If any provision of this Agreement is held invalid or unenforceable, such provision shall be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of this Agreement shall continue in full force and effect.

    3. The Services and Deliverables are provided to you on a non-exclusive basis. 

    4. This Agreement shall be governed by, and construed in accordance with, the laws from time to time in force in Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.



Executed as an Agreement:
 

Agreed by an authorised representative of
Hedgehog Australia Pty Ltd
ABN 616 230 516  

 

Agreed by an authorised representative of the 

Client Name.
 

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