Terms and Conditions

1. Definitions

1.1. ‘’Campaign” means a set of deliverables to be executed by Us over an agreed timeframe. Campaigns are set out in “Campaign Outlines”, which will be created by us and signed off by You. The first Campaign Outline is on Page 3 of this Agreement.

1.2. “Unit” is how we price our deliverables. Units are transferable, allowing You to adjust your Campaigns as required. Our available deliverables, along with their unit prices, are listed on our Content Catalogue..

1.3. “Content” means text, images, graphics, video and other information provided by Us under this Agreement. Content is limited to completed works as delivered to You. Content does not include constituent parts (including but not limited to stock images, source files for graphics, raw video footage) used to create completed works.

1.4. “Content Marketing Technology Platform” means Our Content API and related technology used by Us to provide service under this Agreement.

1.5. “API” means Brafton’s Content API, which is used to deliver content to Subscriber for publication on websites or blogs.

1.6. “Editorial Brief” or “Brief” is a document that sets out the rules and policies to be applied to the content.

1.7. “Fees” means the fees payable by You under this Agreement including Annual Partner Fees, Set-up Fees and Campaign Fees..

1.8. “Intellectual Property Rights” means all current and future intellectual property rights including patents, designs, copyright and trademarks whether registered or unregistered, including the right to apply to register those rights, and all similar or analogous rights throughout the world.

1.9. “User” means an individual obtaining access to Content provided to You under this Agreement.

1.10. “CPI” means the Australian Consumer Price Index (All Groups.

1.11. Consumer Legislation means the Trade Practices Act 1974 (Cth), the Competition and Consumer Act 2010 (Cth) or any other similar legislation.

2. Payment

2.1.. We will invoice You for the Fees in advance. You must pay the invoiced Fees to Us in full and clear funds within 30 days of the date of the invoice.

2.2. After 30 days, unpaid invoices may be subject to a late payment fee equal to 5 per cent, or the highest rate allowed by law, whichever is lower, of the total invoice value.

2.3. If Your account becomes delinquent, We may suspend service. If service is suspended You remain liable to pay for any Campaigns that have a signed Campaign Outline..

2.4. Once a Campaign Outline has been signed, You remain liable to pay the Fees and will be entitled to receive service until the Campaign has been delivered.

3. GST

3.1. The consideration for any supply made under or in connection with this Agreement does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration). Any amount referred to in this Agreement which is relevant in determining a payment to be made by one of the parties to the other is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis.

4. Use of Service

4.1. We will liaise with Your appointed editorial and technical representatives, who We are entitled to treat as authorised to bind You on editorial and technical issues respectively. You may change such representatives at any time on reasonable written notice to Us.

4.2. Before your first Campaign, We will liaise with your editorial representatives to create an Editorial Brief. We will liaise with Your technical representatives to provide reasonable assistance with the installation of our Content API.

4.3. Subject to You having paid all Fees due to Us, We grant You an exclusive, non-revocable, worldwide and royalty-free licence to use the specific content as You see fit. Your aforesaid right to use shall include and not be limited to the right to reproduce, adapt, translate, make derivative work, distribute, sublicense, publicly perform and publicly display. This licence survives termination of this Agreement and can be assigned by You in the event of a sale, merger or acquisition.

4.4. Under no circumstances will You sell content provided under this Agreement to any third party. Proceeds from any unauthorised sale of content shall be held by You in trust for Us absolutely.

5. Standard of Service

5.1. Our Content Marketing Technology Platform is hosted by third party suppliers that maintain Service Level Agreements of at least 99 per cent up time.

5.2. We will use reasonable efforts to minimise interruptions to the service and to notify You in advance where possible, but there may be times when the service is unavailable.

5.3. Information provided by the Service is intended for general reference and interest only. Application of that information to any specific instance is the sole responsibility of the User.

5.4. It is our responsibility to provide content which does not infringe the Intellectual Property Rights of any person, is not unlawful in Australia, is not defamatory or libellous; and is not obscene, offensive, threatening, menacing or blasphemous. This responsibility does not extend to any changes made by You or by any third party. We accept no responsibility for edits, amendments or additions made by You or by any third party.

5.5. We will ensure that the content complies with the requirements of Australian regulatory bodies. If You intend to use the content, or for the content to be accessed, outside of Australia it is Your responsibility to ensure that it complies with the regulatory regimes of jurisdictions other than Australia.

5.6. If We become aware that any item of Content We have provided may be inaccurate or that its publication may be unlawful and request You to withdraw it, You will do so immediately.

5.7. We will make all reasonable efforts to deliver Campaigns within agreed timeframes. The fees due to Us and the due date of invoices remain unaffected if You elect to delay part or all of a Campaign once a Campaign Outline has been signed.

5.8. Unused Units will expire at the end of each Campaign unless an exception is agreed in writing between Us.

5.9. Any edits to content provided under this Agreement will be made in line with our Editing Policy.

6. Termination

6.1. Either party may terminate this Agreement on written notice if the other party materially breaches the Agreement and fails to remedy that breach within 20 days of notice.

7. Intellectual Property Rights

7.1. You acknowledge that the Intellectual Property Rights in all content is and remains the exclusive property of Brafton or of its licensees (as the case may be). Under no circumstances will You have any claim to ownership of any Intellectual Property Rights in any content.

7.2. You own any data, information or material created by You that You submit, collect or provide in the course of using the service (Client Information). We have no ownership rights in or to Client Information. You will be solely responsible for the accuracy, quality, content and legality of Client Information, the means by which Client Information is acquired and the use of Customer Information outside of this Agreement.

8. Staff

8.1. Our staff are our most valuable asset. You acknowledge that if You were to engage or try to engage our production, account management or business development staff without our agreement, we would suffer serious loss. You will not engage or try to engage any of our employees without our prior written consent for the duration of this Agreement and for a period of 12 months after this Agreement terminates.

8.2. If any part of the restraint in clause 8.1 is found to go beyond what is reasonable and necessary to protect Our interests and goodwill in particular circumstances, but would be found reasonable and necessary if any period or area was reduced, then the restraint applies with that period or area reduced by the minimum amount necessary.

9. Liability

9.1. Our liability for any loss or damage arising directly or indirectly in any way in connection with the service or this Agreement (whether under contract, law of tort (including negligence), statute, in equity, under a consumer guarantee or otherwise) is limited to Us doing any of the following (at Our election): a) supplying the services again; or b) paying the cost of having the services supplied again.

9.2. Subject to clause 9.1, We are not liable for any consequential loss or damage, or for any loss of profit, business, revenue, goodwill or anticipated savings, however caused.

9.3. The Fees for the service are set on the basis that liability rests as provided by this clause.

10. Force Majeure: We are not liable for any failure to fulfil Our obligations caused by circumstances beyond our reasonable control, provided that We use reasonable efforts to do so and that We notify You of the effect of such circumstances.

11. Confidentiality: Except as otherwise agreed in writing or as required by law, both parties agree to keep all information of a confidential nature, including the terms of this Agreement and the Fees, which is disclosed in connection with this Agreement (apart from information in the public domain) in confidence and to only disclose such information to employees, officers and contractors who require such information for the purposes of satisfying this Agreement.

12. Entire Agreement: This Agreement states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

13. Reliance on representations: No party has relied on any statement by the other party not expressly included in this Agreement.

14. Notice: All notices under this Agreement shall be in writing. Notice shall be deemed given where sent by email and acknowledged by the recipient.

15. Law: This Agreement is governed by the law in force in New South Wales, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.

16. Counterparts: This Agreement may be executed in any number of counterparts.

17. Invalidity and enforceability: Nothing in this Agreement is intended to exclude, restrict or modify rights which You may have under common law, Consumer Legislation, other legislation or otherwise (Relevant Laws) which may not be excluded, restricted or modified by agreement. If any provision of this Agreement is invalid under any Relevant Laws, that provision is enforceable to the extent that it is not invalid, whether it is in severable terms or not.

18. Survival: Any obligations or rights which are expressed to, or by their nature, survive termination of this Agreement will survive termination of this Agreement.