Terms and Conditions

Terms & Conditions

This sales agency agreement is entered into and deemed effective as of   between the following entities, collectively known as the “Parties”:

Better Results Now [BRN] Agency (Agency) and (Client).

In consideration of the mutual covenants set forth herein, and intending to be legally bound thereby, the parties agree as follows:

1. Definitions

The following definitions govern the meanings of the capitalised terms used in this agency Agreement:

"Agency" shall mean 'BRN Agency' as a service providing entity.

“Certificate” shall mean a document created by BRN Agency and issued to the client that indicates that BRN Agency is a growth specialist for client services.

"Client" shall mean an entity, or persons, taking on and paying for services provided by BRN Agency.

“Customer” shall mean (i) an entity, or persons (ii) providing prior written permission to purchase the client's products or services.

“Documentation” shall mean the user manual, if any, and specifications, if any, for the product or service.

“Order” or “Orders” shall mean a Company-created contract for the purchase of Product/ Services(s) by customer(s).

“Personal Data” shall mean information relating to persons.

“Products” are those listed by the client.

“Purchase” shall mean the purchase/ sign-up of a Product/ Service.

“Quarter” shall mean each three-month calendar period commencing with the Effective Date of this Agreement except the first Quarter will be from the Effective Date to the date that is the last day of the first two calendar months after the Effective Date.

“Quarterly” shall refer to a “Quarter”.

“Sale” shall mean when each of these occurs:  Customer executes an Order, Company receives the Order from BRN Agency and Company accepts the Order.

“Service” shall be the performance of a task, provision of advice and counsel, assistance, support, or access to a resource (such as an information database) that Company may approve you to market.

“Term” shall mean the term of this Agreement.

“Territory” shall mean the Territory in Exhibit 1.

2. Restrictions

Notwithstanding anything to the contrary in this Agreement, the License is subject to the following conditions:

Client shall not reproduce, modify or reverse engineer the Products/ Services, Documentation or any portion thereof without BRN Agency's prior written consent, and Client shall not resell, re-use or re-purpose the IP generated by BRN Agency.

3. Appointment and Authority

The Company agrees to appoint the BRN Agency as a representative for the products/ services listed below. Furthermore, the BRN Agency is in acceptance of such appointments.

4. AGENCY Duties

At its cost, unless otherwise expressly stated, BRN Agency shall, as follows:

invest the necessary resources and engage its best efforts to advertise, market, promote, demonstrate, offer to sell and sell the Products/ Services to Client's Customers, via BRN Agency's personal business contacts, pursuant to Product/ Service marketing plans, developed by BRN Agency, using only sales, marketing, advertising and promotional material provided by or previously approved in writing by Client and contracts, including Orders, and documents, provided by or previously approved in writing by Client.

protect Company’s confidential and proprietary information and intellectual property (including, but not limited to, its trade secrets, copyrights, trade names, service marks and trademarks) with the same level of protection it employs for its own confidential and proprietary information and intellectual property, and notify Client if it becomes aware of any unauthorised use of any of the foregoing.

efficiently, promptly and courteously, with the highest standards of professionalism advertise, promote, demonstrate, market, offer to sell and sell the Client's Products/ Services.

if it receives Orders from Client, promptly transmit all Orders executed by Customer to Client as client directs.

communicate to and receive communications from, and send material to and receive material from Client to perform this Agreement.

comply with all laws, rules, regulations, and executive directives in the performance of this Agreement and in accordance with all Agency policies and procedures.

do whatever else is reasonably expected in order to perform Agency obligations under this Agreement.

5. Agency Responsibilities

The Agency may, at its own expense, attend any industry trade shows as a representative of the Client.

Any product/ service complaints shall be investigated by the Agency and will be submitted to the Client immediately for their consideration.

The Agency shall not under any circumstances make any misleading or false representations regarding the products or Client in this agency agreement.

6. SCOPE OF WORK

This Proposal is for the provision of services. It is not a promise of future outcomes. Results may vary from business  to business in calculating profits, and depend on the industry, capacity, advertising budget and other factors.

BRN Agency will provide initial timelines for project delivery including dates for feedback & review.  BRN Agency is not responsible to maintain delivery milestone dates that have slipped due to delay in receiving scheduled feedback, approvals and or cancellations of agreed review meetings. Revised delivery dates will be provided with delayed completion dates. Additional fees will incur to prioritise your delivery to original delivery dates.

7. client Duties

At its cost, unless otherwise expressly stated, Client shall, as follows:

protect BRN Agency's confidential and proprietary information and intellectual property (including, but not limited to, its trade secrets, copyrights, trade names, service marks and trademarks) with the same level of protection it employs for its own confidential and proprietary information and intellectual property, and notify Remarketer if it becomes aware of any unauthorised use of any of the foregoing;

make future enhancements, if any, or upgrades, if any, of the Products that Client solely sees fit. Any such enhancements and upgrades shall at all times be considered the “Products.”

prepare and distribute to the Agency any branding, marketing, advertising and/or promotional material, contracts and other documents in PDF format; and at its discretion, additional of such material in a tangible medium.

provide Agency initial training regarding all Client's company procedures, prices, fees, policies and contracts.

inform the Agency of updates or changes in current programs, prices, policies, and contracts.

have sole discretion to issue a refund to any Customer and credit any Customer account.

comply with all laws, rules, regulations and executive directives in the performance of this Agreement.

8. CLIENT Products/ SERVICES

The Client shall provide an updated copy of all price lists, delivery schedules, as well as any terms and conditions related to the products or services being sold..

All quotes given by the Agency shall reflect the above documents.

The Agency will have no authority to offer discounts or any other pricing unless prior written consent has been obtained from the Client.

Additionally, the Client may change pricing, delivery costs, terms and conditions, or delivery schedules with 30 days prior notice to the Agency. These changes will not affect any sales accepted prior to the notification date.

All quotes provided to customers must be submitted with invoicing and sales documentation for every order.

All orders shall be conducted in writing and submitted no later than 5 days from the customer’s order date.

All orders are subject to acceptance by the Company. The Agency will have no authority to make acceptance or delivery promises to customers.

The Client will be responsible for any and all collection attempts but may request the assistance of the Agency to cure such debts, with the agency holding the right to refuse.

Any and all inquiries that occur outside of the Agency’s assigned responsibilities shall be submitted to the Client in writing along with all original documents.

9. Status Change

You agree to give Agency prompt written notice (unless precluded by law or regulation) of any change or anticipated change in your financial condition, business structure, or operating environment (for example, a material change in equity ownership or management or any substantive change to information you provided to Agency when you applied to enter into the relationship. Upon notification of such change, (or if you fail to give notice of such change) Agency may, at its sole discretion, immediately terminate this Agreement on written notice to you.

10. Payments & Invoicing

Work will not commence until the first payment is made. Payment is monthly in advance. Thereafter BRN Agency maintains a 30 day billing cycle. Direct Debit/ Invoicing recurs every 30 days, from the first invoice date. The Client's liability for payment(s) is for the provision of services and not contingent upon future marketing outcomes

Agency invoices Client and Client is financially responsible for Orders. Client is responsible for invoicing and collecting from Client's Customers.

11. Commission

Commissions due to the Agency shall include all orders regardless if the orders were solicited by the Agency.

All commissions shall be computed based on the gross sale total invoiced by the Client to the Customer. The rate is set at 30% of the total value of sale, to be paid by the Client to the Agency.

All commission payments shall be made in AUD currency and will be subject to all government laws including taxes and withholdings.

The commission shall be earned upon the customer order date and will be due within 30 days of the invoices' creation.

A monthly earnings statement will be made available to the Agency from the Client on the 15th of each month, which will be inclusive of any and all earnings, withholdings, and chargebacks.

The Agency will be allowed to audit and inspect the Client's relevant accounts so as to verify all earnings.

This audit will be at the expense of the Agency and shall not occur more than twice in any given twelve month period.

12. Tax

Pricing is quoted excluding GST, Unless specified Inc GST.

Each party shall report, pay and be liable for all of its own respective taxes.

13. Warranties

Each party warrants that it has all the rights necessary to enter into this Agreement, and that all duties to be performed hereunder shall be performed in a competent, timely and workmanlike manner.

THE WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

14. Ownership of Property

All rights, title and interest, including but not limited to possession and intellectual property rights, in and to Products, Services, Documentation, customizations, software, programs, content materials, and all other property, including but not limited to intellectual property, that BRN Agency owned prior to the Effective Date, that it created, developed or used in the performance of this Agreement, shall at all times remain exclusively owned by BRN Agency.

All rights, title and interest, including but not limited to possession and intellectual property rights, in and to products, documents, software, programs, content materials, and all other property, including but not limited to intellectual property, that Client owned prior to the Effective Date shall at all times remain exclusively owned by Client.

Client hereby grants Agency a non-exclusive, non-transferable, royalty-free licence to use and display Client ’s trademarks, service marks, trade names, logos and other commercial designations, (collectively “Client Marks”), solely for the purpose of Agency's performance under this Agreement. Agency will not take any action inconsistent with Client's ownership of Client Marks.

The Client grants Agency freedom and rights to promote their business as a Client case study and use all information required to achieve the outcome.

All Products, Services, Documentation, Agency Marks, Agency confidential information, proprietary information and intellectual property and all copies thereof must be returned to Agency upon request by Agency and may not be used by Client during the term of this Agreement except in accordance with the terms hereof.

15. Confidentiality

If either party desires to exchange confidential information, such exchange will be governed by the Non-Disclosure Agreement entered into between the parties (“NDA”).

The Client understands they may gain knowledge of certain information or materials that are of high value to the Agency.

Information of high value may not be disclosed to third parties under any circumstances during the term of this agency agreement.

All information marked confidential by the Agency will remain as so unless prior written consent from the Agency has been obtained.

16. No Adverse Action

Client shall not engage in any action that adversely affects any Agency Marks. Agency shall not engage in any action that adversely affects any of the Client Marks. During the term of this Agreement and at all times thereafter, neither party will disparage, including but not limited to slander, libel, misrepresent, injure the reputation of the other, directly or indirectly. Furthermore, the Client will not make claims against BRN Agency for losses incurred as a result of industry downturns, falling sales, trend reversals, lower consumer confidence and financial crises.

17. Code of Conduct

You agree to comply with BRN Agency's Code of Conduct. BRN Agency may change the Code of Conduct at any time by posting a revised Code of Conduct on the Agency website or by providing you with notice as otherwise provided in this Agreement. You represent that you have read the Code of Conduct and agree to monitor the website regularly for changes to the Code of Conduct. Such changes are effective immediately when they are posted to the website.

18. Indemnification

It is and will remain the Client's sole responsibility to develop, design, and produce all of its products as well as all patents and trade names owned by the Client.

The Client agrees to hold the Agency harmless against as well as pay any and all claims, losses, fees or damages that may result from the infringement of the Client's patents, trade names, or products.

Furthermore, the Client will indemnify the Agency with regard to any and all costs arising from warranty claims, product liability claims, or negligence claims.

If the Agency shall receive any notices with regard to any proceedings occurring from the above instances such notices shall be delivered to the Client and the Client shall defend any such litigation.

19. Liability

Circumstances may arise where, because of a default or other liability, one of the parties is entitled to recover damages from the other. The following terms apply as the Client's exclusive remedy and the Agency's exclusive liability.

a. Agency's Liability.

Regardless of the basis on which you are entitled to claim damages from Agency (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Agency's entire liability for all claims in the aggregate arising from or related to each Product or Service or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the total value of 1 month of Agency service provision that is the subject of the claim. This limit also applies to any of the Agency's subcontractors, partners and employees.  It is the maximum for which the Agency and its subcontractors, partners and employees are collectively responsible.

b. Items for Which Agency Is Not Liable

Except as expressly required by law without the possibility of contractual waiver, under no circumstances is Company, its subcontractors, partners or employees liable for any of the following even if informed of their possibility:

loss of, or damage to, data;

special, incidental, exemplary, or indirect damages, or for any economic consequential damages; or

lost profits, business, revenue, goodwill, reputation or anticipated savings.

No right or cause of action for any third party is created by this Agreement, or any transaction under it, nor is Company responsible for any third party claims against you except as described elsewhere in this Agreement or as permitted by this Liability section for bodily injury (including death) or damage to real or tangible personal property for which Client is legally liable to that third party.

c. Your Liability

In addition to damages for which you are liable under applicable law or the terms of this Agreement, you will indemnify Agency for claims made against Agency parties by others arising out of your conduct under this Agreement or as a result of your relationship with any third party, including without limitation, any claim based on representations, statements, claims or warranties not authorised by Agency.

20. Dispute Resolution

In the event that a dispute hereunder arises which cannot be resolved in the normal course, the following dispute resolution procedures shall be followed:

If a dispute arises, then within ten (10) business days of a written request by either party, Client's authorised representative and Agency's authorised representative shall meet in person or on the telephone and resolve the issue; if these parties cannot resolve the issue within ten (10) business days of the meeting, then (ii) the issue shall be submitted to persons in the position of CEO/ Founder/ Owner for Client and in the position of CEO/ Founder/ Owner for Agency.

This provision shall not apply to the exclusion of claims for equitable relief (for example, injunction to prevent disclosure of confidential information).

21. Exclusivity

Company is free to advertise, promote, market, demonstrate, offer to sell, sell and licence Products/ Services to any third party, including Clients of Client Customers and Clients of Agency, through itself or with the assistance of any third party. Company is free to enter into the same terms and conditions or similar terms and conditions as this Agreement with any person or entity for any customers, including but not limited to Customer(s) in or outside the Territory.

Agency has the right to work with Client's direct competition, unless otherwise documented in this agreement.

22. Termination

This agency agreement shall remain in full force for a period of 12 months from the agreement date.

This Agreement shall automatically renew for a subsequent 12 month term, unless earlier terminated by a party providing thirty (30) days written notice to the other party.

This agreement may be terminated under any of the following conditions:

Failure to meet quota requirements

Either parties filing for bankruptcy

Any breach of the conditions listed that is not cured within 30 days of notice

Upon either party's conviction of a crime or action that impacts the performance and ability to abide by the agreement terms

If the contract remaining period is longer than thirty (30 days) the client agrees to pay the remaining amount due on the contract.

If the contract's remaining period is less than thirty (30 days) the client agrees to pay a cancellation fee equivalent to thirty (30) days service.
The Client may cancel this Agreement by providing notice in writing, emailed to hello@brn.agency. This notice must be given prior to 5:00pm Monday - Friday, Sydney time, on a business day.  

The Client agrees to payment of a “After Hours Escalation Fee” of $150 + GST in the event that cancellation notifications are submitted on weekends/ public holidays in order to immediately remove your project from delivery and re-prioritise our delivery plans.

BRN Agency can terminate the contract at any time and not continue delivery for future months in accordance with the below conditions:

Complete the current months delivery

Providing a refund for current month of delivery

* Any month's delivery that has been paid and not completed due to no information provided by the client will not be refunded.

If either party fails to comply with a material term of this Agreement, the other party may terminate this Agreement on written notice to the non-compliant party. Examples of a “material breach” by Client are if you (i) fail to maintain customer satisfaction, or to comply with the terms of a Transaction Document (for example, if you fail to pay an invoice or to meet your obligations under a statement of work), (ii) repudiate this Agreement, or (iii) make any material misrepresentations to Agency.

You agree that Agency's only obligation to you regarding notice of termination is to provide the notice called for (Agreement Termination) and Agency is not liable for any claims against you or losses you may incur if Client terminates this Agreement with no additional notice.

23. Notices‍

Any and all notifications with regard to this agency agreement shall be delivered in person, via email to hello@brn.agency.

24. Miscellaneous Provisions‍

Company reserves the right to assign this Agreement, in whole or in part, on written notice. Company is also permitted to assign its rights to payments without obtaining your consent. It is not considered an assignment for an Agency to divest a portion of its business in a manner that similarly affects all of its Companies. Your rights under this Agreement are not property rights and, therefore, you can not transfer them to another party or encumber them in any way. For example, you can not sell your approval to market Client's Products or Services or your rights to use Client Trademarks. You agree not to assign or otherwise transfer this Agreement, your rights under this Agreement, or any of its approvals, or delegate any duties, unless expressly permitted to do so in this Agreement. Otherwise, any attempt to do so is void.

Both parties agree to the application of the laws of the ACCC & Fair Trading to govern, interpret, and enforce all of Client and Agency's respective rights, duties and obligations arising from, or relating, in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement remain in full force and effect. The "United Nations Convention on Contracts for the International Sale of Goods" does not apply.

This Agreement sets forth the entire understanding of the parties and supersedes any and all written or verbal agreements between the parties related to the subject matter hereof. Any amendment to this Agreement must be in writing signed by a duly authorised officer or representative of the parties.

Any notice required or permitted by this Agreement shall be in writing and shall be delivered in person, or sent by overnight globally recognized courier addressed to the designated representative of any party as set forth below (or such other representatives as may be designated).

The terms and conditions of Orders and any other commercial transactions, if any, between Company and Customer are separate and independent of any agreements between Agency and Client. Agency has no authority that is expressly granted by this Agreement. Without limiting the foregoing, the Agency has no authority to make any warranties or refunds.

All communications, written (including but not limited to email), and oral, will be in Australian English.  If any party desires to translate, the cost of such will be on the party which desires the translation.