The following Terms of Service will apply to all Services supplied by CoPilot Group Pty Ltd ACN 624 568 538 as trustee for the Finnegan Family Trust ABN 85131264977 (the Agency) to you (the Client). If you are agreeing to these Terms of Service on behalf of someone or entity, you represent and warrant that that you have the irrevocable authority and agreement of that person or entity to be bound by these Terms of Service.
The Agency offers online marketing and SEO packages that include all services displayed on SEOCopilot.com.au (the Website) or otherwise offered privately to each client. The Agency reserves the right to suspend or discontinue the availability of any service at any time at its sole discretion and without prior notice.
These Terms of Service, together with any other terms we provide to you, set out the terms of our offer to provide Services to you and constitutes our agreement.
In the event of any inconsistency between these Terms of Service and the Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.
1.1 In this Agreement unless inconsistent with the context or subject matter:
- ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
- Agreement: means this agreement consisting of this Terms of Service and attached or referenced Quote.
- Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.
- Client: the Client identified in the Quote, and if there is more than one Client is a reference to each Client jointly and severally.
- 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.
- 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 Information does not include information that:
- is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or
- becomes publicly available without breach of this Agreement.
- Contract Materials: all things, materials and information, created, conceived, developed or generated by the Agency (whether alone or with the Client, its employees, agents or contractors) in supplying the Services under this Agreement.
- Corporations Act: the Corporations Act 2001 (Cth).
- Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
- strikes, lock-outs or other industrial action;
- civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
- impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
- interruption or failure of utility services (including the inability to use public or private telecommunications networks); and
- the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however, does not include a lack of funds.
j. 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.
k. GST: has the meaning given to it in the GST Law.
l. GST Law: means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
m. Insolvency Event:
- a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect 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 is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (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 any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are 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 any purpose), insolvent or unable to pay its debts.
n. Intellectual Property Rights: all intellectual property (IP) rights of any kind, in any jurisdiction, subsisting now or in the future (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, confidential information), 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.
o. 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).
p. Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
q. 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.
r. Quote: the fees published on the Website or any quote privately provided to the Client (as the case may be).
s. Services: the services set out in the Quote to be provided by the Agency to the Client, and as amended from time to time in accordance with this Agreement.
t. Start Date: the date set out in the Quote.
u. State: Victoria, Australia.
v. 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 or any other amount imposed on or in respect of any of the above.
w. Term: has the meaning given in clause 3.
1.2 In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
- 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 of that 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.
k. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
l. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
m. No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
n. 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.
o. A reference to time is a reference to time in the capital city of the State.
p. A reference to a day is a reference to a day in the capital city of the State.
q. A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
r. If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
s. 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.
t. A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
u. 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.
v. Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
w. This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.
x. A reference to writing or written includes email.
y. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2.1 This Agreement will become binding on the Client on the earlier of the date that a) the Client gives its acceptance to them such as by ticking a box that indicates their acceptance; b) the Client instructs the Agency to proceed with any Services; or c) the Client pays any amount to the Agency in respect of the Services.
2.2 This Agreement applies to all Services provided by the Agency to the Client at any time following the time when this Agreement becomes binding on the Client.
2.3 The Client cannot terminate this Agreement except to the extent as expressly permitted by this Agreement.
2.4 The Client acknowledges and agrees that the supply of Services remains subject to availability and if, for any reason the Agency is unable to proceed with the supply, the Agency reserves the right to cancel the Services (and issue a refund for the cancelled Services if applicable). This is the Client’s only remedy in these circumstances and the Agency will not be liable to pay any other amount to the Client.
2.5 No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Agency) will vary or form part of this Agreement unless otherwise agreed by the Agency in writing. This Agreement replaces and supersedes any invoice, terms or other document given by the Client to the Agency whether before or after the time that this Agreement is supplied to the Client.
3.1 This Agreement will start on the Start Date and will continue in the manner as specified in the Quote (Term).
3.2 Subscription based arrangements will run month-to-month until terminated. In order to avoid interruption of such arrangements, subscription based arrangements will automatically renew at the end of each month unless either party gives written notice to the other party to terminate. The termination will be effective at the end of the then current month in which the notice is given. There are no refunds for part months.
3.3 Fixed scope arrangements will run until the Services are completed unless terminated earlier.
4. provision of SERVICES
4.1 The Agency and the Client agree that the Agency will provide the Services to the Client on the terms and conditions contained in this Agreement. The engagement of the Agency is on a non-exclusive basis.
4.2 The scope of the Services is as agreed by the parties in a Quote.
4.3 The Agency may agree to amendments to the scope at its discretion in accordance with clause 11. Any amendments agreed to will attract additional fees in accordance with clause 11.
4.4 Any agreement between the parties as to the delivery schedule and amendments to the scope of the Services will be incorporated into this Agreement.
4.5 The Quote may contain additional terms which form part of this Agreement. In the event of any inconsistency between this Terms of Service and any Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.
4.6 The Agency may subcontract, delegate or perform the Services through any person without the prior written consent of the Client.
5. SEO Services
5.1 In relation to any Services involving search engine optimisation (SEO Services), the Agency makes no promise or guarantee regarding the effectiveness of any SEO Services, but instead by using its professional skills aims to deliver an incremental improvement to the Client’s website traffic.
5.2 The Agency will undertake the optimisation of the Client’s website for such SEO Services.
5.3 The Client acknowledges that the Agency has no control over the change to search engine policies or algorithm changes and at any time the Client’s website may lose rankings or be excluded from any search engine at the sole discretion of the search engine. The Client agrees to release the Agency and its Personnel from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
5.4 During the provision of the Services, the Client may provide the Agency with access to make changes to their website. However, the Client agrees that the Agency is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data.
6. Digital Marketing Services
6.1 In relation to any Services involving digital marketing services such as Google Adwords, and Facebook Ads (Digital Marketing Services), the Client acknowledges and agrees that:
- the Agency is authorised to set up digital marketing campaigns and deliver paid traffic to the Client’s selected website as required for the provision of the Services. This can be from a variety of networks as agreed in the Quote. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. The Agency will not be held liable in this situation;
- any alterations of the keywords by the Client after the initial selection of the keywords will incur additional fees;
- if the Agency elects to use a paid platform account owned by the Client, the Client expressly authorises the Agency to access and make changes to such accounts;
- the Agency makes no promise or guarantee regarding the effectiveness of any Digital Marketing Services;
- the Client is solely responsible to ensure that they are compliant with the relevant privacy laws with respect to direct marketing.
7. Fees & Payment terms
- In consideration of the Agency providing the Services, the Client must pay the Agency the fees for the Services in the amount as specified in a Quote or as otherwise agreed between the parties.
- The Agency reserves the right to vary the fees payable, even after the Client has accepted a Quote or instructed the Agency to proceed with the Services, in the event of variations to the Services requested.
7.2 Invoicing and payment terms
a. The Client must pay the fees for the Services at the time/s as specified in the Quote. If no time/s are stated or no Quote given, then the following payment terms will apply:
- for subscription based arrangements, the Agency will invoice the Client monthly in advance from the Start Date, and payment of each invoice is to be made by direct debit on the date of such invoice (unless otherwise agreed by the Agency);
- for fixed term arrangements, the Agency will invoice the Client at the intervals as advised by the Agency and payment terms will be as advised by the Agency.
b. At the Agency’s sole discretion a non-refundable deposit may be required. If a deposit is set out in the Quote, the Client must pay the deposit immediately upon accepting a Quote, and the Client acknowledges that the Agency will not commence the provision of the Services until payment is received.
c. Payment must be made by one of the methods approved by the Agency.
7.3 Other expenses
- Other expenses payable by the Client will be as set out in the Quote.
- 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 only permitting an estimated budget to be inputted.
- The Client acknowledges that the Agency will not be liable for any incorrect payments charged by a third party advertising 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 third party advertising platform.
7.4 Default in payment
In the event the Client fails to pay the fees or other charges when due in full in cleared funds in accordance with this Agreement, the Agency may at its discretion:
- cease providing the Services to the Client without notice until all overdue amounts are paid; and
- charge the Client interest on the overdue amount at the rate of 10% per annum accruing daily until the date of actual payment; and/or
- terminate this Agreement, whereupon the 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.
7.5 Direct debit
If the fees are to be paid via a direct debit arrangement, then the Client irrevocably authorises the Agency to debit the fees during the term from the Client’s nominated bank account/credit card/debit card (“Debit Account”), on or about the due date for payment without notice to the Client. The Client must ensure that the Debit Account details are up to date at all times and the Client must notify the Agency in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Agency to deduct all other fees and charges payable by the Client to the Agency under this Agreement from the Client’s nominated Debit Account. The Client warrants that the Client is the owner or has the right to use any Debit Account details provided to the Agency. Default charges will apply in the event that the Client stops the authority to charge the Debit Account without acceptance by the Agency or if there are insufficient funds in the Debit Account.
- The Client must make all payments without set-off or counterclaim. Payment of any fees is not dependent on receipt of a tax invoice.
- All amounts paid to the Agency under this Agreement are non-refundable to the extent permitted by law.
8. performance OF SERVICES
8.1 The provision of Services by the Agency to the Client will take place at a time agreed between the Agency and the Client.
8.2 The provision of Services to a third party nominated by the Client shall be deemed to be provision of the Services to the Client for the purpose of this Agreement.
8.3 Any times provided by the Agency to the Client in respect of the provision of the Services are estimates only and are non-binding on the Agency. Whilst the Agency attempts to provide all Services at the agreed times, sometimes delays are inevitable and the Agency will not be responsible for any Losses suffered by the Client in the event of delay.
8.4 The Client acknowledges that upon a Quote being accepted, the Agency allocates resources and time to the fulfillment of that Quote.
9. Agency’s duties and responsibilities
9.1 The Agency must provide the Services:
- with reasonable care and skill; and
- using its own equipment except where otherwise agreed or arranged.
9.2 The Agency must:
- use reasonable endeavours to provide the Services to the Client in accordance with the Quote in all material respects; and
- use reasonable endeavours to meet any performance or milestones dates specified in the Quote but any such dates will be estimates only and time for performance will not be of the essence of this Agreement or binding on the Agency.
10. Client duties and responsibilities
10.1 Supply of information, approvals, documents and assistance
The Client acknowledges and agrees that it will promptly provide all information, 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 accounts necessary to perform the Services. Any delays may delay the Services and may incur additional charges.
10.2 Compliance with Laws
The Client acknowledges and agrees that it will not by receiving or requesting the Services:
- breach any Applicable Laws, rules and regulations (including any applicable privacy laws); or
- 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, the Agency may:
- terminate this Agreement; and
- invoice the Client for any part or parts of the Services already performed and any Services currently in progress.
11. variations AND AMENDMENTS
11.1 Should the Client require amendments to the scope of the Services as agreed in a Quote, then the Client may request the Agency provide such amendments, and the Agency may accept or reject such request at its sole discretion. If the Agency accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by the Agency at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these scope changes.
11.2 The Agency reserves the right to make changes to the Services which are necessary to comply with Applicable Laws, government agency requests or safety requirements.
11.3 The Client is solely liable for the payment of any additional Services outside of the scope that is agreed upon in the Quote.
12.1 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 the parties; and
- the Agency is free to provide its services to third parties during the Term.
13.1 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 employees.
14. REPRESENTATIONS AND WARRANTIES
14.1 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 adversely affects this Agreement; and
- it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this Agreement.
14.2 Each party will immediately notify the other party if any of the foregoing representations and warranties cease to be true during the term of the Agreement
- 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 risk.
- Without limiting clause 15.1 the Client acknowledges and agrees that:
- whilst every effort is made to ensure any Information provided by the Agency is accurate, the Agency makes no representations 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;
- 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 should make 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;
- all Information provided as part of the Services is an opinion only, based on the Agency’s experience;
- the Agency does not provide any guarantee of results or any particular outcome; and
- the Agency makes no warranty 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.
15.2 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 a temporary 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 the assets of the Client,
and the Agency will not be liable for any Loss suffered by the Client arising from such circumstances.
15.3 Data Backup
The Agency is not responsible for providing any data backup services and makes no guarantees that there will be no loss or corruption of Client Data at any time. Unfortunately, data loss happens and the Agency will not liable for any Loss the Client suffers in the event that Client Data is lost, for example if the Client’s website is hacked and is deleted.
15.4 Data Security
The Agency will maintain appropriate technical and organisational measures to protect the security of the Client Data. The Agency does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data.
This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement.
16.1 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 expenses suffered 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 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, or is attributable to the acts or omissions of the Client or the Client’s Personnel;
c. any claim made against the Agency or the Client by a third party that the use of the Client Data or any of the Client’s Pre-existing IP Rights by the Agency infringes any third party rights (including intellectual property rights or confidentiality rights);
d. the enforcement of this Agreement; and
e. any act, omission or wilful misconduct of the Client or the Client’s Personnel (including any negligent act or omission).
16.2 It is not necessary for the Agency to incur expense or make payment before enforcing a right of indemnity under this clause).
16.3 The Client must make payments under this clause:
- in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
- in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
16.4 The indemnities in this clause:
- are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination 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.
17. exclusion and limitation of liability
17.1 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 law.
17.2 Subject to the other terms of this clause, the Agency’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by the Agency of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual fees paid by the Client to the Agency under this Agreement in the 1-month period preceding the matter or event giving rise to the claim.
17.3 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 in relation 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 services.
17.4 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 resupply.
17.5 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 Agreement.
17.6 Notwithstanding anything else in this clause, the Agency’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client or the Client’s Personnel.
17.7 The Agency will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty 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.
17.8 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 Agreement.
18. CANCELLATION & termination
18.1 The Agency may cancel all or part of any order to which this Agreement applies or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Agency shall repay to the Client any money paid by the Client for the Services which are cancelled. The Agency shall not be liable for any Loss or damage whatsoever arising from such cancellation.
18.2 The Agency may in its absolute discretion, by written notice to the Client, immediately terminate this Agreement or one or more Quotes (and shall have no liability for any Loss suffered by the Client due to the termination):
- if the Client fails to make payment of any amount due under this Agreement on time or otherwise in accordance with this Agreement;
- if the Client suffers an Insolvency Event;
- if the Client breaches this Agreement or a Quote and fails to rectify the breach within 7 days of being given a notice to do so; or
- in the event of Force Majeure (such as if there are issues with the weather and the Agency is unable to supply the agreed Services, however the Agency is not bound to terminate if this occurs).
18.3 The Client may not cancel the Services at any time except where expressly permitted by this Agreement.
18.4 The Client may terminate this Agreement if the Agency breaches the terms of this Agreement and fails to rectify the breach within 14 days of being given a notice to do so. The Client may not otherwise terminate this Agreement.
19. Consequences of termination
19.1 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 payable but not due), and the Agency may invoice the Client with respect to the Services performed up to the date of termination but not yet invoiced and such invoice shall be payable immediately on receipt; and
- no refunds of amounts paid in respect of the period post termination or expiry will be provided.
19.2 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 expiry.
19.3 The termination of a Quote does not affect any other Quote/s which shall continue.
20.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the recipient by the other party, its representatives or advisers), this Agreement or during the provision of the Services, 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 stock exchange or other document with statutory content requirements, 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 the disclosure;
- where the disclosure is expressly permitted under this Agreement or is required to give effect to the performance of the Services;
- if disclosure is made to its Personnel to the extent necessary to enable the Recipient 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 disclose the information to any other person;
- where the disclosure is required for use in legal proceedings regarding this Agreement or the provision of the Services; or
- if the party to whom the information relates has consented in writing before the disclosure.
20.2 Each Recipient must ensure that its Personnel comply in all respects with the Recipient’s obligations under this clause.
20.3 This clause survives termination or expiry of this Agreement.
21 IntelLectual Property
21.1 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.
- 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 of providing the Services.
21.2 Contract Materials
- The Client acknowledges that the Agency will retain all rights, title and interest (including all Intellectual Property Rights) which subsist in or which may be obtained from the Contract Materials, whether such property is tangible or is in the nature of industrial and intellectual property rights, which will be the absolute property of the Agency on and from their creation.
- Subject to the payment of the fees and to the extent that the Agency owns the Contract Materials that it creates specifically for the Client, the Agency grants to the Client a limited, non-exclusive, revocable, non-transferable, non-sublicensable nor assignable licence to use the Intellectual Property Rights in such Contract Materials solely to the extent required to benefit from the Services.
21.3 Client Data
The Client 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.
21.4 Client Warranties
The Contractor warrants that:
- it owns, or has the necessary rights, interest and licences to its Pre-existing IP Rights and Client Data to the extent necessary to give effect to this clause; and
- use of any Pre-existing IP Rights and Client Data by the Agency will not infringe any Intellectual Property Rights (or any other others whatsoever) of any third party nor give rise to any liability to make royalty or other payments to any third party.
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 code in providing the Services, and the owner of such other property retains all copyright and ownership in that property. In that case, the Agency grants the Client a non-exclusive licence to use the other property to obtain the full benefit of the Services;
- the Agency may develop other websites, design and assets that have a similar look and feel to any deliverables delivered through the Services, 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;
- 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 comply with all such licence terms and will be solely liable for all obligations thereunder.
This clause survives termination of this Agreement.
22. Force majeure
22.1 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 Event.
22.2 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 delay.
22.3 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 obligations.
22.4 Subject to the other terms of this clause, the performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
Words used in this clause 23 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
- Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive 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 by the 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) multiplied by 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 upon the 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.
24. no assignment
24.1 The Client must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of the Agency, which may be granted or withheld by the Agency in its sole, absolute and unfettered discretion. The Client must provide any information the Agency requires to consider whether to grant its consent.
24.2 The Client acknowledges and agrees that the Agency may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Client.
25.1 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 other.
25.2 The following shall constitute proof of receipt:
- proof by posting by registered post; or
- proof of dispatch by email.
25.3 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.
25.4 If a notice is sent via post, it must also be sent via email.
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
26.2 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 the extent set out in that waiver.
- Words or conduct referred to in clause 26.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
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 of execution 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 are 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 severable terms or not.
- Clause 26.5(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.
26.6 No Merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge 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 or expiry.
26.8 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
26.9 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.
26.10 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.
26.11 Entire Agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
26.12 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.