1. Application

The following terms apply to all talent services agreements which you (the talent) enter into with Philbo Pty Ltd ACN 613 710 759 as trustee for A Green You Can Trust and The Kutsch Group Pty Ltd ACN 613 682 705 as trustee for The Kutsch Group Trust trading as Red Herring Digital ABN 45 617 061 537 (us, we or our). The terms that govern that agreement comprise these terms and the terms of the Schedule. By signing the Schedule you agree you have read these terms and will be bound by them and the terms of the Schedule. If there is any inconsistency between these terms and the terms of the Schedule, the terms of the Schedule will prevail to the extent of the inconsistency.

2. Services

2.1 You will provide the Services during the Term in accordance with this Agreement.

2.2 The Services will be provided on the dates and in the manner set out in the Schedule.

2.3 The Talent must provide the Services personally. If the Talent is a body corporate, the Services must be provided by the person set out in Item 11 of the Schedule (the “Key Person”) and the Talent must procure that the Key Person signs an undertaking in the form set out the Schedule (the “Undertaking”) and procure that the Key Person fully complies with that Undertaking. No Services will be provided or Fees payable unless and until you provide to us a copy of that fully executed Undertaking.

3. Our Responsibilities

3.1 We:

(a) will ensure that Our Materials are submitted to you in a timely manner so that you are able to perform the Services in accordance with this Agreement;

(b) will immediately inform you in writing in the event we become aware of any third-party claim for infringement of any laws or rights of that third party or any other person in connection with, or caused by the use of Our Materials; and

(c) agree that we will not use Your Materials in any way that would benefit any third party (other than the Client) or intentionally damage your reputation, name, brand, products or services.

4. Your Responsibilities

4.1 You:

(a) will perform the Services: in accordance with this Agreement and the Schedule; in a manner likely to promote the good fame and reputation of the Client and its brands, products and services; with due care, skill and diligence, and to the highest professional standards;

(b) will comply with the provisions of the Australian Association of Advertisers’ Code of Ethics in connection with your provision of the Services (to the extent applicable) and all applicable laws and the rules governing your Social Media Account;

(c) will comply with any of our or our Client’s reasonable instructions, policies and procedures as notified by us to you in connection with your provision of the Services;

(d) will promptly provide us with all information in connection with the Services and this Agreement that we may reasonably request;

(e) will ensure that any opinions and views stated by you in any Content are genuinely held by you and not misleading or deceptive in any manner;

(f) agree that it is within our absolute discretion to determine the amount of the Advertising Spend we or the Client spend towards your Social Media Accounts;

(g) will secure or procure all third-party permissions, consents, waivers, approvals and releases necessary to perform all your obligations under this Agreement and make, in a timely manner, all payments due to any such third parties necessary to enable us and the Client to exercise the rights granted to us or the Client under this Agreement;

(h) will immediately inform us in writing in the event you become aware of any third-party claim for infringement of any laws or rights of that third party or any other person in connection with, or caused by our use of or licence to use, any Content or Services; and

(i) will ensure the Content, and any post, story or other messaging on any of your Social Media Accounts or digital platforms relating in any way to the Content, in each case does not (i) include or contain any content other than that approved by us in writing, and (ii) contain and is not published in proximity to, any content or subject matter types as follows: information, images or logos relating in any way to Competing Brands.

4.2 You will not:

(a) do anything which, in our opinion, may or does (i) diminish or damage our or the Client’s reputation or brand or any of our respective goods or services or you (the “Relevant Persons/Parties”), (ii) bring any of the Relevant Persons/Parties into contempt or disrepute, (iii) cause public criticism of any Relevant Persons/Parties or (iv) cause a breach of any law, regulation, rules or industry code of practice by any Relevant Persons/Parties or result in any Relevant Persons/Parties being the subject of any Liability;

(b) do anything that creates or suggests an association or connection between the Client or us and any political issue, including by publishing any political content (for the avoidance of doubt, political content includes, without limitation, commentary on, or discussion of, domestic or international political figures, political parties or groups, policies, scandals, elections, wars or other conflicts, acts of terrorism, disagreements or controversial topics));

(c) publish or communicate to any person any disparaging remarks, comments or statements concerning us or the Client or our respective products, services or brands or any of our respective Personnel; or

(d) commit us or the Client to any third-party expenditure unless we have given our prior written approval for the expenditure.

Fees, Tax and Insurance

4.3 In consideration of you providing the Services in accordance with this Agreement, we (or, at our election, the Client or us on behalf of the Client) will pay to you the undisputed amount of Fees set out in Item 7 of the Schedule, on the dates set out in Item 7 of the Schedule, provided that you provide us with a valid tax invoice for such amount of Fees.

4.4 You agree that you are responsible for all taxes, superannuation, insurance (including any workers’ compensation insurance required by law, and public and professional indemnity insurance appropriate to cover your obligations under this Agreement) and all other benefits (statutory or otherwise) in respect of you, the Fees and your rights and obligations under this Agreement. For the avoidance of doubt, you agree that neither the Client nor we are responsible for any such contributions nor for any payments to you other than the Fees. If requested by us, you will promptly provide to us and the Client satisfactory evidence of all insurance policies described in this clause 3.2.

5. Intellectual Property

5.1 You agree that:

(a) any Content forming part of the Services may be posted, published and/or placed on our or the Client’s Social Media Accounts and other digital platforms both during the Term and for a period of 12 months after the initial placement, posting or publication by us or the Client; and

(b) the Content is permitted to remain on our and the Client’s Social Media Accounts and other digital platforms in perpetuity after the Term and will not be required to be deleted, provided the Content is not re-posted, re-produced or re-published again by us or the Client after the expiry of the aforementioned 12 month period.

5.2 As between the Parties, we (or our Client, as determined by us) own all Intellectual Property Rights in Our Materials, and you own all Intellectual Property Rights in Your Material, and nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

5.3 Ownership of all Content and all Intellectual Property Rights in the Content will at all times exclusively vest, or remain exclusively vested, in us and/or, at our direction, the Client (each, an “Owner”) upon creation. You agree that as an owner of the Content, subject to clause 4.1(b):

(a) each Owner has the exclusive right to use, perform, publicly display, reproduce, copy, translate, distribute, and authorise the use, performance, public display, translation, distribution and reproduction of, the Content, including for the purposes of displaying on its websites, its social media accounts, third party websites or social media accounts or for print or digital media and for marketing, without accounting, notice, compensation, credit or any other payment or other obligation to you or any third party;

(b) each Owner may edit, modify, delete from, add to or alter the Content, in whole or in part, or use the Content in conjunction with other images, graphics, text and sound in any way whatsoever without restrictions.

5.4 We grant you a non-exclusive, revocable, non-sublicensable and non-transferable right and licence:

(a) for the duration of the Term, to use Our Materials (including any Client logos and names) that we provide to you solely for the performance of the Services by you, as contemplated by this Agreement; and

(b) to use the Content solely in the manner approved by us in writing, provided that in any approved use of the Content, you attribute us or the Client as the owners of the Content as directed as us, we pre-approve (and you adhere to) the use of the Content (in writing) and you do not use the Content in any way that would benefit any third party or bring any Relevant Persons/Parties into contempt, disrepute or otherwise damage or diminish any of their reputations, names, brands, products or services.

5.5 You grant to us a non-exclusive, royalty-free, irrevocable, worldwide, transferable and sub-licensable right and licence to use Your Materials for the purposes reasonably contemplated by this Agreement and for us and the Client to derive the benefits from the Services, the Content and the Campaign.

5.6 If you or any Key Person have any Moral Rights in any material provided, used or prepared in connection with this Agreement or the performance of the Services (including any Content), you agree to consent, and to procure the consent of any Key Person (if applicable) to any Owner’s use or infringement of those Moral Rights.

6. Confidentiality and Privacy

6.1 Each party must keep confidential, and not use or permit any unauthorised use of, any and all confidential information (being the terms of this Agreement, information provided to you by us or the Client or information relating to us, the Client, the Campaign or the Services), except where the disclosure is required by us or the law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of this clause 5.

6.2 Each party must comply with all applicable privacy and data protection laws that apply to them them and their respective obligations under this Agreement.

7. Warranties, Indemnities and Liability

7.1 You represent, warrant and agree that:

(a) each part of the Services will be suitable and fit for purpose;

(b) you are our independent contractor, are not our employee and, accordingly, are not entitled to any Employee Benefits and, if applicable, you are registered for GST purposes;

(c) you have the right to provide the Services, and the legal right and authority to enter into and perform this Agreement and grant the rights granted by you in this Agreement;

(d) the provision of the Services and the Content (and use by us and the Client of the Services and Content in accordance with this Agreement) will not infringe the rights (including copyright, privacy rights, publicity rights or any contractual rights) of any third party or any terms and conditions imposed by the platform on which your Social Media Accounts are based.

7.2 You acknowledge and agree that we are not liable for, and release us from all claims arising out of or in connection with, our Client’s use of the Content or the Services.

7.3 To the maximum extent permitted by law, you are liable for, and agree to indemnify us, the Client and our / the Client’s respective Personnel (each of us, the Client and our / the Client’s respective Personnel being an “Indemnified Person”) and keep each Indemnified Person indemnified from and against, any Liability that any of them may suffer, incur or otherwise become liable for, arising from or in connection with (i) your performance of the Services; (ii) any breach by you of any provision of this Agreement; (iii) you infringing the rights of any third party (including Intellectual Property Rights); (iv) a claim that an Indemnified Person’s use or enjoyment of any part of the Services infringes the rights of any third party (including Intellectual Property Rights); (v) you or any third person (including any court, tribunal or government authority) claiming or determining that you are one of the Indemnified Person’s employees or are entitled to any Employee Benefits. We hold the benefit of this indemnity as principal and as trustee for each other Indemnified Person. Notwithstanding the foregoing, you will not be liable under this clause to the extent the Liability arises from our negligence or wilful default of the terms of this Agreement.

7.4 To the maximum extent permitted by law, we are liable for, and agree to indemnify you and your Personnel (each of you and your Personnel being an “Indemnified Talent Person”) and keep each Indemnified Talent Person indemnified from and against, any Liability that any of them may suffer, incur, or otherwise become liable for, arising from or in connection with (i) our breach of any provision of this Agreement; any (ii) claim that your proper use of Our Materials in accordance with this Agreement infringes the Intellectual Property Rights of any third party. You hold the benefit of this indemnity as principal and as trustee for each other Indemnified Talent Person. Notwithstanding the foregoing, we will not be liable to the extent the Liability arises from or is increased as a result of your negligence, wilful default, or breach of the terms of this Agreement.

7.5 To the maximum extent permitted by law, neither party will have any Liability under or in connection with this Agreement for any Consequential Loss.

8. Restrictions and Non-Compete

8.1 During the Term and for a period of 3 months after the Term (or such lesser period agreed between you and us in writing), you must not advertise, promote or be engaged as a Talent, whether directly or indirectly, for any other Competing Brand, and you must not, whether directly or indirectly, provide services that are the same or similar to, the Services, or otherwise endorse, advertise, promote, or be associated in any capacity with any Competing Brand. You agree that, in consideration of this Agreement, the terms of this clause are reasonable given the nature of our and the Client’s business, are necessary to protect our and our Client’s legitimate business interests and do not unreasonably restrict your right to carry on your profession or trade.

9. Term and Termination

9.1 This Agreement will apply from the Start Date and continue until the End Date, unless terminated earlier in accordance with this clause 8.

9.2 We may terminate this Agreement at any time within the first month from the Start Date, by providing you with written notification. For the avoidance of doubt, if we terminate this Agreement under this clause, you agree to stop providing the Services, and we will have no obligation to pay you any Fee for any Services performed after the date of our termination.

9.3 We may terminate this Agreement by providing you with written notification if:

(a) you breach any term of this Agreement and the breach is incapable of remedy;

(b) you breach any term of this Agreement and, where the breach is capable of remedy, you do not remedy the breach within 48 hours of being notified in writing of the breach by us;

(c) subject to applicable laws, you are or are likely to be declared bankrupt or insolvent (or suffer an analogous event);

(d) you infringe the rights of any third party (including Intellectual Property Rights) in connection with the provision of any Services;

(e) there is a claim that our or our Client’s use or enjoyment of any part of the Services infringes the rights of any third party (including Intellectual Property Rights);

(f) our engagement with the Client is terminated or otherwise brought to an end, for any reason;

(g) you claim that you are one of our (or the Client’s) employees or are entitled to any Employee Benefits from us or the Client; or

(h) you are accused, charged or convicted of any criminal offence or act of violence.

9.4 You may terminate this Agreement by way of written notice to us if: this Agreement by way of written notice to us if:

(a) we breach any term of this Agreement, and the breach is incapable of remedy;

(b) we breach any term of this Agreement, and where the breach is capable of remedy, we do not remedy the breach within 48 hours of us being notified in writing of the breach by you;

(c) our engagement with the Client is terminated or otherwise brought to an end, for any reason;

(d) subject to applicable laws, we or the Client are or are likely to become insolvent or suffer an analogous event.

9.5 Without limiting any of our or the Client’s other rights or remedies, if we terminate this Agreement in accordance with clause 8.3, prior to satisfactory completion of the Services in accordance with this Agreement, you must immediately repay to us any part of the Fees that you have already received.

9.6 Clauses 3.2, 4, 5, 6.2 – 6.4, 7, 8.5, 9 and 10 of these terms will survive the termination or expiry of this Agreement.

10. General

10.1 This Agreement is governed by and will be interpreted according to the laws of Victoria, Australia and the parties consent and submit to the non-exclusive jurisdiction of the Victorian courts and any courts which may hear appeals from those courts.

10.2 In this Agreement: a reference to a person includes a corporation, partnership, government body or any other legal entity; a reference to a party includes that party’s permitted assignees and successors, including executors and administrators and legal representatives; words and expressions not otherwise defined and which are defined in the Copyright Act 1968 (Cth) will have the same meaning given to them in that Act; and “including” and similar expressions are not words of limitation.

10.3 We and the Client are not obliged to require the provision, use or promotion of the Services or the Content and you acknowledge that any failure to use or exploit the Services or the Content will not entitle you to bring any claim or action against us or the Client or any other Indemnified Person for loss of publicity or on any other basis.

10.4 If any provision of this Agreement proves to be illegal or unenforceable for any reason, that provision is deemed omitted without affecting the remaining provisions and the remaining provisions of this Agreement shall continue in full force and effect.

10.5 All notices required under this Agreement will be by way of e-mail and forwarded to the email addresses of the parties set out in this Agreement, or such other email addresses notified to the other party in writing from time to time. Such notices will be deemed to have arrived at the time recorded by the sender’s server. Notwithstanding this, where any notice is delivered by email after 5pm on any day or emailed on a Saturday, Sunday, public holiday, the notice shall be deemed received on the next business day. Emails will be deemed served in accordance with this clause notwithstanding receipt by the sender from the recipient’s email address of an automated (or other) notification of the receiver’s absence. Delivery by email will not have been effected if the intended recipient promptly informs the sender that the email was received in an incomplete form, or the server report of the sender indicates a faulty or incomplete transmission of the email.

10.6 You may not assign or sub-contract any of your rights or obligations under this Agreement or any part of the Services without our prior written consent. We may assign or sub-license our rights under this Agreement to any person in our discretion, including the Client.

10.7 You acknowledge that you enter into this Agreement as an independent contractor and not as an employee or partner of us or the Client, or in any other capacity.

10.8 This Agreement may only be amended or varied by written agreement of the parties.

10.9 We enter into, and may enforce, this Agreement for the benefit of ourselves, all of its related and associated entities. Each party holds the benefit of each indemnity, promise and obligation expressed to be for the benefit of any of their personnel, related and associated entities, and in the case of the Agency, the Client, on trust for each of those person.

11. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meaning given to them in the Schedule and as follows:

Advertising Spend means the amount we or the Client spends to purchase advertising through your Social Media Accounts, as determined by us or the Client.

Agreement means the Talent Services Agreement between us and you which comprises the Schedule and these terms.

Consequential Loss includes any consequential, indirect or special loss, including any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Content means all visual, audio and audio-visual content, materials, information, videos, images, and posts (including Intellectual Property) developed, adapted, modified or created by you in connection with this Agreement or the provision of the Services, but excluding Our Materials and Your Materials.

Employee Benefits means all benefits owing to employees under the Employment Legislation including minimum wage, superannuation, workers compensation, leave entitlements or any other employee benefit.

Employment Legislation means the Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth), Superannuation Guarantee Charge Act 1992 (Cth) and Superannuation Guarantee (Administration) Act 1992 (Cth).

Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know- how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes (including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing).

Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Liability means any expense, cost, liability, loss, damage(s), claim, action, suit, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, specifications and services (including Intellectual Property), owned, licensed or developed by or on behalf of us or the Client or our respective Personnel.

Personnel means:

a. in relation to us, any of our or the Client’s respective directors, officers, employees, consultants, suppliers, subcontractors or agents; and

b. in relation to you, any of your directors, officers, employees, consultants, suppliers, subcontractors or agents

Schedule means the schedule between us and you to which these terms apply.

Script means the script for each piece of Content, provided by us to you, as amended by us from time to time.

Services means all activities, work or services to be performed by you under this Agreement, as further particularised in Item 6 of the Schedule.

Term means the term of this Agreement, commencing on the Start Date and ending on the earlier of the End Date or the date on which this Agreement is terminated in accordance with its terms.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you before the Start Date and/or developed by or on behalf of you independently of this Agreement. It includes your name, image, likeness, voice and biography.