Terms of Engagement

1. Definitions in this Agreement:

We curate and bring together all the elements for our clients to drive leads, gain exposure and convert. We understand what it takes for brands to gain traction and turn the heads of customers.

1.1. Agreement means the agreement between the Customer and the Company for the supply of the Services comprising:

(a) these terms and conditions;
(a) these terms and conditions;
(a) these terms and conditions;

1.2. ‘Business Day’ means a day other than a Saturday, Sunday or Public Holiday in New South Wales;

1.3. Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);

1.4. Company means Mintwell Pty Ltd (ACN 616 609 548), Australian Credit Licence Number 502181, trading as mintwell.com.au.

1.5. ‘Confidential Information’ means this Agreement as well as any information of a confidential or proprietary nature in relation to either party including without limitation, details of the business methods, trade secrets, or any financial information or anything related to either party.

1.7. Estimated Timeframe means the estimated time which the Company considers will be necessary to complete the Services and is as outlined in Item 2 of the Reference Table or if not there, in the Scope of Work Document.

1.8. Exceptional Circumstances means any failure by the Company to provide any service required under this Agreement due to strikes, labour disputes, fire, floods, accidents, invasions, riots, mobs, wars, national emergencies, embargoes, lockdowns mandated by the government or restraints, extreme weather or traffic conditions, car breakdowns, temporary closure of road or broken keys;

1.9. Extra Work means additional services or costs incurred by the Company on behalf of the Customer, which are in addition to those contemplated for in the Scope of Works Document but which are carried out at the request of the Customer. Such Extra Work will attract additional fees at the standard rate charged by the Company or at the rates agreed by the parties.

1.10. Fees means the fees chargeable by the Company as specified in the Scope of Works Document or as otherwise notified to the Customer and as amended from time to time by the Company;

1.11. Interest Rate means the rate of 12% per annum;

1.12. Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;

1.13. ‘Privacy Act’ means the Privacy Act 1988 (Cth) as amended from time to time including the Australian Privacy Principles.

1.14. ‘Personal Information’ has the meaning given to it in the Privacy Act.

1.15. ‘Privacy Law’ means any law which relates to the privacy or confidentiality of information about individuals and with which each party must comply including the Privacy Act and any applicable State or territory health/privacy legislation.

1.16. Parties means the Company and the Customer, and Party shall mean either one of them;

1.17. Reference Table means the form titles as such on the front page of this Agreement.

1.19. Scope of Works Document means the document provided to the Customer by the Company which outlines the scope of works to be provided by the Company to the Customer, the fees and any other conditions of the service to be provided by the Company to the Customer.

1.20. Services means the services to be provided by the Company as outlined in the Scope of Works Document, whether through its employees, subcontractors or agents from time to time.

2. Interpretation

2.1. A reference to persons includes an individual, the estate of an individual and their heirs and assigns.

2.2. The singular form of a word includes the plural and vice versa.

2.3. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2.4. References to clauses are to clauses of this Agreement.

2.5. Headings are for convenience only and do not affect interpretation.

2.6. References to any document include references to such document as amended, novated, supplemented, varied or replaced from time to time.

2.7. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.

2.8. In the event of any inconsistency or conflict between the requirements and provisions of these Terms and Conditions and the requirements and provisions of the Reference Table or any other document, then the requirements and provisions of the Reference Table will prevail, then these Terms and Conditions and then any other document to the extent of such inconsistency or conflict to the intent and purpose that the Reference Table and these Terms and Conditions set out the paramount intentions and agreements of the parties to this Agreement.

3. Agreement to provide the Services

3.1. In consideration of the payment of the Fees, the Company shall provide the Services to the Customer as outlined in the Scope of Works Document.

3.2. All services provided by the Company (including costs incurred on behalf of the Customer) which are provided/ incurred at the request of the Customer but which are not specifically referred to in this Agreement and the Scope of Works Document shall be considered Extra Work and in all such cases the Customer agrees to pay, at the rate of the standard applicable Fees, for such Extra Work, or at a fixed price quoted in advance, in writing by the Company, if applicable.

4. Warranties

4.1. The Company warrants that, for the duration of this Agreement:

(a) it shall provide the Services with reasonable care and skill to the best of its ability;
(b) it shall provide the Services in compliance with all relevant legislation, regulations, Australian Standards, and codes of practice;
(c) the Services shall be performed by such Representatives that the Company may choose as most appropriate to carry out the Services; and
(d) it shall be solely responsible for the payment to the Company’s Representatives of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as the Company’s Representatives and to otherwise comply with legislation applicable to the Company’s Representatives.

4.2. Nothing in this Agreement constitutes the relationship of partnership or employer and employee between the Company and the Customer or between the Customer and the Company’s Representatives and it is the express intention of the parties that any such relationships are denied.

4.3. The Customer warrants and acknowledges that, except as otherwise provided in this Agreement:

(a) It will be and remain liable for any breach of this Agreement for which the Customer or its Representatives are responsible;
(b) It has not relied upon any representation, advice or warranty from the Company or its Representatives except as specifically set out in this Agreement and it is reasonable for the Company to limit its liability in the manner set out in this Agreement.
(c) The prices charged by the Company in this Agreement are based solely on the value of the Services and do not factor in any Extra Services;
(d) Time is of the essence for payment of all monies due to the Company under this Agreement. Any unpaid amounts will accrue interest at the Interest Rate from the date that the Fees were due and payable;
(e) The Customer shall not:-

(i) approach, canvass or induce any of the Company’s staff (or other Representatives) to gain employment or enter into contracts directly with the Customer; nor
(ii) allow any of the Company’s employees (or other Representatives) to gain employment or enter into service contracts with the Customer; nor
(iii) engage a third party provider to provide services similar to the Services where such third party provider engages the services of a former employee or sub-contractor of the Company, for a period of twelve (12) months after the expiry or termination of this Agreement and in all cases agrees that a breach of this clause entitles the Company to liquidated damages from the Customer in the sum of at least $30,000.00 per occurrence, being a true estimation of the loss likely suffered by the Company as a result.
(f) The Customer exclusively engages the Company to perform the Services and must not engage any other party to perform services of a similar nature to the Services whilst this Agreement is ongoing.

5. Insurance

5.1. Subject to clause 5.2, the Company will obtain and maintain appropriate insurance in relation to the performance of the Services (if applicable).

5.2. In the event that the Company uses a sub-contractor to provide the Services, the Company will take all reasonable steps to ensure that the contractor engaged by the Company has all relevant insurances (if applicable) and that such subcontractor complies with the terms of this Agreement (including as to confidentiality).

6. Liability and indemnity

6.1. Subject to clause 4.3, the liability of the Parties under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall be limited in accordance with this clause 6.

6.2. The cumulative liability of the Company in respect of all Claims made in respect of or in connection with this Agreement, shall not exceed a sum equal to the Fees.

6.3. Subject to clause 4.3(e), neither Party shall be liable to the other Party in contract, tort, negligence, in equity, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

6.4. The Customer releases, indemnifies and holds harmless the Company from any claim made against the Company or the Customer by any party whatsoever arising from a breach of copyright or other intellectual property or other provisions of consumer law by the Customer.

6.5. For the avoidance of doubt, the Customer indemnifies, releases and holds harmless the Company for any loss, damages, Claims or expenses (including legal costs on a solicitor and own client basis) which directly or indirectly results from circumstances outside the Company’s and its Representative’s.

6.6. The Customer must notify the Company within 14 days of becoming aware of a claim or potential claim against the Company arising out of the provision of the Services or out of any act or omission of the Customer (including as contemplated for in clause 6.4).

6.7. If a claim is made against both the Company and the Customer, if required by the Company, the Parties will use their best endeavours to agree on a preferred legal provider.

6.8. If a single legal representative is appointed to represent the Company and the Customer in respect of a claim to which the indemnities under this Agreement apply, the Company is to be kept informed of developments in respect the claim(s) on a periodic basis.

6.9. The Customer agrees that in the course of settling any claim made against it in respect of the Services, it will seek and obtain a release and indemnity from the claimant in respect of further claims against the Company arising out of or relating to the subject matter of the claim.

6.10. The releases and indemnities contained in this clause 6 are continuing Obligations and will survive termination of this Agreement.

6.11. It is not necessary for a party to incur an expense or make a payment before enforcing a right of indemnity conferred by this Agreement.

7. Fees

7.1. Payment of the Fees must be made by the Customer to the Company within the period outlined in Item 4 of the Reference Table after the issuing of a tax invoice by the Company to the Customer.

7.2. The Company shall be entitled to invoice the Customer from time to time and on such occasions as the Company may determine, acting reasonably or as otherwise outlined in the Scope of Works Document.

7.3. All amounts stated, unless otherwise outlined, are exclusive of GST and any other applicable taxes, which will be charged in addition to the Fees and shall be required to be paid by the Customer.

7.4. If the Customer does not make a payment by the date stated in an invoice or as otherwise provided for in this Agreement then the Company shall be entitled to:

(a) charge the Customer interest on any overdue monies at the Interest Rate, applied on daily balances;
(b) in addition to any interest, charge a late fee of $22.00 (including GST) to the Customer, such fee to accrue and be charged on a weekly basis, until all outstanding moneys owed by the Customer to the Company are paid;
(c) require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;
(d) not perform any further Services (or any part of the Services), but any such performance or part performance of the Services in such case is not a waiver of this right to cease doing so; and
(e) terminate this agreement with all outstanding amounts to remain as a debt due and payable by the Customer to the Company.

7.5. When making a payment the Customer shall quote relevant reference numbers and the invoice number.

7.6. If the Company fails to carry out the Services before the date appointed for payment of the Fees the Customer may (notwithstanding any other right or remedy) give notice to the Company of its intention not to pay the Fees until such Services have been duly carried out and upon so doing may withhold payment accordingly.

7.7. The Customer does not have any rights to reduce the Fees by way of set-off or counter claim.

7.8. The Company may increase the price of the Services as required to meet market demand but before doing so it will notify the Customer in writing. Such increases shall not affect any works which form part of the Scope of Works Document.

7.9. Notwithstanding any other provision in this document, the Customer acknowledges that:

(a) as part of the works to be carried out by the Company, the Company may be required to make certain commitments to third parties (such as Google, Amazon Web Services etc) which require minimum commitments (i.e a 12 month subscription at $100 incl GST per month).
(b) Such minimum commitments referred to above shall be outlined to the Customer as part of the Scope of Works Document and the Customer, by signing this agreement agrees to be bound by such minimum commitments.
(c) If this agreement is terminated for any reason whatsoever, then within seven (7) days of such termination, the Customer shall pay to the Company the total sum of such minimum commitment (in the above example being $1,200 incl GST). Until such amounts have been paid in full to the Company, the Company may withhold any works which it is yet to provide to the Customer, and interest shall accrue on all unpaid sums at the Interest Rate until the outstanding sum and any applicable interest has been paid in full.
(d) In circumstances where the Company is required to outlay a significant sum of money for certain services, the Company may require the Customer for an upfront payment to cover any such costs in the event that this Agreement is terminated.

7.10. By making payment of the Fees to the Company, the Customer acknowledges and agrees that the relevant work has been performed by the Company in accordance with this agreement and accordingly, subject to any legal requirement to the contrary, no refund shall be given to the Customer under any circumstances.

8. The Term

8.1. This Agreement shall become effective on the date that it is signed by the Customer and shall, unless terminated earlier pursuant to clause 10 continue until the Services have been performed and all Fees (including any Extra Fees) have been paid in full.

8.2. If at the request of the Customer, further Scope of Works Documents are provided by the Company to the Customer, it is agreed by the parties that any further works shall be on the same terms as this agreement and there is no need for parties to execute a new document. A written confirmation that the Customer accepts the further Scope of Works shall be considered sufficient for the parties to enter into a new agreement.

9. Confidentiality

9.1. The Company acknowledges that, during the performance of the Services, the Company and/or their Representatives may, from time to time, have access to Confidential Information belonging to the Client. The Company shall, and shall procure that its Representatives shall, keep the Confidential Information of the Client confidential and secret.

9.2. The Customer acknowledges that, during the period under which the Services are being performed, may, from time to time, have access to Confidential Information belonging to the Company. The Customer shall, and shall procure that its Representatives shall, keep the Confidential Information of the Company confidential and secret.

10. Termination

10.1. Without prejudice to any other rights which the Company has, the Company may terminate this Agreement immediately by giving written notice to the Customer if:

(a) any payments due from the Customer to the Company under this Agreement are more than 14 days overdue (whether or not the Company has demanded payment);
(b) the Customer is presumed insolvent within the s 459C(2) of the Corporations Act 2001 (Cth);
(c) being a natural person, the Customer dies;
(d) if for any reason the Company’s right to operate business expires or is terminated for any reason;
(e) the Customer commits an act of bankruptcy;
(f) the Customer is placed into, or any of its assets are subject to, external administration or if any proceedings are issued or an event occurs intended to lead to any of those consequences or if any other action relating to insolvent debtors occurs in relation to the Customer or if the Customer ceases to carry on its existing business;
(g) any judgment is entered against the Customer for a sum of not less than $5,000 and is not satisfied by the Customer within 14 days of being entered;
(h) The Customer has breached a warranty provided under this agreement, including warranties that it owns the relevant materials, websites, applications or other property (including intellectual property) including as outlined in the Scope of Works Document; or
(i) the Customer breaches any of the terms of this Agreement and within 7 days of receiving a notice from the Company specifying the breach, has not remedied it.

10.2. If this Agreement is terminated prior to the provision of the Services, due to any reason other than the fault of the Company, then the Customer covenants and agrees to, within fourteen (14) days pay to the Company any Fees due to the Company for work performed until the date of termination.

10.3. The Customer may terminate this Agreement:

(a) if the Company is in breach of its obligations under this Agreement and does not, within 21 days after receiving written notice from the Customer of a breach of this Agreement, remedy that breach; or
(b) if there are no amounts outstanding to the Company, the Customer may give the Company 30 days written notice that it does not intend to acquire any more Services from the Company in the future and this Agreement will at the end of those 30 days be terminated provided that upon the date of termination there is no amount outstanding from the Customer to the Company under this Agreement.

11. Intellectual Property

11.1. The parties acknowledge that all rights in respect of patents, certification, test data, copyrights, design rights, code, trademarks or other industrial or intellectual property rights (IP Rights) shall remain with the party that owns them and shall not be passed on to the other party.

11.2. Any created IP Rights shall be owned by the parties jointly and a perpetual licence is granted by a party to other to utilise such created IP Rights, however such licence does not include utilising any logo of a party (without their written consent) or where it is in combination with any IP Rights already owned by that party.

11.3. The Customer confirms that the Customer’s, logo and intellectual property does not infringe or violate or conflict with the right or intellectual property of any other entity and shall indemnify Company in any event of a breach of this clause.

11.4. Each party indemnifies the other from any losses incurred by a party as a result of a party’s breach of this clause.

12. Notices

12.1. Any notice given to the Company must be in writing and sent to the postal address, facsimile number or email address noted on the last correspondence provided by the Company or listed on the Company’s website. The Company may send any notice given or invoice provided pursuant to this Agreement to any address, facsimile number or email address that the Customer has provided at the time of entering into this Agreement and will be deemed sufficiently given:

(a) in the case of hand delivery, on the date of delivery; or
(b) in the case of prepaid post, 3 business days after being sent by prepaid post; or
(c) subject to clause 12.1(d), in the case of Electronic Communication, on receipt by the sender of electronic confirmation that the Electronic Communication has been received by the recipient party.
(d) in the case of email, evidence that the email has been successfully sent will be prima facie evidence of the addressed recipient’s receipt of that email at the time of dispatch.

13. General Provisions

13.1. This Agreement is to be construed according to the laws of New South Wales and the parties submit themselves to the jurisdiction of the Courts of New South Wales and any competent appellate courts.

13.2. The failure of a party to insist in any one or more instances upon the performance of any provisions of this Agreement will not be construed as a waiver or relinquishment of that party¹s rights to future performance of such provision and the other party¹s obligation in respect of such future performance will continue in full force and effect.

13.4. Neither party will be liable for any failure to perform or delay in performance of its obligations hereunder other than an obligation to pay moneys caused by (i) Act of God (ii) outbreak of hostilities, riot, civil disturbance, acts of terrorism (iii) the act of any government or authority (including, revocation of any license or consent) (iv) explosion, flood, fog or bad weather (v) theft, malicious damage, strike, lockout or industrial action of any kind (vi) any cause or circumstance whatsoever beyond its reasonable control.

13.5. The Company shall not be liable for any non performance of the Services as a result of any Exceptional Circumstances.

13.6. If the Customer consists of any more than one person and or entity, then the provisions of this Agreement are binding on each of them jointly and severally.

13.7. This Agreement constitutes the whole agreement between the Customer and the Customer in relation to its subject matter and the Customer warrants that the Company has not relied upon any statement, representation or warranty made by the Company or its servants or agents that is not expressed in this Agreement.

13.8. This Agreement will not be amended or varied unless the amendment is in writing and executed by both parties. Any future changes or amendments made to this Agreement by the Company will supersede any changes or amendments made by the Customer that were previously agreed to by the Company.

14. Privacy

Each party must ensure that its Representatives comply with all Privacy Laws in respect to the Personal Information collected, held, used, disclosed and otherwise handled by them in relation to this Agreement.

15. Dispute Resolution

15.1. In the event of a dispute between the parties regarding any non-payment or other matters relating to this agreement, the Company shall seek (but not be obliged to seek) to commence a settlement process with the Customer in a bid to resolve the dispute in an equitable outcome between both parties.

15.2. The settlement process may or may not require the need for legal counsel if both parties can agree to the terms of the resolutions decided upon.

15.3. In the event of a failure to resolve the dispute under this clause the parties shall be entitled to commence any legal action to enforce the terms of this agreement including but not limited to debt collection proceedings under the jurisdiction of this agreement.

16. Independent Advice

Each party has been given the opportunity to seek independent legal and financial advice with respect to the content and effect of this Agreement and has sought such advice as it deems necessary.

17. Electronic Execution

17.1. For the purposes of section 8 of the Electronic Transactions Act 2000 (NSW), the parties consent to information being given by electronic communication.

17.2. This Agreement may be entered into and becomes binding on the parties named in the Agreement upon one party signing the Agreement that has been signed by the other party (or a photocopy or facsimile copy or a counterpart of the same) and transmitting an email or facsimile copy thereof to the other party or to the other party’s agent or solicitors.