BACKGROUND
Acceptance of a proposal and/or quote provided by DigiProfits, trading as Clark Media (ABN 13581465878) constitutes agreement to the following.
The Client requires the services, as described in this Agreement (hereinafter “the Services”) to be provided.
The Client wishes to hire an independent contractor to provide the Services to the Client.
The Service Provider has the necessary skills, qualifications and experience to provide the Services to the Client.
The Service Provider agrees to provide the Services to the Client on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Service Provider and the Client hereby agree as follows:
1. DEFINITIONS
“ACL” means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth)
“Agreement” means this Service Agreement
“Agreement Date” means the specified contract period or billing cycle.
“Claims” means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise
“Client” means The Client
“Confidential Information” has the meaning described in the “Confidential Information” clause of this Agreement
“Fees” means fees paid by the Client to the Service Provider in accordance with this Agreement
“GST” means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law
“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)
“Intellectual Property” includes but is not limited to processes, business systems, business know-how, trade secrets, moral rights, goodwill, registered designs, copyrights, patents, trademarks, trade dress, industrial design, trade names or other similar rights, or rights to apply for any of these rights
“Losses” means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever
“Party” means either the Client or the Service Provider
“Parties” means the Client and the Service Provider collectively
“Receiving Party” in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly)
“Service Provider” means DigiProfits, trading as Clark Media (ABN 13581465878)
“Services” means the services to be provided by the Service Provider to the client, the specific description of which is as described in this Agreement
“Supplying Party” in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly)
“Termination Date” means the earlier of the date that this Agreement is terminated by the Client or the Service Provider, or the date of expiry of this Agreement
2. INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
a. Words referring to one gender include every other gender.
b. Words referring to a singular number include the plural, and words referring to a plural include the singular.
c. Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
d. Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
e. Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
f. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
3. SERVICES
a. In consideration for the Client paying the Fees, and subject to the provisions of this Agreement, the Service Provider hereby agrees to provide the Client with the services as described in:
Accepted proposals and/or quotes
4. LOCATION OF SERVICES
The Services may be performed at a location as agreed between the Parties.
5. TERM
a. The term of this Agreement (“the Term”) will commence on the Agreement Date and will continue until the Services have been completed, or such other time as provided in this Agreement.
b. The Term may be extended by written agreement of the Parties.
6. PERFORMANCE OF SERVICES
a. The Services may be performed by the Service Provider personally, or by any employees, agents or subcontractors as chosen by the Service Provider in the Service Provider’s sole discretion.
b. The Service Provider may not use any persons to perform the Services except for those persons expressly permitted by this clause, or except for any other persons expressly permitted in writing by the Client.
c. The Service Provider is solely responsible for any payments to the Service Provider’s employees, agents, subcontractors or affiliates in relation to the provision of the Services under this Agreement, including any payments due for salary, wages, annual leave, sick leave, long service leave, superannuation and any other amounts to which the Service Provider’s employees, agents, subcontractors or affiliates may be entitled in relation to the provision of the Services under this Agreement.
d. The Service Provider is solely responsible for ensuring compliance with any legislation which applies to the Service Provider’s employees, agents, subcontractors or affiliates.
7. INSURANCE
a. The Service Provider must obtain all relevant insurance policies (“the Insurance Policies”), including but not limited to:
I. all those insurance policies required by law;
b. Upon the request of the Client, the Service Provider must provide to the Client a copy of the Insurance Policies.
8. NATURE OF RELATIONSHIP
a. Nothing in this Agreement constitutes an employment relationship between the Client and the Service Provider or between the Client and the Service Provider’s workers (such as the employees, agents or subcontractors of the Service Provider). No relationship of employer and employee is created by this Agreement.
b. Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Client and the Service Provider except for the contractual relationship which is provided in this Agreement.
c. The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Client as a contractor and not as an employee, partner, joint venture partner, agent or otherwise.
9. CURRENCY
Unless otherwise specifically provided, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).
10. FEES
a. In consideration for the Service Provider providing the Services in accordance with this Agreement, the Client agrees to pay fees to the Service Provider (“Fees”) as follows:
As outlined in accepted proposals and/or quotes.
b. the Parties acknowledge that the Fees are exclusive of any Goods and Services Tax (“GST”) that may be charged by the Service Provider and therefore that the Service Provider will be entitled to add GST to the Fees.
11. MATERIALS, COSTS AND DISBURSEMENTS
The Service Provider is not entitled to charge, and the Client will not be liable for, any additional costs such as costs for materials or disbursements, on top of the Fees which have been set out in this Agreement.
12. INVOICING
a. The Service Provider must provide the Client with a tax invoice in accordance with the GST Law in relation to the Fees.
b. The Service Provider will be entitled to invoice the Client: monthly
c. Once the Service Provider provides a valid invoice in relation to the Fees (“the Invoice”), the Client must make payment by the due date for payment as specified in the Invoice.
d. If The Client’s advertising account with Meta (or any other platform in use) is deactivated or restricted for any reason, The Provider will work with The Client to reinstate it and/or find the best possible solution. In this instance, the deactivation or restriction of The Client’s advertising account does not affect the continuation of the Service Agreement Term and all invoices are still payable.
13. LATE PAYMENT OF INVOICE
a. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may charge interest on any amounts outstanding, at the rate of: 7.5% per month
b. Any discounts offered and included on the Invoice will be forfeited if the Client does not make payment by the due date for payment as specified in the Invoice.
c. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may refrain from providing any further Services (including pausing hosted content), or any other work for the Client or any other services to the Client (even if that work or those services are dealt with under a separate service agreement) until the Invoice has been paid in full. In this instance, the Service Agreement and Term still stand and all invoices are still payable.
14. CLIENT OBLIGATIONS
The Client:
a. must, at the Client’s own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and making available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services.
b. must ensure that the Client’s employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as reasonably required by the Service Provider, in accordance with this clause.
c. will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider.
15. RETURN OF PROPERTY
a. Upon the termination, expiration or completion of this Agreement, each Party will promptly return to the other Party (“the Second Party”) respectively any property, documentation, records or confidential information which is the property of the Second Party.
b. In the event that the Client terminates this Agreement prior to completion of the Services:
I. the Service Provider will be entitled to attend the location or locations where the Services were undertaken strictly in order to recover any materials and/or equipment which are the property of the Service Provider; or
II. if agreed between the Parties, the Client may retain the Service Provider’s materials and/or equipment but must compensate the Service Provider for the said materials and/or equipment in an amount as agreed between the Parties.
16. CONFIDENTIAL INFORMATION
a. Each Party (“the Receiving Party”) shall keep the confidential information of the other Party (“the Supplying Party”) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party’s obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party’s obligations under the provisions of this clause, and must ensure that the Receiving Party’s officers, employees and agents meet those obligations.
b. For the purpose of this Agreement, “Confidential Information” means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
I. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
II. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
III. any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
IV. any information derived from any other information which falls within this definition of Confidential Information;
V. any copy of any Confidential Information; and
VI. the fact that discussions are taking place between the Parties
but does not include information which:
I. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
II. is, or becomes, publicly available, through no fault of the Receiving Party;
III. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
IV. is provided to the Receiving Party by the Supplying Party and is marked “Non Confidential”; or
V. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
c. If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
d. This clause will survive the termination, expiration or completion of this Agreement.
17. INTELLECTUAL PROPERTY
a. In connection with the provision of the Services, the Service Provider may generate, create, write or produce intellectual property (“Created IP”), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, websites, web functions, code, artwork, or any other intellectual property as required in order to provide the Services to the Client.
b. Unless otherwise agreed between the Parties, any intellectual property rights in any Created IP generated by the Service Provider in connection with the provision of the Services to the Client shall belong to the Service Provider.
c. Unless otherwise agreed between the Parties, the Service Provider shall provide to the Client a non-transferable, worldwide, revocable, non-exclusive licence (without a right of sub-licence) to use any Created IP generated by the Service Provider in connection with the provision of the Services to the Client.
d. Unless otherwise agreed between the Parties, any intellectual property rights in any intellectual property provided by the Client to the Service Provider in order to assist in the provision of the Services, shall belong to the Client.
e. This clause will survive the termination, expiration or completion of this Agreement.
18. QUALITY OF SERVICES
a. The Service Provider must perform the Services using reasonable care and skill for a Service Provider in its field.
b. The Service Provider must ensure that any end products or materials given by the Service Provider to the Client under the terms and conditions of this Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.
c. This clause will survive the termination, expiration or completion of this Agreement.
19. LIMITATION OF LIABILITY
a. The Client may have certain rights under the Australian Consumer Law (“ACL”), or under other similar or related consumer protection laws.
b. The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of services by the Service Provider, which cannot be excluded, modified or restricted by the Service Provider (“Statutory Rights”).
c. The Service Provider’s liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.
d. To the maximum extent permitted by law, the Service Provider excludes all conditions and warranties implied by custom, law or statute, except for the Client’s Statutory Rights, and the Service Provider expressly disclaims all warranties of any kind.
e. The Client hereby agrees that the Client is solely responsible for determining whether the Services are fit for the Client’s purpose.
f. Except in cases of death or personal injury caused by a Party’s negligence, that Party’s liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, liability shall be limited to Fees paid by the Client to the Service Provider.
g. To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.
h. When the Client’s Statutory Rights apply, to the maximum extent possible, the Service Provider’s liability in respect of any claim is limited to, at the Service Provider’s option:
I. the supply of the Services again; or
II. the payment of the cost of having the Services supplied again.
i. The Service Provider’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
j. This clause will survive termination, expiration or completion of this Agreement.
20. INDEMNITY
a. Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, each Party, (which for the purposes of this clause shall be referred to as the “Indemnifying Party” as the context requires) hereby respectively indemnifies, keeps indemnified, and holds harmless the other Party, as well as any of the other Party’s employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
I. any act or omission of the Indemnifying Party in connection with this Agreement; or
II. any act or omission of any of the Indemnifying Party’s employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement; or
III. the Services or anything provided under this Agreement; or
IV. the relationship between the Service Provider and the Client.
b. The Indemnifying Party shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of the other Party or of any of the other Party’s employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
c. This clause will survive termination, expiration or completion of this Agreement.
21. WORKPLACE HEALTH AND SAFETY
a. The Client is committed to providing a workplace to its employees, agents, subcontractors, affiliates or other visitors which is healthy, safe and clean.
b. The Client is committed to creating, motivating and maintaining a positive workplace culture, particularly in relation to workplace health, safety, welfare and wellbeing.
c. The Client’s commitment to workplace health and safety may be reflected and implemented through various standards, procedures, guidelines and/or policies (“WHS Policies”).
d. The Service Provider must, at the Service Provider’s cost, comply with all relevant WHS Policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by the Client or by law.
22. WARRANTIES REGARDING COMPETITION
a. Each Party hereby respectively warrants:
I. That this Agreement does not relate to a contract, arrangement, or understanding, or a concerted practice for the purpose, or with the likely effect, of substantially lessening competition;
II. That this Agreement does not relate to some kind of exclusive dealing between the parties, for the purpose, or with the effect or likely effect, of substantially lessening competition;
III. That this Agreement does not relate to some kind of arrangement involving “price fixing”, whereby competitors have agreed on pricing rather than competing against each other;
IV. That this Agreement does not relate to some kind of arrangement involving “output restrictions”, whereby competitors have agreed to prevent, restrict, or limit the volume or type of particular goods or services available;
V. That this Agreement does not relate to some kind of arrangement involving “market sharing”, whereby competitors have agreed to divide or allocate customers, suppliers, or territories among themselves rather than allowing competitive market forces to work; and
VI. That this Agreement does not relate to some kind of arrangement involving “bid rigging” or “collusive tendering”, whereby competitors have agreed they will not compete genuinely with each other for tenders, allowing one of the competitors to ‘win’ the tender.
b. This clause will survive the termination, expiration or completion of this Agreement.
23. WARRANTIES REGARDING LEGAL ADVICE
a. Each Party, (which for the purposes of this clause shall be referred to as the “Warranting Party” as the context requires) hereby respectively warrants:
I. That the Warranting Party fully understands the terms of this Agreement.
II. That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
A. taken such independent legal advice; or
B. elected not to take such independent legal advice.
III. That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
b. This clause will survive the termination, expiration or completion of this Agreement.
24. COMPLIANCE WITH LAWS
a. The Service Provider must, at the Service Provider’s own cost, comply with all laws which relate to or affect the Services, the Agreement or the Service Provider, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments (“the Laws”).
b. The Service Provider hereby indemnifies, keeps indemnified and holds harmless the Client against any actions, costs, charges, claims or demands in relation to a breach of the Laws.
c. This clause will survive the termination, expiration or completion of this Agreement.
25. ENTIRE AGREEMENT
a. The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
b. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
c. The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.
d. No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.
26. NOTICES
a. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Client if delivered to the following address:
As per agreed proposals and/or quotes, or as listed publicly on the Client’s website.
b. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Service Provider if delivered to the following address:
PO Box 23
Mudgeeraba
QLD 4213
or email [email protected]
c. Either Party (“the Nominating Party”) may nominate another address (“the New Address”) by notifying the other Party in writing of the New Address. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.
27. WRITTEN COMMUNICATION
a. In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
I. such notice is properly given if given to the other Party:
A. by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
B. by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
C. by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
II. such notice is taken to be received:
A. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
B. if sent by facsimile, at the time shown of correct and complete transmission to the recipient’s facsimile number by the sending machine.
C. if sent by prepaid post within Australia, five (5) days after the date of posting.
D. if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.
28. TERMINATION
a. This Agreement may be terminated at any time without notice only by mutual consent of both parties.
b. Either party may terminate this Agreement at any time by giving not fewer than thirty (30) days’ written notice via email or letter.
c. Unless the exception below applies, should the Client terminate the Agreement, they will be liable for a cancellation fee equivalent to 50% of the fees expected for the remaining Term, as well as payment of all work completed by the Service Provider.
d. Unless the exception below applies, should the Service Provider terminate the Agreement, they will be required to refund any funds paid in advance for work that has not been completed.
e. Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.
f. The exception is where either party terminates the Agreement in a situation where:
I. the other Party commits an act of dishonesty or a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not
II. if the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform
III. if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.
IV. the other party has failed to observe or perform any of the terms of this Agreement.
29. ASSIGNMENT
Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.
30. WAIVER
a. The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
b. The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
c. Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.
31. FORCE MAJEURE
a. In the event that circumstances arise which:
I. are outside of the reasonable control of a Party; and
II. materially affect that Party’s performance of its obligations under this Agreement; and
III. could not have been reasonably foreseen or avoided;
(hereinafter “the Circumstances”), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party’s respective obligations under this Agreement.
b. In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
c. Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.
32. APPLICABLE LAW
This Agreement is subject to the laws of Queensland and each Party submits to the jurisdiction of the courts of Queensland.
33. SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.
34. SURVIVAL OF OBLIGATIONS
At the termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.
