1. Definitions and interpretation
1.1. Defined Terms
Agreement means these terms and conditions and any other document referred to in it (including any applicable Quote).
Agreement Date means the date the Quote is accepted by the Recipient.
Approved Purpose means:
a) the purpose of marketing and promoting a party's business, products or services, including via social media channels and by way of tagging the name of the Recipient;
b) the purpose of performing its obligations under this Agreement;
c) any purpose specified in, or contemplated by, the relevant Quote; and
d) any purpose otherwise agreed between the parties.
Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in Melbourne.
Confidential Information means all confidential, non-public or proprietary information exchanged between the parties relating to the business, technology or other affairs of each party or which comes into a party’s possession pursuant to, or as a result of, negotiations or discussions in connection with this Agreement including the existence, nature and terms of this Agreement, however disclosed, other than information that it is public or information previously disclosed to the receiving party on a non-confidential basis.
Deliverables means the tangible deliverables produced or generated as a result of the Services, as specified in a Quote.
Developed IP means all Intellectual Property created or developed by Tomorrow Woman/Tomorrow Man under this Agreement, including a summary of the workshop showcasing the impact and themes from the workshop, and excludes Tomorrow Woman/Tomorrow Man IP.
Disclosing Party means a party to this Agreement who discloses or makes available Confidential Information to the Receiving Party.
Fees means any fees payable by the Recipient for the Services and Deliverables.
Force Majeure Event means an event or circumstance:
a) that is beyond the reasonable control of a party;
b) which that party is not reasonably able to prevent or overcome; and
c) which prevents that party from performing a material obligation under this Agreement,including, subject to satisfaction of the foregoing:
d) extreme weather events, fire or natural disaster;
e) acts of war, riots, terrorism or vandalism;
f) failure or shortage of power supplies or other essential utility;
g) pandemic, epidemic or other widespread threat to human health (including an outbreak or recurrence);
h) strike, embargo or industrial disturbance; i) a change in applicable law.
Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar to a party or any substantial part of its assets or any event that has a substantially similar effect.
Intellectual Property means all designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in Confidential Information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
Interest Rate means interest at the rate of 2% above the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
Loss includes any loss, cost, expense or damage, regardless of whether it is:
a) direct or indirect;
b) present or future;
c) fixed or ascertained; or
d) arising by law,
including consequential loss.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) (or equivalent legislation).
Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, phone number and any other information a person collects, including personal or personally identifiable information under applicable Privacy Laws.
Personnel means a party's directors, officers, employees, agents, facilitators, consultants, contractors or sub-contractors.
Privacy Laws means applicable privacy data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance, including the Privacy Act 1988 (Cth) and any equivalent law.
Quote means a quote for the provision of Services to the Recipient issued by Tomorrow Woman/Tomorrow Man.
Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.
Recipient means the person receiving the Services specified in any Quote, and if there is more than one person, is a reference to each of them jointly and severally.
Recipient IP means all Intellectual Property owned or licensed by the Recipient, and includes any enhancements, modifications or derivatives of the Recipient IP made after the Agreement Date, and excludes the Developed IP.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Services means the services to be provided by Tomorrow Woman/Tomorrow Man to the Recipient as specified in a Quote.
Tomorrow Woman/Tomorrow Man means Tomorrow Man Pty Ltd (ACN 627 119 402).
Tomorrow Woman/Tomorrow Man IP means all Intellectual Property owned or licensed by Tomorrow Woman/Tomorrow Man and all modifications, enhancements, derivations and updates to it, and excluding the Developed IP.
1.2. Interpretation
In the interpretation of this Agreement, unless stated otherwise:
a) a reference to a party is to a party to this Agreement and includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
b) a reference to a person includes a natural person or legal entity;
c) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
d) singular includes the plural and vice versa;
e) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and
f) any notice, agreement, consent, direction, waiver, or similar given or required in connection with this Agreement must be in writing to be effective.
2. Structure of Agreement
a) The Recipient is taken to have accepted and is immediately bound by this Agreement if the Recipient accepts a Quote.
b) The following order of precedence applies in the event of an inconsistency:
i) a Quote; and
ii) this Agreement.
3. Recipient obligations
The Recipient must:
a) provide Tomorrow Woman/Tomorrow Man with clear, accurate, complete and up-to-date information and immediately notify Tomorrow Woman/Tomorrow Man of any changes;
b) carry out its obligations in a timely and efficient manner;
c) provide appropriate follow up and support to workshop participants as appropriate (if required);
d) do all things necessary to enable Tomorrow Woman/Tomorrow Man to perform its obligations;
e) not make or publish any false, disparaging, malicious or defamatory statement (whether written or oral) about Tomorrow Woman/Tomorrow Man, its Related Bodies Corporate, the Personnel of any of those entities or the Services;
f) not make, publish or broadcast any recordings or photographs of the Services (including any workshops) delivered by Tomorrow Woman/Tomorrow Man; and
g) comply with:
i) the Agreement;
ii) the reasonable directions, policies and procedures of Tomorrow Woman/Tomorrow Man or a third party identified by Tomorrow Woman/Tomorrow Man (including requirements relating to staff being present during a workshop and the Acceptable Use Policy); and
iii) all laws and industry standards in its use of the Services and Deliverables and performance of its obligations under the Agreement.
4. Tomorrow Woman/Tomorrow Man obligations
Tomorrow Woman/Tomorrow Man must:
a) use reasonable endeavours to provide the Services and Deliverables in accordance with the relevant Quote; and
b) provide the Services and Deliverables with reasonable care and skill.
5. Fees
5.1. Payment
a) The Recipient must pay the Fees specified in the relevant Quote (including any deposits) in accordance with the payment terms in that Quote.
b) The Fees are payable within 14 days of the invoice date.
c) If the Recipient fails to pay the Fees by the due date, or any other amounts owing to Tomorrow Woman/Tomorrow Man, Tomorrow Woman/Tomorrow Man may:
i) charge interest on the outstanding amount at the Interest Rate;
ii) suspend further performance of the Services and delivery of the Deliverables under the relevant Quote, until all outstanding amounts (including any interest incurred) are paid in full;
iii) set off the outstanding amounts against any amounts owed to the Recipient by Tomorrow Woman/Tomorrow Man; and
iv) terminate the Agreement.
5.2. GST
a) A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is a reference to that term as defined or used.
b) All amounts in the Agreement are exclusive of GST, unless otherwise specified.
c) If GST is imposed on a supply made under, or in connection with, the Agreement, the recipient of the supply must pay the supplier an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.
6. Cancellation of Services
A Recipient may request to cancel the Services or Deliverables in an accepted Quote, provided that:
a) if cancellation is made 28 days or more prior to the workshop date specified in a Quote, the Recipient must pay a cancellation fee that is equivalent to 25% of the Fee; or
b) if cancellation is made less than 28 days prior to the delivery date specified in a Quote, the Recipient must pay a cancellation fee that is equivalent to the deposit paid,
noting that such cancellation fee is a reasonable pre-estimate of the losses likely to be incurred (whether direct or indirect) by Tomorrow Woman/Tomorrow Man as a result of the cancellation.
7. Intellectual Property
7.1. Tomorrow Woman/Tomorrow Man IP
a) Tomorrow Woman/Tomorrow Man owns Tomorrow Woman/Tomorrow Man IP.
b) Tomorrow Woman/Tomorrow Man grants to the Recipient a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use Tomorrow Woman/Tomorrow Man IP during the Term for the purpose of performing its obligations under this Agreement.
7.2. Recipient IP
a) The Recipient owns the Recipient IP.
b) The Recipient grants to Tomorrow Woman/Tomorrow Man a royalty-free, worldwide, non-exclusive, non-revocable, perpetual, transferrable and sub-licensable licence to use the Recipient IP for the Approved Purpose.
7.3. Developed IP
a) Tomorrow Woman/Tomorrow Man owns the Developed IP.
b) Tomorrow Woman/Tomorrow Man grants to the Recipient a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use the Developed IP during the Term for the purpose of performing its obligations under this Agreement.
8. Warranties
The Recipient warrants:
a) the use of the Recipient IP by Tomorrow Woman/Tomorrow Man will not infringe any intellectual property rights of a third party;
b) it has received all consents required to allow Tomorrow Woman/Tomorrow Man to freely use the Recipient IP without infringing any third party's rights, including Moral Rights; and
c) it will use the Services in accordance with any usage restrictions specified in the Agreement or by Tomorrow Woman/Tomorrow Man or a third party identified by Tomorrow Woman/Tomorrow Man.
d) it has obtained the written consent of the legal guardians of all workshop participants under the age of 18 for such workshop participants to attend the workshop contemplated by the Quote.
9. Liability and indemnity
9.1. Liability
a) To the fullest extent permitted by law, Tomorrow Woman/Tomorrow Man:
i) excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions, in connection with the Services or Deliverables;
ii) is not liable for consequential loss suffered by the Recipient or a third party; and
iii) is not liable for any Loss to property or for physical or mental injury or death.
b) Tomorrow Woman/Tomorrow Man’s aggregate liability under the Agreement to the Recipient or any third party, however arising, is limited to the Fees paid by the Recipient to Tomorrow Woman/Tomorrow Man under the relevant Quote that is the subject of the claim.
9.2. Indemnity
The Recipient must indemnify and keep indemnified Tomorrow Woman/Tomorrow Man, its Related Bodies Corporate, and the Personnel of those entities, from all Loss incurred by them, and all claims against them, arising out of, or in connection with this Agreement.
10. Termination
10.1. Termination of Agreement
a) Either party may terminate the Agreement with immediate effect if the other party:
i) commits a material breach of the Agreement that is incapable of remedy;
ii) commits a material breach of the Agreement (including a failure to pay any Fees) that is capable of remedy and fails to remedy that breach within 10 Business Days of receiving notice of the breach; or
iii) suffers an Insolvency Event (and the Corporations Act (2001) does not prevent termination).
10.2. Effect of termination
a) Termination of this Agreement will not affect any rights or obligations which may have accrued prior to termination, including for any prior breach.
b) On termination of this Agreement:
i) all licences and rights granted under, or in connection with this Agreement or the Quote will terminate; and
ii) the Recipient must pay any outstanding amounts owing under the Quote to Tomorrow Woman/Tomorrow Man within 7 days after termination.
c) On termination of this Agreement, the Recipient must:
i) immediately stop using the Tomorrow Woman/Tomorrow Man IP and Developed IP; and
ii) permanently destroy or return all copies of the Confidential Information of Tomorrow Woman/Tomorrow Man on request.
11. Confidential Information
11.1. Confidentiality obligations
A Receiving Party must:
a) maintain the confidentiality of the Confidential Information and not disclose it, or allow it to be disclosed to a third party, except:
i) where expressly permitted to do so under the Agreement;
ii) with the prior consent of the other party; or
iii) to its officers, employees or legal advisers who have a need to know for the purposes of the Agreement and are aware the Confidential Information must be kept confidential; or
iv) as required by law; and
b) take reasonable precautions to maintain the confidentiality of the Confidential Information.
11.2. Exceptions
The confidentiality obligations in this Agreement do not extend to information:
a) disclosed to a party which, at the time of disclosure, is rightfully known to or in the possession of that party and not subject to an obligation of confidentiality on that party;
b) that is public knowledge (except because of a breach of this Agreement or any other obligation of confidence); or
c) required to be disclosed by Law or any government agency, or for the enforcement of this Agreement,
whether before, on, or after the Agreement Date.
12. Privacy
a) Each party must comply with Tomorrow Woman/Tomorrow Man’s privacy policy and Privacy Laws in relation to Personal Information provided or made available to it under the Agreement.
b) The Recipient warrants that:
i) it has obtained the necessary consents to disclose the relevant Personal Information to Tomorrow Woman/Tomorrow Man and permit Tomorrow Woman/Tomorrow Man to use the Personal Information; and
ii) the owners of the Personal Information are aware that Tomorrow Woman/Tomorrow Man may use and disclose their Personal Information in accordance with the Agreement.
c) The Recipient must immediately notify Tomorrow Woman/Tomorrow Man and provide sufficient details if any consent referred to in clause 12(b) is withdrawn.
13. Force Majeure Events
13.1. Consequences of a Force Majeure Event
If a Force Majeure Event prevents a party from performing any of its obligations:
a) as soon as reasonably practicable, that party must give the other party notice of the Force Majeure Event; and
c) that party is excused from performing its obligations which it is prevented from performing, for the duration of the Force Majeure Event, subject to it notifying the other party.
13.2. No release from obligation to pay money
A Force Majeure Event does not excuse a party from any obligation to pay money.
13.3. Termination for extended Force Majeure Event
If a Force Majeure Event prevents a party from performing its obligations to a material degree for more than 30 consecutive days, the other party may terminate this Agreement by giving 5 Business Days' notice.
14. Independent legal advice
Each party warrants that it has:
a) been given an adequate opportunity to read this Agreement;
b) read and understood the terms of this Agreement; and
c) received independent legal advice about this Agreement or otherwise waived its rights to do so.
15. Notices
15.1. Notices
A notice, consent, waiver, direction or similar given or required under this Agreement:
a) must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;
b) must be delivered to the recipient in person or by email or registered post; and
c) is deemed to be given by the sender, and received by the recipient:
i) if delivered in person, on delivery;
ii) if sent by email, at the date and time the email was sent, as recorded by the sender’s email server, unless the sender receives an automated delivery failure notice, in which case notice is deemed not to be given or received; or
iii) if sent by registered post, 5 Business Days (or 10 Business Days, if posted outside Australia) after the date it was posted.
15.2. Electronic communication
The parties consent to giving and receiving notices electronically in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic).
16. General
16.1. Authority
Each party warrants it has the authority to enter into, and perform its obligations under, this Agreement including giving all consents, rights or powers.
16.2. Costs
Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement.
16.3. Entire agreement
This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.
16.4. Relationship of parties
a) Unless otherwise provided in this Agreement, no party is authorised to bind another party.
b) Nothing in this Agreement creates an employment, agency, trust, partnership, fiduciary or joint venture relationship between any of the parties.
c) The workshops provided are merely tools for workshopping information and should not be considered to be a substitute for medical diagnoses or provision of medical or health advice. Due to the nature of the workshops, issues of a sensitive and personal nature may arise and if required, it is the responsibility of the Recipient to provide appropriate follow-up support to the participants.
16.5. Severability
If any part of this Agreement is or becomes invalid or unenforceable under any law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.
16.6. Variations
This Agreement may only be amended or replaced by a written agreement, signed by all parties.
16.6. Waivers
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.
16.8. Governing law and jurisdiction
a) This Agreement is governed by the laws in force in Victoria, Australia.
b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria.
Last updated: November 2020
