1. Definitions & Interpretation
In this Agreement, unless inconsistent with the context or subject matter the following terms have the correspondingdefinitions:
ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
Address for Service: a party’s email address or address set out in the Proposal or such other address for service advised by the party to the other parties in writing from time to time.
Agreement: means this Services Agreement, consisting of these terms and conditions and the attached Proposal.
Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.
Business Day: a day on which banks are open for business in the capital city of the State, other than a Saturday,Sunday or public holiday in that city.
Background IP: any and all materials developed by the Agency:
prior to the Commencement Date that is to be used in the course of or in connection with the Services; or
following the Commencement Date which are general in nature and not created specifically for the Client insupplying the Services,
and which the Agency may use in respect of other clients.
Client Data: all documents, information, items and materials in any form, whether owned by the Client or a third party,which are provided by the Client (or on behalf of the Client) to the Agency in connection with the Services.
Commencement Date: the date set the Proposal is signed.
Confidential Information: means any information, whether recorded in writing or otherwise disclosed by one party to the other which any reasonable person would consider to be of a confidential nature, including without limitation any trade secrets, methods, strategies, competitor details, pricing, and other business processes. Confidential Informationdoes not include information that:
is or becomes independently developed or known by the other party through no breach of this Agreement bythat party; or
becomes publicly available without breach of this Agreement.
Corporations Act: the Corporations Act 2001 (Cth).
Early Termination Fee: the amount due as set out in the Schedule for each type of engagement.
Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limitedto):
strikes, lock-outs or other industrial action;
civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared ornot) or threat or preparation for war;
fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or othernatural disaster;
impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or privatetransport;
interruption or failure of utility services (including the inability to use public or private telecommunicationsnetworks); and
the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however, does not include a lack of funds.
Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department,commission, authority, tribunal, agency or entity in any part of the world.
GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed inrespect of a person or any asset of a person;
a liquidator or provisional liquidator is appointed in respect of a person;
any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order ismade, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to inparagraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with anycreditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a personare subjected conditionally or unconditionally to the control of its creditors or a trustee;
any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for anypurpose), insolvent or unable to pay its debts.
Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in thefuture (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidentialinformation), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
Loss: any loss, liability, cost, charge, expense, Tax, duty or damage of any nature whatsoever, including special,incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation,negligence).
New IP: all things, materials and information, created, conceived, developed or generated by the Agency (whether alone or with the Client or its Personnel) specifically for the Client in supplying the Services under this Agreement (butexcludes the Background IP).
Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
Pre-existing IP Rights: Intellectual Property Rights in all materials owned by the Client or Agency (as the case may be) prior to the date of this Agreement or which was developed independently of the Services.
Related Entity: has the meaning given in section 9 of the Corporations Act.
Schedule: the Proposal attached to this Agreement.
Service Fees: has the meaning given in clause 5.1.
Services: the services set out in the Schedule to be provided by the Agency to the Client, and as amended from time totime in accordance with this Agreement.
State: Western Australia.
Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee orany other amount imposed on or in respect of any of the above.
Tax Invoice: has the meaning provided for that term in the GST Law.
Term: means the term of this Agreement commencing and ending in accordance with clause 2.
In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwiserequires:
Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.
References to parties are references to the parties to this Agreement.
References to a party to any agreement or document include that party’s permitted assignees and successors,including executors and administrators and legal representatives.
Words denoting the singular include the plural and words denoting the plural include the singular.
Words denoting any gender include all genders.
The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust,association and any Government Agency.
A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
A reference to any agreement or document (including this Agreement) includes any amendments to or replacements ofthat document.
A reference to a law includes:
legislation, regulations and other instruments made under legislation and any consolidations, amendments,re-enactments or replacements of them;
any constitutional provision, treaty or decree; any judgment;
any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons bindsthem jointly and each of them severally.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for thebenefit of them jointly and each of them severally.
No provision of this Agreement will be construed adversely to a party because that party was responsible for thepreparation of that provision or this Agreement.
If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
A reference to time is a reference to time in the capital city of the State. A reference to a day is areference to a day in the capital city of the State.
A reference to a business day is a reference to a day on which banks are open for business in the State, other thanSaturday, Sunday or a public holiday in that State.
A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performedafter 5.00 pm on that day, the act is deemed to be performed on the next day.
If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealthof Australia, unless the amount is specifically denominated in another currency.
Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney hasno notice of revocation of the power of attorney.
This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.
A reference to writing or written includes email.
Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase havecorresponding meanings.
- This Agreement will start on the Commencement Date and will continue in the manner set out in the Schedule until terminated in accordance with the terms of this Agreement (Term). The terms of the engagement, including, any minimum engagement periods are as set out in the
3. Engagement of the Agency
The Client engages the Agency to provide the Services to the Client during the Term in the manner as specified in theSchedule in accordance with the terms of this Agreement.
3.2 Nature of engagement
The engagement of the Agency by the Client is on a non-exclusive basis, and the Agency may provide services which are the same as or similar to the Services to a third party during the Term.
The scope of the Services is as set out in the Schedule and as otherwise agreed between the parties in an Additional Work Request (as defined below). Anything not specifically noted within the scope set out in the Schedule is not included within the scope of the Services.
The Agency may agree to amendments to the scope at its discretion in accordance with clause 7. Any amendments agreed to may attract additional fees in accordance with clause 7.
4.2 Performance of Services
During the Term, the Agency shall provide the Services to the Client in the manner, frequency, quantity and times as set out in the Schedule and as otherwise agreed between the parties in writing.
Any milestone, delivery or performance dates relating to the Services which are set out in this Agreement or otherwise agreed to by the parties are estimates only, and time for performance will not be of the essence of this Agreement orbinding on the Agency.
Where time is to be recorded during the provision of the Services, then unless otherwise agreed, the Agency will record time for performance of the Services in 6 minute units, and will be rounded up to the nearest unit. For example, if theAgency is engaged for 22 minutes, this will be recorded as 24 minutes (4 units).
5. Fees and payment
5.1 Service Fees
In consideration of the Agency providing the Services, the Client must pay to the Agency the fees for the Services in the amount and in the manner as specified in the Schedule (Service Fees).
Where the Service Fees indicate that a fixed number of hours of Services will be provided per month, then:
any unused hours in any given month will not roll over to the next month and will expire; and
any additional hours of Services provided which exceeds that fixed number will be charged to the Client at theAgency’s then current hourly rate and will be added to the next Tax Invoice issued to the Client (unless otherwiseagreed).
5.2 Payment Terms
During the Term, the Agency will provide a Tax Invoice in respect of the Service Fees to the Client at the times as set outin the Schedule.
The Client must pay each Tax Invoice submitted by the Agency in accordance with the payment terms set out in theSchedule.
The Client agrees that the payment of the Service Fees does not include payment of any third-party expenses, outlaysand disbursements or incidental expenses that relate to the Services in any way (Disbursements). For the avoidanceof doubt, the Client is responsible for all Disbursements in connection with Services, including (without limitation) digitalmarketing and social media ad spend amounts.
The Agency reserves the right to:
require the Client to pay for the Disbursements upfront, in which case the Agency will invoice the Client for such Disbursements upfront and the Client agrees to make payment by the due date set out on the invoice; and/or
provide the Client with an invoice in arrears for such Disbursements, in which case the Client authorises the Agency to make payment of such Disbursements on its behalf, and the Client must make payment of the invoicein arrears by the due date stated on the invoice,
and in the event that the Client fails to do so the Client acknowledges that the Agency may not be able to provide theServices (however all Service Fees will still be payable).
The Client acknowledges that although an ad budget may be set on a third party advertising platform (such as Google Adwords), the Agency will not be liable for any underspend or overspend of that budget that ultimately occurs and the Client is solely liable for such payments in this regard. This is due to third party advertising platforms often onlypermitting an estimated budget to be inputted.
The Client acknowledges that the Agency will not be liable for any incorrect payments charged by a third partyadvertising platform. The Client agrees to communicate directly
with the advertising platform should any incorrect charges be made on the Client’s nominated account by a thirdparty advertising platform
5.4 Default in payment
In the event the Client fails to pay the Service Fees or other amounts payable hereunder when due in full in cleared funds inaccordance with this Agreement, the Agency may at its discretion and in addition to any other rights it has under thisAgreement or at law:
cease providing the Services to the Client without notice until all overdue amounts are paid (including any accrued interest in accordance with sub-clause (b)), and the Agency will not be responsible for any Loss the Client suffersbecause of this;
charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily until the date of actualpayment of the overdue amount and all accrued interest;
terminate this Agreement, whereupon the Service Fees for the Services performed up to the date of termination, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable in addition to any other amounts payable by the Client as at the date of termination.
5.5 Default in terms
The Client will also pay to the Agency, on demand, on a full indemnity basis, all amounts that the Agency may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on anyof the terms of this Agreement.
The Client must make all payments to the Agency in cleared funds, without set-off or counterclaim. Payment of the Service Fees is not dependent on receipt of the Tax Invoice.
Except to the extent permitted under these terms, all amounts paid to the Agency under this Agreement are non-refundable to the extent permitted by law.
6. Client duties and responsibilities
6.1 Supply of information, approvals, documents and assistance
The Client acknowledges and agrees that it will promptly provide all information, account access details, documentation, approvals and assistance reasonably required by the Agency in order for the Agency to provide the Services as soon as possible on being requested to do so. This includes, without limitation, access to required software platforms and accounts necessary to perform the Services such as website logins, Google Analytics, and Facebook Business Manager access and any other information set out in the Schedule. Any delays may delay the Services and may incur additional charges.
6.2 Compliance with Laws
The Client acknowledges and agrees that it will not by receiving or requesting the Services: breach any ApplicableLaws, rules and regulations (including any applicable privacy
infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
If the Agency’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client or its Personnel for a period of at least 21 days, then, without prejudice to any other right or remedy it may have, theAgency may:
terminate this Agreement; and/or
invoice the Client for any part or parts of the Services already performed and any Services currently in progress.
7. Quality Control
- Although the Agency will use reasonable endeavours to ensure that the Services provided are current, accurate, up-to-date, complete and compliant, the Agency does not warrant, and the Client accepts sole responsibility to ensure that:
all content supplied is current, accurate, adequate, up-to-date, complete and correct; all content supplied iserror-free in terms of layout, spelling, grammar, punctuation
and consistency; and
the content contained in the Services is compliant with Applicable Laws (including misleading and deceptiveadvertising laws).
- It is the Client’s sole responsibility to review and confirm they are satisfied with any content prepared by the Agency as part of the Services, and the Agency will not be liable for any Loss the Client suffers in this respect. This includes without limitation ensuring that any copy is correct, non-misleading and error-free.
- Should the Client require amendments or additions to the scope of the Services specified in the Schedule, then the Client may request the Agency provide such amendments (Additional Work Request), and the Agency may accept or reject suchrequest at its sole
- An Additional Work Request may be provided in writing, by email, by text or verbally including by telephone. Each Additional Work Request will not be binding on the Agency until such time as the Agency has indicated its acceptance. Once accepted, the Additional Work Request will be binding on the
- If the Agency accepts an Additional Work Request then it will:
(for amendments to scope) provide an additional quote (with additional fees if required to be paid as advised by theAgency at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these scopechanges; or
(for additional hours) provide an additional quote with additional fees charged at the hourly rate set out in the Scheduleor as otherwise advised by the Agency and if accepted by the Client such additional hours will be added to the invoice.
- Each Additional Work Request if accepted, will form part of this Agreement and will not form a separate contract to
- If there is any inconsistency between the terms set out in this Agreement and the terms set out in an Additional Work Request, the terms in the Additional Work Request prevail to the extent of the
- The Agency reserves the right to make changes to the Services which are necessary to comply with Applicable Laws,Government Agency requests or safety
- The Client is solely liable for the payment of any additional Services outside of the scope that is set out in the
- The parties acknowledge that:
the Agency is engaged by the Client as an independent contractor and nothing in this Agreement creates or constitutes a relationship of employer and employee, trustee and beneficiary or of partnership or joint venture between theparties; and
the Agency is free to provide its services to third parties during the Term.
10. Delegation and subcontracting
- The Agency may subcontract, delegate and/or perform the Services through any other party competent to perform that
- The Agency will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by the
- The Client acknowledges that neither it nor any of its Personnel are entitled to the benefit of any accident, third party, public liability or indemnity policies of insurance or any workers compensation policies which may be in force for the benefit or protection of the Agency’s
- Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or itsbusiness (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms ofthis Agreement, except:
where the information is in the public domain as at the date of this Agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, provided that the Recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of thedisclosure;
where the disclosure is expressly permitted under this Agreement;
if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable theRecipient to properly perform its obligations under this Agreement or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclosethe information to any other person;
where the disclosure is required for use in legal proceedings regarding this Agreement; or
if the party to whom the information relates has consented in writing before the disclosure.
- Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Entities comply in allrespects with the Recipient’s obligations under this
- This clause survives termination or expiry of this
- The obligations of confidentiality in this clause are not affected by the expiry or termination of this
13. Intellectual property
13.1 Pre-existing IP
Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.
Each party warrants it has the rights to all Pre-existing IP Rights and the grant of licence of such on the terms set out inthis Agreement to the other party will not violate or infringe upon the Intellectual Property Rights or any other rightswhatsoever of any person, form, corporation or other entity.
If the use of the Client’s Pre-existing IP Rights by the Agency becomes necessary for the performance of the Services, the Client grants the Agency a worldwide, fully paid-up, non-exclusive, royalty free, perpetual, transferable, assignable licence (with the right to sub-licence) to exploit the Pre-existing IP Rights owned by the Client for the purpose ofproviding the Services.
13.2 Background IP
The Client acknowledges that the Agency (or the relevant third-party licensor) shall at all times retain all title, interest and rights (including Intellectual Property Rights) to the Background IP.
To the extent that the Agency incorporates any Background IP into the New IP, the Agency grants to the Client, to the extent that the Agency owns the Background IP, a limited, revocable, non-transferable, non-sublicensable, non-exclusive licence to use the Background IP solely for use with the New IP for the purpose which it was originallyprovided, and in the same manner as it was originally incorporated with the New IP.
To the extent that the Agency otherwise permits the Client to use any Background IP in connection with the Services, the Agency grants to the Client, to the extent that the Agency owns the Background IP, a limited, revocable, non-transferable, non- sublicensable, non-exclusive licence to use the Background IP solely to the extent required tobenefit from the Services and only for the Term.
The Client acknowledges the Agency’s title to the Background IP and undertakes not to take or permit or omit anyaction which would or might:
invalidate or put in dispute the Agency’s title to the Background IP or any part of it;
oppose any application for registration or invalidate any registration of the Background IP or any part of it;
support any application to remove or undo the Agency’s title in the Background IP or any part of it; or
assist any other person directly or indirectly in any of the above.
13.3 New IP
To the extent that the Agency owns the New IP, the Agency grants, or will procure the grant to the Client of a limited,non-exclusive, revocable, non-transferable, non- sublicensable nor assignable licence to use the Intellectual PropertyRights to such New IP that are created specifically for the Client, subject to the other terms of this clause, on and from the date that all fees payable under this Agreement for such New IP are paid in cleared funds.
The licence under clause 13.3 grants the Client use of the New IP solely: for the purpose theAgency has created the New IP for; and
to the extent required to benefit from the Services.
The Client acknowledges and agrees that:
at all times, the Agency shall retain ownership of the strategies and know-how used by it to provide the Services;
the Agency may use templates, other third party intellectual property and open source assets in providing the Services, and the owner of such other property retains all copyright and ownership in that property and it will not form part of any New IP. In that case, the Agency grants the Client a non-exclusive licence to use the other property to obtain the fullbenefit of the Services;
the Agency may create other designs and assets that have a similar look and feel to any deliverables delivered through the Services (including the New IP), and provide others with services that are similar to the Services that the Agency provides to the Client, and the Client must not object to this or claim that the Agency has infringed any rights of theClient and
the Agency may incorporate images into the Services which are the property of third parties and which are subject to licence terms, which may include the payment on ongoing licence fees. The Client agrees to be bound by and complywith all such licence terms and will be solely liable for all obligations thereunder.
13.5 Client Data
will retain ownership of all Intellectual Property Rights in the Client Data; and
grants the Agency a non-exclusive and irrevocable licence to copy, reproduce, store, distribute, publish, export, adapt,edit and translate the Client Data to the extent reasonably required by the Agency for the performance of the Agency’s obligations and exercise of its rights under this Agreement.
13.6 Client warranties
warrants that the receipt and use in the performance of this Agreement by the Agency, and its Personnel of the Client Data will not infringe the rights, including any Intellectual Property Rights, of any third party; and
must keep the Agency indemnified in full against any liabilities, costs, charges, or expenses, damages and losses andall interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costsand expenses suffered or incurred by the Agency arising out of or in connection with any claim brought against theAgency for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Client Data.
This clause survives termination of Agreement.
During the Term, and following expiry of the Term, each party (and its Personnel) must not by any method including on socialmedia anywhere in the world:
make any public or private statement, public or comment, whether oral or in writing, which in the reasonable opinion of the other party, is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark orrepresentation about the other party (and its Personnel); or
make any public or private statement that is false and does or has the tendency to damage the reputation of the otherparty (and its Personnel).
15. Representations and warranties
- Each party represents and warrants to the other that:
it has full authority to enter into this Agreement and is not bound by any agreement with any third party that adverselyaffects this Agreement; and
it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fullyperform its obligations under this Agreement.
- Each party will immediately notify the other party if any of the foregoing representations and warranties cease to be trueduring the term of the
16.1 Termination with cause
In addition to such rights set out under this clause 16, either party (the non-defaulting party) may terminate this Agreement with immediate effect by giving written notice to the other party if:
the other party (being the Client) fails to pay any amount due under this Agreement on the due date for payment andremains in default not less than 7 days after being notified in writing that the payment is overdue;
the other party suffers an Insolvency Event; or
the other party commits a breach of any term of this Agreement and either: the breach is irremediable; or
the breach is remediable, and the other party fails to remedy that breach within a period of 30 days after theother party has, or is deemed to have, received written notice requesting it to do so.
16.2 Termination by the Agency
The Agency may terminate this Agreement, at any time, without cause by giving 30 days’ written notice to the Client.
16.3 Additional termination rights
Additional termination rights and Early Termination Fees (if any) are as specified in the Schedule.
17. Consequences of termination
- On termination or expiry of this Agreement:
each party must promptly deliver to the other all property belonging to the other that is in its possession or control,including any Confidential Information or intellectual property;
the Client must immediately pay to the Agency all amounts payable to the Agency (including amounts that are payablebut not due);
the Agency may invoice the Client with respect to the Services performed up to the date of termination and such invoiceshall be payable immediately on receipt;
where an Early Termination Fee is applicable, as set out in the Schedule, the Agency may invoice the Client for the Early Termination Fee and such invoice shall be payable immediately on receipt; and
unless otherwise expressly set out in this Agreement and to the extent permitted by law, no refunds of amounts paid in respect of the period post termination or expiry will be provided.
- Termination or expiry of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or
- The Agency provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services and any information or guidance provided by the Agency to the Client throughout the provision of the Services (Information) at its own
- Without limiting clause 1 the Client acknowledges and agrees that:
any Information is not and should not be construed as financial and/or legal advice and is not intended to be asubstitute for such advice and should not be relied upon as such. Such Information is provided as general guidanceonly, without representation or warranty;
whilst every effort is made to ensure any Information provided by the Agency is accurate, the Agency makes norepresentations about the currency, suitability, reliability, availability, timeliness, and accuracy of any Information for any purpose. The Client should verify the accuracy of any information provided before relying on it;
the Agency does not control any third party that it refers to the Client and takes no responsibility for the actions ofthird parties. As a result, the Agency provides no guarantee or warranty or indemnity in respect of such third party’s ability to undertake their respective obligations or otherwise;
although the Agency provides Information to assist the Client, the Agency is not responsible for decisions that the Client may make nor losses that may arise out of any decision made by the Client at any time. The Client is solely responsible for following or not following, or making an assessment of, any Information provided. The Client shouldmake their own enquiries and obtain their own independent advice in relation to the
Information provided before making any decision or taking any action based on their contents;
the Client is solely liable for ensuring that it complies with Applicable Laws. For the avoidance of doubt the Agency willnot be liable for ensuring that the Client complies with Applicable Laws;
the Agency does not provide any guarantee of results or any particular outcome; and the Agency makes nowarranty that the Services will generate any increase in sales,
business activity, profits or any other form of improvement for the Client’s business or any other purpose.
18.3 Events outside of the Agency’s control
The effectiveness of the Services may be affected by circumstances outside the Agency’s control including:
the Client’s account that is used by the Agency to perform the Services being cancelled or disabled on atemporary or permanent basis;
the platform that is used by the Agency to perform the Services changes its functionality;
changes in the policies and/or ranking algorithms of search engines;
changes to the Client’s account occasioned by a party other than the Agency; or a third party ceasing theassets of the Client,
and the Agency will not be liable for any Loss suffered by the Client arising from such circumstances.
This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement.
19. Exclusion & limitation of liability
- Subject to the other terms of this clause, the Agency excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by
- Subject to the other terms of this clause, the Agency’s maximum aggregate liability to the Client for any Loss arising out of or in connection with this Agreement, including any breach by the Agency of this Agreement however arising, under anyindemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual ServiceFees paid by the Client to the Agency under this Agreement in the one month period preceding the matter or event giving riseto the
- Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Agency inrelation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or
- If the Agency is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Agency’s total liability to the Client for that failure is limited to, at the option of the Agency, the resupply of the Services or the payment of the cost of
- Without limitation to the other terms of this clause, the Agency excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this
- Notwithstanding anything else in this clause, the Agency’s liability will be reduced to the extent the loss or damage is causedby or contributed to by the Client or the Client’s
- The Agency will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of anywarranty unless:
the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
that claim has been denied in whole or partly by the relevant insurer.
- If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of this
- Except to the extent caused or contributed to by breach of this Agreement by the Agency, the Client indemnifies the Agency against, and holds the Agency harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expensessuffered or incurred by the Agency arising out of or in connection with:
the Client’s breach or negligent performance or non-performance of this Agreement;
any claim made against the Agency or the Client by a third party arising out of or in connection with:
the provision of the Services and/or this Agreement; the Client’s use of theBackground IP and the New IP;
the reliance by the Client or a third party on the Services; or defective Services,
to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by, or is attributable to the acts or omissions of, the Client or the Client’s Personnel;
any claim made against the Agency or the Client by a third party that the use of the Client Data by the Agency infringes any third party rights (including intellectual property rights or confidentiality rights);
any illegal practices that the Client or the Client’s Personnel performs or engages; the enforcement of thisAgreement; and
any act, omission or wilful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).
- The Client must make payments under this clause :
immediately on demand, in full without set-off or counterclaim, and without any deduction in respect of taxes unlessprohibited by law; and
in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
- It is not necessary for the Agency to incur expense or make payment before enforcing a right of indemnity under this
- The indemnities in this clause:
are continuing obligations of the Client, independent from its other obligations under this Agreement and survivetermination or expiry of this Agreement; and
are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing,releasing, discharging or affecting the liability of the Client.
21.1 Restraint on staff
In order to reasonably protect the Agency, the Client agrees with the Agency that it will not (and will procure its Personnel do not), whether directly or indirectly (including through a Related Entity), for each of the Restraint Periods:
canvass, solicit, interfere, or entice away, or attempt to canvass, solicit, interfere, or entice away, Restricted Staff, toleave their employment or engagement with the Agency or with a view to engage such Restricted Staff in a RestrictedBusiness;
interfere in any way with the relationship between the Agency and its Restricted Staff; or engage in anycombination of the above.
For purposes of this clause:
“Restraint Period” means during the Term of this Agreement and for a period of: 12 months;
after the expiry or termination of the Term. “Restricted Business”means:
a business or operation similar to, or competitive with the Agency; any business thatcompetes with the Agency;
any business that operates in the industry of the Agency; or
any business or operation similar to that carried on by the Client in which the Restricted Staff was engagedwith.
“Restricted Staff” means an employee, contractor, officer or agent of the Agency:
with whom the Client has had dealings with during the 12 month period prior to the event that gives rise to thisclause; or
who was an employee, contractor, officer or agent of the Agency in the 12 month period prior to termination of thisAgreement.
This clause has effect as if it consisted of several separate covenants and restraints consisting of each separate covenant and restraint set out in clause 21.1 combined with each separate Restraint Period (as appropriate) (“RestraintCovenants”) and if any of the Restraint Covenants are or become invalid or unenforceable for any reason then theinvalidity or unenforceability does not affect the validity or enforceability of any of the other Restraint Covenants.
This clause shall be interpreted as a goodwill covenant and without reference to, and independent of, any other covenant in restraint of trade contained any other agreement or deed given by the Client.
The Client acknowledges and agrees that:
any combination of the acts referred to in clause 21.1 combined with each separate Restraint Period referred to wouldbe unfair and calculated to damage the Agency;
the Client has received substantial and valuable consideration for the Restraint Covenants including that it:
has acquired significant information about the business of the Agency including the names of employees, contractors, officers, agents, suppliers and customers with whom the Agency does business;
has had the opportunity to forge personal links with employees, contractors, officers, agents, suppliers andcustomers; and
has had the opportunity to learn and acquire trade secrets, business connections and other ConfidentialInformation about the Agency’s business;
disclosing Confidential Information, or using Confidential Information to the Client’s benefit or the benefit of a competitor of the Agency, could materially harm the Agency’s business;
the Restraint Covenants contained in this Agreement are reasonable in scope, duration and time, and reasonably necessary to protect the Agency’s goodwill and legitimate interests and that the Client has been responsible for andapproves its drafting;
it has received legal advice or has had the opportunity of obtaining legal advice in relation to this advice;
the Agency may apply for injunctive relief if the Client breaches or threatens to breach this clause; and
the words “directly or indirectly interested or engaged in or concerned with” are all to be given the widest possibleinterpretation and include (without derogation from their generality) such activities through any association or arrangement with any person, relative, nominee or trust in or over which any interest or influence (absolute or partial) isheld.
21.5 Permitted activities
This clause will not apply in circumstances where the activity has been expressly agreed to in writing from time to time by the Agency.
22. Force majeure
- The Agency will not be in breach of this Agreement or liable to the Client for any Loss incurred by the Client as a direct result of the Agency failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from a Force Majeure
- If a Force Majeure Event occurs, the Agency must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated
- On providing the notice above, the Agency will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Agency must continue to use all reasonable endeavours to perform those
- Subject to the other terms of this clause, the performance of the affected obligations must be resumed as soon as practicableafter such Force Majeure Event is removed or has
Words used in this clause 23 that have a defined meaning in the GST Law have the same meaning as in the GST Lawunless the context indicates otherwise.
Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement isexclusive of GST.
To the extent that any supply made under or in connection with this Agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable bythe recipient is the consideration provided under this Agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multipliedby the rate at which GST is imposed in respect of the supply.
The recipient must pay the additional amount at the same time as the consideration to which it is referable, and uponthe issue of an invoice relating to the supply.
Whenever an adjustment event occurs in relation to any taxable supply to which clause 23.2(b) applies:
the supplier must determine the amount of the GST component of the consideration payable; and
if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
- All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s Address for Service or as the case may be at such other address as a party may from time to time notify to the
- The following shall constitute proof of receipt: proof by posting byregistered post; or proof of dispatch by
- Receipt of a notice given under this Agreement will be deemed to occur:
in the case of a communication sent by pre-paid registered post, on the third business day after posting;
in the case of an email, on the business day immediately following the day of dispatch.
- If a notice is sent via post, it must also be sent via
25. General provisions
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
25.2 No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to theextent set out in that waiver.
Words or conduct referred to in clause 25.2(a) include any delay in exercising a right, any election between rights andremedies and any conduct that might otherwise give rise to an estoppel
25.3 Assignment, Novation and Other Dealings
The Agency may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.
Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Agency, whose consent must not be unreasonably withheld.
This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence ofexecution by email.
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.
If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severableterms or not.
Clause 25.6(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.
25.7 No Merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will notmerge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination orexpiry.
25.9 Time of the Essence
Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.
25.10 Remedies Cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
25.11 Entire Agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prioragreements, understandings, negotiations and discussions in respect of its subject matter.
25.12 Governing Law and Jurisdiction
This Agreement is governed by the law in force in the State.
Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described inclause 25.12(a) on the basis that:
any proceeding arising out of or in connection with this Agreement has been brought in an inconvenientforum; or
the courts described in clause 25.12(a) do not have jurisdiction.