DENTSU AU TERMS OF BUSINESS

These terms and conditions apply to the engagement of the applicable dentsu entity (Dentsu) by the applicable client entity (you, your) which:

a. When read in conjunction with the letter of engagement (if applicable) between the parties (LOE) will constitute an agreement between the parties and apply to any Services provided by Dentsu to you under any statement of works (SOW); or

b. In the absence of any LOE, will be read in conjunction with the applicable SOW only and constitute an agreement between the parties, (each, as applicable the Agreement).

In the event of conflict, the documents will prevail in the following order (i) any applicable SOW; (ii) these Terms; and where applicable (iii) the LOE.

The services to be provided

1. The services to be provided by Dentsu to you will be set out in the applicable SOW.  The SOW may include deliverables to be provided, scope of work, Dentsu’s approach, names of the personnel who will be assisting in the provision of the services, type of services (together known as the Services) and relevant fees or third party expenses incurred by us in accordance with this Agreement, Client Inputs (as defined below), and any responsibilities, assumptions and dependencies associated with Dentsu’s performance of its obligations.  Any out of scope services to be provided by Dentsu (including any specialist products) will be subject to a separate agreement to be negotiated in good faith.

2. Dentsu agrees to:

(a) perform the Services in accordance with professional care and skill as determined by industry best practice together with the agreed requirements of the applicable SOW;

(b) comply with all your lawful, reasonable directions in relation to the Services; and

(c) comply with all laws applicable to its provision of the Services.

3. You will provide or procure the provision of such materials, such as your Background Materials (as defined below), data, licences, inputs, requisite access to your accounts or approvals as may be reasonably required by Dentsu to perform the Services (Client Inputs). You will ensure that your Client Inputs are lawful, complete, timely, accurate and up to date.  We will not verify your Client Inputs unless expressly agreed otherwise in the applicable SOW.  You acknowledge that any delays or issues with Client Inputs or an inability by Dentsu to rely on any assumptions and dependencies may result in (i) delay to Dentsu’s ability to provide the Services in accordance with the applicable SOW; and/or (ii) reasonably incurred third party expenses.  Dentsu will notify you of any of the same and you agree to cover 3(ii).  The parties will mutually agree to any amendments necessary to the applicable SOW as a result.

4. Dentsu will request your prior approval of any draft deliverables and your approval is Dentsu’s authority to issue approved deliverables as final.   Dentsu will not be liable for delays or errors in any of our deliverables as published if the final deliverables have been approved by you.

5. Dentsu may engage third party vendors such as media owners or technology suppliers while providing Services.  These third party vendors are not Dentsu’s subcontractors.  Dentsu will seek your prior approval before engaging any third party vendors including any associated third party expenses and you will pay for the same in accordance with clause 9 below.  Dentsu will use reasonable endeavours to mitigate any loss you may suffer as a result of a failure by a third party vendor and will pass through any compensation as received from such third parties but Dentsu makes no warranties and does not bear any responsibility for any breach or failure by a third party vendor which did not arise from a breach by Dentsu of its rights or obligations. 

6. Where Services are provided by Dentsu using an account, platform, tool, or technology that is owned or licensed by you (as opposed to an account, platform, tool, or technology that is owned or licensed by Dentsu), you will procure all necessary access to Dentsu.  If Dentsu agrees to grant you any rights to access any Dentsu accounts, platforms, tools, or technology and/or use of Dentsu’s credit line, you agree to abide by any access controls and requirements as Dentsu may reasonably require, failure of which, will give Dentsu the right to immediately terminate your access rights.

7. You may request a cancellation or amendment to any plans, schedules or work in progress forming part of the Services. Dentsu will use reasonable efforts to comply with any such request provided it is contractually able to do so and provided further that you pay for: (i) all Services provided up to the agreed date of cancellation or amendment; and (ii) any additional third party expenses and mutually agreed fees for Services arising as a result of the cancellation or amendment.

Payment

8. Dentsu will be entitled to payment of fees for the Services.  The fee will be either as agreed in the applicable SOW (and any approved supporting documents), or where no fee is specified, calculated at the fee rates specified in the applicable SOW (and any approved supporting documents) and calculated on a time and materials basis.  Unless otherwise agreed, fee rates will be adjusted by CPI (averaged for the preceding 12 months) every year.

9. Unless otherwise agreed by the parties, Dentsu will invoice you monthly in arrears which will be payable within 30 days of receipt of invoice failing which, we may suspend our obligations under this Agreement until any outstanding amounts are settled.  All amounts are exclusive of GST.

Nature of the Agreement

10. Both parties agree that the Agreement does not create an employment, fiduciary, partnership, agency or joint venture relationship between the two parties.  Dentsu acts as principal unless otherwise agreed in writing by the parties. 

Confidentiality

11. Both parties agree to treat all information (including Dentsu’s fees and suppliers’ rates) received from each other or otherwise obtained in relation to the Agreement in strict confidence and to prevent any unauthorised use or disclosure of that information, except where such disclosure is required by law.  On expiry or termination, each party will delete and destroy any records it has of the other party’s confidential information on request (except for copies retained through ordinary backup measures and as required by law).  Both parties acknowledge that this obligation will continue to apply notwithstanding the expiry or termination of the Agreement.

Intellectual property

12. Any materials, including intellectual property and any know-how, data, databases, code, technology, tools, platforms, integrations, innovation or methodologies that is owned or licensed by a party prior to the commencement of the Agreement, or that is developed or acquired outside the scope of Services (Background Materials) will remain the property of its then current owner.  Any materials which are not final deliverables including intellectual property and any know-how, data, databases, code, technology, tools, platforms, integrations, innovation or methodologies that is developed, created, generated, obtained or derived by Dentsu as a by-product of the Services will be deemed to be Dentsu Background Materials.  Dentsu grants to Client a perpetual, non-transferable, non-exclusive licence to use such Background Materials within final deliverables.  Any intellectual property and materials owned by a third party but which is licensed to Dentsu for inclusion in the final deliverables Dentsu produces for you as part of the Services (Third Party Materials) will remain the property of the applicable third party licensor. 

13. Ownership of any final deliverables, including intellectual property rights therein, Dentsu produces for you as part of the Services (excluding any Dentsu Background Materials and Third Party Materials) will vest in you upon payment for the fee for the Services.  Any development or improvements to Dentsu Background Materials created during the Services vests in Dentsu.

14. Dentsu may only use your Client Inputs for the purpose of providing the Services.  You warrant that any Client Inputs that you provide to Dentsu do not and will not infringe or violate in any way the rights, including intellectual property rights, of any third party or any applicable laws.

15. Where we incorporate any Third Party Materials into the final deliverables, you will adhere to any licence conditions or usage restrictions associated with such Third Party Materials and will compensate us for any additional costs which we incur in the event you use any Third Party Materials outside of such conditions or restrictions.

16. Subject to clauses 14 and 15, Dentsu warrants that the Services do not and will not infringe or violate in any way the rights, including intellectual property rights, of any third party or any applicable laws.

Insurance

17. Dentsu shall always have in place insurance cover (including professional indemnity insurance) adequate to cover its potential liabilities to you arising from its performance of the Services and upon a request from you, shall provide copies of summary policy certificates for that insurance.

Liability

18. To the maximum extent permitted by law, Dentsu’s maximum aggregate liability under or in connection with the Agreement (howsoever arising, including negligence) is limited to an amount equal to 100% of the amount of fees (excluding any third party expenses) paid in the preceding 12 months under the Agreement.  To the maximum extent permitted by law, the liability of either party under or in connection with this Agreement will exclude any indirect, consequential, special or incidental loss or damages.

Termination

19. Subject to clause 21 below, unless otherwise agreed by the parties in a SOW, either party can terminate the Agreement for convenience by giving 90 days written notice to the other. 

20. Subject to clause 21 below, either party may terminate the Agreement immediately for (i) a material breach which is incapable of remedy (or within 14 days if the breach is capable of remedy but has not been remedied in this timeframe); or (ii) if a party is placed into liquidation, receivership or otherwise enters into a compromise with its creditors.

21. Where the parties have signed an LOE, then unless otherwise agreed by the parties, termination of the Agreement by a party under:

(a) clause 19 will apply to such SOWs (whether some or all) as specified under the notice of termination and all other unaffected SOWs (if any) will continue in effect for its full duration; 

(b) clause 20(i) will result in the termination of the applicable SOW for which the material breach occurred and all other unaffected SOWs will continue in effect for its full duration; and

(c) clause 20(ii) will result in the termination of all SOWs.

22. On the termination of the Agreement and any SOW, Dentsu will be entitled to receive all fees payable up to the date of such termination in addition to any third party expenses committed by Dentsu prior to the date of termination.

Disputes

23. If any valid dispute arises concerning the Agreement, both parties will discuss in good faith that dispute with a view to resolving it by mutual agreement.  If the dispute is not resolved within 10 business days of written notice by one party to another, either party may refer it to the CEOs (or equivalent) of each party. If either of us considers the dispute has not been resolved within 10 business days of written referral to the CEOs, then either of us may refer the matter to binding arbitration under the rules recommended by the Law Institute of Victoria.  This clause does not prevent a party from taking action in relation to payment issues with amounts due or interim or injunctive relief.

Notices

24. Any notice or invoice under this Agreement is to be in writing and addressed to the other party at the address set out in the Agreement (or as otherwise updated and agreed).

Miscellaneous provisions

25. The Agreement constitutes the complete agreement between Dentsu and you and supersedes all previous agreements, arrangements or understandings, whether oral or written, in relation to the Services.  No amendment to the terms of the Agreement will be binding on either party unless we both agree in writing.  The Agreement may be signed in counterparts and the parties agree that the Agreement may be signed electronically.

26. Both parties will comply with all laws applicable to them in the performance of the Agreement including without limitation and where applicable to a party, any obligations pertaining to privacy, modern slavery and/or anti-bribery laws.

27. The liability of a party in connection with the Agreement will be reduced to the extent that it is caused by any act, omission, breach or default under the Agreement by the other party.  Both parties shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.

28. Neither party may assign or transfer any rights or obligations under the Agreement to any other party without the prior written consent of the other party.  Dentsu may engage its related bodies corporate in its performance of Services.  A person who is not a party to the Agreement has no right to rely upon or enforce any term of the Agreement.

29. Neither party shall solicit any staff member from the other organisation that was involved with the Services, either during the Agreement or for a period of three months from the end of the Agreement.

30. No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under the Agreement will be construed as a waiver of that right or remedy.

31. Each term of the Agreement is separately valid and binding.  If for any reason either party cannot rely on any term, all other terms will remain valid and binding.  Termination of the Agreement for any reason will not affect those provisions which are stated to, or by their nature, survive such termination.

32. Except as expressly set out in the Agreement, all representations, conditions and warranties (whether express or implied, statutory or otherwise, and including warranties as to the merchantable quality or fitness for a particular purpose of the Services) are expressly excluded to the fullest extent permitted by law.

33. Dentsu shall be entitled, at its own cost, to obtain insurance against your delay or default in paying the expenditure and fees incurred under the Agreement. If such insurance cannot be obtained or maintained during the Agreement and the parties are unable to reach agreement with respect to alternate payment forms, then Dentsu will be entitled to suspend its performance obligations under this Agreement until such time that the parties reach agreement.

34. Neither party will be liable to the other for delay or failure to fulfil obligations (other than an obligation to pay) to the extent that the delay or failure arises due to an unforeseen event beyond their reasonable control which is not otherwise dealt with in the Agreement. Each party will use reasonable endeavours to remove or overcome the effects of the relevant event without delay.

35. The Agreement will be governed by and interpreted in accordance with the laws of Victoria, Australia.

36. Where you and Dentsu have signed a LOE, the Agreement may also be used where you or a related body corporate (as defined in the Corporations Act 2001 (Cth)) of yours wish to engage Dentsu or any of Dentsu’s related body corporates to supply services.  Where agreed, you (or your related body corporate, as applicable) will sign a separate SOW with Dentsu (or Dentsu’s related body corporate, as applicable) which will constitute a separate legal agreement between the applicable parties to that SOW which shall incorporate these Terms.

Last updated 14 June 2024 (V4).

A downloadable PDF version of the Dentsu AU Terms of Business can be found here (together with previous versions).