Greenfish Marketing (trading as Greenfish Marketing)
ABN/Company No:12622134025
Registered address: West 9, 3 Mackey St, North Geelong VIC 3215
Email: accounts@greenfish.com.au | Website: https://greenfish.com.au/
In these Terms:
2.1 These Terms apply to all Services we provide to you, unless we agree otherwise in writing.
2.2 If there is any inconsistency, the following order of precedence applies:
a) the Order;
b) any special conditions agreed in writing;
c) these Terms.
2.3 You acknowledge you are entering into this agreement for business purposes.
2.4 Nothing in these Terms excludes or limits any rights you may have under the Australian Consumer Law (ACL) that cannot be excluded.
3.1 A binding contract is formed when:
a) you sign or otherwise accept an Order in writing (including email); or
b) we commence performing the Services following your written or verbal instruction,
whichever occurs first.
4.1 We will provide the Services described in the applicable Order.
4.2 Anything not expressly listed in the Order is out of scope and may require a separate quote or Change Request (see clause 9).
4.3 We do not provide legal, financial or tax advice. You are responsible for obtaining your own professional advice, including in relation to advertising standards, competition and consumer law, privacy and spam laws.
You agree to:
We are not responsible for delays, additional costs or performance issues arising from your failure to comply with this clause.
6.1 Fees for the Services are as set out in the Order. Unless stated otherwise, all fees are exclusive of GST.
6.2 We may invoice:
a) upfront before commencement;
b) in instalments based on milestones;
c) monthly in advance for retainer Services; or
d) as otherwise stated in the Order.
6.3 Payment terms are strictly 14 days from the date of invoice, unless otherwise specified in the Order.
6.4 If you fail to pay any amount by the due date, we may (without limiting our other rights):
a) charge interest on overdue amounts at 10% per annum, calculated daily and compounding monthly after 28 days of the invoice date;
b) recover from you all reasonable costs incurred in attempting to recover payment (including legal and debt collection costs);
c) suspend or withhold delivery of Services and Deliverables until payment is received in full.
6.5 If you dispute an invoice, you must notify us in writing within 7 days of the invoice date, setting out full details of the dispute. You must pay all undisputed amounts by the due date.
7.1 Our fees do not include third-party costs such as Platform subscription fees, sending costs (email/SMS), apps, plugins, stock images, fonts or advertising spend, unless expressly stated in the Order.
7.2 Where we incur third-party expenses on your behalf with your approval, you must reimburse us. We may invoice these in advance or in arrears as set out in the Order.
(This clause applies where the Order specifies a retainer.)
8.1 A Retainer is an arrangement where you pay a recurring fee (usually monthly) for ongoing access to a defined set of Services.
8.2 The Order will specify:
a) the retainer amount;
b) the retainer period (for example, 1-month minimum term);
c) inclusions (for example, approximate hours, number of campaigns, number of flows or strategic sessions).
8.3 Unless the Order states otherwise:
a) retainer fees are invoiced monthly in advance;
b) unused inclusions in any month do not roll over;
c) any work requested beyond the retainer inclusions may be billed at our then-current hourly rate between AUD $130 – $250 + GST (depending on the work), or as separately quoted.
8.4 We may adjust the scope, cadence or method of delivery of the retainer Services (within the agreed value) to best achieve your objectives, but will not materially reduce the value of the Services without your agreement.
(You can customise the minimum term and hourly rate in this clause to match your actual offer.)
9.1 If you request work outside the agreed scope, we may treat this as a Change Request. We will provide an estimate of additional fees and any impact on timelines.
9.2 We are not obliged to commence any out-of-scope work until you accept the Change Request in writing (including email).
10.1 We will use reasonable efforts to meet any timeframes specified in the Order, but unless expressly stated as a guarantee, all dates are estimates only.
10.2 Unless the Order states otherwise, you have 5 business days from delivery of any Deliverable to notify us in writing of any material issues or required amendments within scope.
10.3 If you do not provide feedback within that period, the Deliverable will be deemed accepted.
11.1 Standard turnaroundSubject to this clause, the Agency’s standard timeframe to produce an EDM “ready to send” is 5 business days from the date the Agency confirms in writing that it has:(a) received and reviewed a complete campaign brief; and(b) received all required assets (including copy, product information, images, links, discount codes and any necessary approvals on offers).
11.2 Internal workflow (for clarity only)The standard 5 business day turnaround reflects the Agency’s typical internal workflow, which is generally:(a) 2 business days for design and layout;(b) 2 business days for build, implementation and testing in the ESP and, where applicable, on the website or landing page; and(c) 1 business day for final checks, scheduling and send-time configuration in the ESP.
11.3 Scope of the turnaround commitment11.3.1 The standard turnaround time applies to a single EDM of standard complexity, using agreed templates and existing integrations.11.3.2 The turnaround commitment is to have the EDM built, tested and ready for scheduling within the ESP; the actual send date may be later, as agreed with the Client.
11.4 Dependencies and exclusionsThe Client acknowledges that the turnaround time is dependent on:(a) timely provision of a clear and complete brief and all required assets;(b) timely responses to queries raised by the Agency; and(c) timely approval of proofs at each stage.
11.4.2 The standard turnaround time does not apply where:(a) the campaign is unusually complex (for example, multiple variants, heavy personalisation, complex segmentation or custom development);(b) the Client changes the brief or assets after work has commenced;(c) there are delays, outages or issues with third-party platforms (including ESPs, ecommerce platforms or hosting providers) outside the Agency’s reasonable control; or(d) the requested send date falls within, or immediately following, a peak trading period where different lead times have been notified to the Client (for example, Black Friday/Cyber Monday or major seasonal campaigns).
11.5 No guarantee of specific send dateWhile the Agency will use reasonable efforts to meet the standard turnaround timeframe, all dates are estimates only and are subject to clause [Delivery, Reviews and Acceptance] and clause [Limitation of Liability]. The Agency is not liable for any loss arising from a campaign not being sent on a particular date where the Client has not complied with the dependencies in clause 4.1 or where any of the exclusions in clause 4.2 apply.
11.6 Rush workIf the Client requests a campaign to be produced in a shorter timeframe than the standard 5 business days, the Agency may, at its discretion, agree to treat the work as rush work. Where the Agency accepts a rush request, an additional rush fee of AUD $195 + GST per campaign will apply and will be added to the Client’s next invoice, unless otherwise agreed in writing.
11.7 RevisionsUnless otherwise set out in the Order, each Deliverable includes up to 3 rounds of reasonable revisions limited to the original scope and brief.11.7.1 Additional revisions or changes in direction (for example, new brand guidelines, new product positioning, or major copy changes after approval) may be charged as out-of-scope work in accordance with clause 9.
12.1 Email and SMS deliverability and performance depend on a wide range of factors outside our control, including past sending practices, domain/IP reputation, list quality, engagement history, recipient behaviour, mailbox provider algorithms and Platform changes.
12.2 While we will exercise reasonable care and follow good industry practice, we do not guarantee:
a) specific financial outcomes (for example, revenue, ROAS, ROI);
b) particular open, click, conversion or unsubscribe rates;
c) inbox placement or deliverability to particular providers or segments.
12.3 Any performance forecasts, benchmarks or projections provided are indicative only and not a promise of results.
13.1 Pre-existing IP
Each party retains ownership of any intellectual property it owned or created before the commencement of the contract, or which it develops independently of the Services.
13.2 Agency Materials
We retain all rights in our methodologies, frameworks, templates, tools, documentation, code snippets and know-how used or developed while providing the Services, whether or not they are incorporated into Deliverables.
13.3 Deliverables
Subject to full payment of all fees due under the contract, we grant you a non-exclusive, perpetual licence to use the Deliverables for your own business marketing purposes. This licence does not allow you to resell our work as an agency or consultant to third parties unless we agree in writing.
13.4 Third-Party Assets
Any third-party materials (for example, stock images, fonts, plugins, external code libraries) remain subject to the licences of those third parties. Ongoing licence fees or usage restrictions are your responsibility unless the Order states otherwise.
13.5 Portfolio Use
Unless you notify us in writing prior to commencement, you grant us permission to refer to you as a client and to display your name, logo and non-confidential results or case studies in our marketing and portfolio. We will not disclose confidential or commercially sensitive information.
14.1 Confidential Information means information of a confidential nature belonging to a party, including business plans, strategies, pricing, financial information, marketing data, client lists, login credentials and non-public performance data, but excludes information that:
a) is or becomes public other than through a breach of this agreement;
b) was already known to the receiving party on a non-confidential basis;
c) is independently developed without reference to the disclosing party’s information; or
d) must be disclosed by law or court order.
14.2 Each party agrees to use the other party’s Confidential Information solely for the purposes of this contract and not to disclose it to any third party, except to its personnel and subcontractors who need to know it and are bound by similar confidentiality obligations.
15.1 Each party must comply with applicable privacy laws, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles, as well as any applicable data breach notification requirements.
15.2 You are responsible for:
a) ensuring you have a lawful basis to collect and use personal information for marketing and analytics;
b) providing accurate and up-to-date privacy notices and consent language on your websites and forms;
c) honouring any unsubscribe or opt-out requests.
15.3 To the extent we handle personal information on your behalf, we will do so only to provide the Services and in accordance with your reasonable written instructions and applicable law.
15.4 You must not share login credentials by insecure means. You are responsible for access controls within your own organisation.
16.1 You are responsible for ensuring your marketing lists and activities comply with the Spam Act 2003 (Cth), the Privacy Act 1988 (Cth), the Competition and Consumer Act 2010 (Cth) (including the ACL) and any industry codes or platform policies that apply.
16.2 You warrant that:
a) all email and SMS recipients have provided valid consent or another lawful basis for receiving marketing communications from you;
b) you will not provide purchased or rented email/SMS lists to us;
c) all product claims, offers, pricing and representations in your content are accurate, substantiated and lawful.
16.3 If we reasonably believe that any requested activity may breach applicable law, platform terms or accepted industry practice, we may refuse to implement it and request you to modify the instructions.
17.1 Platforms are operated by third parties and are outside our control. We are not responsible for:
a) outages, interruptions, bugs or security incidents on Platforms;
b) changes to Platform features, pricing, rules or algorithms;
c) account restrictions, suspensions or terminations imposed by Platforms.
17.2 If your Platform account is restricted or suspended, we are not liable for resulting loss or damage. Any assistance we provide in addressing such issues may be treated as additional Services and charged accordingly, unless included under an existing Order.
We may suspend or withhold Services (including disabling access to Deliverables) if:
We will, where reasonably practicable, notify you before suspension.
19.1 The contract commences on the date specified in the Order (or the date clause 3.1 is triggered) and continues for the duration set out in the Order.
19.2 Either party may terminate the contract or any Order immediately by written notice if the other party:
a) commits a material breach and fails to remedy it within 14 days after receiving written notice; or
b) becomes insolvent, enters administration or liquidation or is otherwise unable to pay its debts as they fall due.
19.3 For ongoing retainers with no fixed end date, either party may terminate for convenience on 28 days’ written notice, after any minimum term specified in the Order has expired.
19.4 On termination:
a) all fees and expenses incurred up to the date of termination become immediately due and payable;
b) for fixed-fee projects, we may invoice you for work performed but not yet invoiced, calculated on a proportional or time-cost basis;
c) we will provide you with any completed Deliverables that have been paid for in full. We are not obliged to deliver partially completed work unless you pay for all work done up to the termination date.
20.1 To the fullest extent permitted by law, fees for Services are non-refundable once work has commenced, except where we are required to provide a refund or other remedy under the ACL or other applicable law.
20.2 If a Service is not provided with due care and skill, our liability (to the extent permitted by law) is limited, at our option, to re-supplying the Services or paying the cost of having them re-supplied.
21.1 We warrant that we will provide the Services with reasonable care and skill and in a professional manner.
21.2 Except as expressly set out in these Terms or required by law, all other warranties and conditions (express or implied) are excluded to the maximum extent permitted by law.
22.1 Nothing in these Terms excludes or limits liability for:
a) fraud or fraudulent misrepresentation;
b) death or personal injury caused by negligence; or
c) any other liability that cannot be excluded under Australian law.
22.2 To the extent permitted by law, we are not liable for any:
a) loss of profit, revenue, goodwill, opportunity or anticipated savings;
b) indirect, consequential or special loss or damage;
c) loss arising from your use or misuse of Platforms.
22.3 Subject to clauses 20 and 22.1, our total aggregate liability arising out of or in connection with the Services and these Terms (whether in contract, tort, statute or otherwise) is limited to the total fees paid by you to us under the relevant Order in the 12-month period immediately preceding the event giving rise to the claim (or the total amount paid under that Order if it is shorter than 12 months).
23.1 You indemnify us and our directors, officers, employees and contractors against any loss, liability, damage or expense (including legal costs on a solicitor-client basis) arising from:
a) your breach of clauses 5, 15 or 16;
b) any claim that content, data or materials you provide infringe third-party rights or are misleading, deceptive or unlawful;
c) your use of purchased, rented or otherwise non-compliant marketing lists.
We are not liable for any failure or delay in performing our obligations due to events beyond our reasonable control, including natural disasters, epidemics, war, civil unrest, industrial disputes, failures of third-party hosting or Platforms, power failures or government restrictions.
25.1 During the term of this contract and for 6 months afterwards, you must not directly solicit for employment any of our employees or contractors who have been materially involved in the delivery of the Services, without our prior written consent.
25.2 If you hire such a person in breach of this clause, you agree to pay us a fee equal to 30% of their first year’s total remuneration, as a genuine pre-estimate of our loss.
26.1 Any notice under these Terms must be in writing and sent by email or post to the contact details specified in the Order (or any updated details notified by a party).
26.2 Notices sent by email are deemed received on the next business day after sending, unless an error message indicates failure of delivery.
27.1 You may not assign or transfer your rights or obligations under these Terms without our prior written consent.
27.2 We may assign our rights or subcontract any part of the Services, provided we remain responsible for the overall performance of the contract.
These Terms and the relevant Order constitute the entire agreement between the parties in relation to the Services and supersede all prior proposals, communications and understandings.
If any provision of these Terms is held to be invalid or unenforceable, that provision will be severed and the remaining provisions will remain in full force and effect.
These Terms are governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and the courts of appeal from them.
