Greenfish Marketing (trading as Greenfish Marketing) ABN/Company No: 12 622 134 025
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 10).
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:
a) Provide timely access to all required systems and information, including (as applicable) ESPs, ecommerce platforms, analytics, domains, DNS records, brand guidelines, product information and customer data.
b) Ensure all data you provide to us is accurate, up to date and lawful to use for the purposes of the Services.
c) Ensure you have obtained all necessary consents and permissions to send email and SMS marketing in compliance with the Spam Act 2003 (Cth), the Privacy Act 1988 (Cth) and any other applicable laws.
d) Maintain list hygiene, including removal of unsubscribes, bounces and suppression lists, unless the Order states we are responsible for specific list hygiene tasks.
e) Review and approve Deliverables within the timeframes indicated by us (or otherwise within a reasonable time).
f) Nominate a single primary contact with authority to provide instructions and approvals.
We are not responsible for delays, additional costs or performance issues arising from your failure to comply with this clause.
6.1 If we do not receive any communication, instructions, feedback, or approvals from you via email for a continuous period of twenty eight (28) days, we reserve the right to immediately close your active project(s) and/or terminate your account.
6.2 In the event that a project or account is closed due to inactivity under clause 6.1:
a) to the fullest extent permitted by law, any and all fees, deposits, or retainers paid up to the date of closure are strictly non refundable; and
b) any outstanding payments for work completed, resources allocated, or third party expenses incurred up to the date of closure will remain due and payable, or will otherwise be handled at our sole discretion.
7.1 Fees for the Services are as set out in the Order. Unless stated otherwise, all fees are exclusive of GST.
7.2 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.
7.3 Payment terms are strictly 14 days from the date of invoice, unless otherwise specified in the Order.
7.4 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.
7.5 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.
8.1 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.
8.2 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.)
9.1 A Retainer is an arrangement where you pay a recurring fee (usually monthly) for ongoing access to a defined set of Services.
9.2 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).
9.3 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.
9.4 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.
10.1 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.
10.2 We are not obliged to commence any out of scope work until you accept the Change Request in writing (including email).
11.1 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.
11.2 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.
11.3 If you do not provide feedback within that period, the Deliverable will be deemed accepted.
12.1 Unless otherwise set out in the Order, each Deliverable includes up to 3 rounds of reasonable revisions limited to the original scope and brief.
12.2 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 10.
13.1 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.
13.2 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.
13.3 Any performance forecasts, benchmarks or projections provided are indicative only and not a promise of results.
14.1 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.
14.2 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.
14.3 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.
14.4 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.
14.5 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.
15.1 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.
15.2 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.
16.1 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.
16.2 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.
16.3 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.
16.4 You must not share login credentials by insecure means. You are responsible for access controls within your own organisation.
17.1 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.
17.2 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.
17.3 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.
17.4 For SMS marketing Services, you are solely responsible for ensuring compliance with all applicable telecommunications frameworks, including the Australian Communications and Media Authority (ACMA) regulations, telecommunications consumer protections, and anti scam codes. This includes, but is not limited to, successfully registering and maintaining your SMS Sender ID (Alpha Tags) with relevant telecommunications registries. We are not liable for delayed, blocked, or failed SMS deliveries, nor any regulatory fines, arising from pending, rejected, or uncompleted Sender ID registrations or compliance profiles.
18.1 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.
18.2 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.
18.3 You acknowledge that third party Platform subscription fees (including but not limited to Klaviyo, Mailchimp, and Shopify) are dynamic and often scale automatically based on data usage, contact list sizes, or the volume of emails and SMS sent. We apply strategic practices to optimise your spend, but we accept no liability for any tier upgrades, automated billing spikes, or overage charges issued by third party Platforms resulting from the successful execution of your marketing strategy, automated flow triggers, or subscriber list growth.
19.1 You acknowledge and agree that we may utilise third party artificial intelligence (AI) and machine learning technologies, platforms, and tools, including but not limited to OpenAI (ChatGPT), Google (Gemini), Anthropic (Claude), and other automated systems (collectively, “AI Services”), to assist in the development, performance, and execution of our Services.
19.2 Our use of AI Services may span various deliverables, including but not limited to content creation, copywriting, marketing strategy, campaign ideation, automated workflow structures, data analysis, and reporting.
19.3 Data Inputs and Liability Disclaimer: You agree that data, information, customer metrics, or assets you provide to us may be processed or analysed using these third party AI Services. To the maximum extent permitted by law:
a) we accept no responsibility and assume no liability for the security, privacy, data retention policies, breaches, or actions of any third party AI Services; and
b) you warrant that you have obtained all necessary rights, licenses, and legal bases to provide such data to us, and agree not to provide highly sensitive, regulated, or restricted personal or proprietary data unless explicitly agreed in writing.
19.4 Output Accuracy and Final Review: AI Services are subject to inherent algorithmic limitations and may occasionally generate inaccurate, incomplete, or out of date outputs. While we apply professional skill, human oversight, and diligence to refine all deliverables, you maintain ultimate responsibility for reviewing, testing, and verifying all final Deliverables to ensure accuracy, fitness for purpose, and compliance with applicable consumer laws and industry codes.
19.5 Intellectual Property and Platform Limitations: Given the evolving global legal landscape surrounding AI generated output, we make no representations or warranties that AI assisted deliverables are fully eligible for exclusive copyright protection or trademark registration. Furthermore, we are not liable for any service interruptions, API failures, or changes in terms enacted by third party AI providers.
We may suspend or withhold Services (including disabling access to Deliverables) if:
a) any invoice is overdue;
b) you breach these Terms and do not remedy the breach within a reasonable time;
c) we reasonably believe continued Services could expose us to legal or regulatory risk; or
d) we are prevented from accessing necessary systems or information.
We will, where reasonably practicable, notify you before suspension.
21.1 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.
21.2 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.
21.3 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.
21.4 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.
21.5 Upon the expiration or termination of this contract for any reason, it is your sole responsibility to immediately revoke our access, admin permissions, API tokens, and login credentials across all your third party Platforms, websites, hosting providers, and software integrations. To the maximum extent permitted by law, we accept no liability for any security incidents, unauthorised account activity, data breaches, or automated platform charges that occur after the termination date if you have failed to revoke our access.
22.1 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.
22.2 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 resupplying the Services or paying the cost of having them resupplied.
23.1 We warrant that we will provide the Services with reasonable care and skill and in a professional manner.
23.2 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.
24.1 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.
24.2 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.
24.3 Subject to clauses 22 and 24.1, 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).
25.1 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, 16 or 17;
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.
27.1 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.
27.2 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.
28.1 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).
28.2 Notices sent by email are deemed received on the next business day after sending, unless an error message indicates failure of delivery.
29.1 You may not assign or transfer your rights or obligations under these Terms without our prior written consent.
29.2 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.
