For the provision of Services by Wired Marketing Group Pty Ltd ACN 605 335 886 trading as Media Booth Australia (we/us/our).
These Engagement Terms (Terms) and our proposal documentation (Proposal) form the basis of our agreement with you (collectively the Agreement) and are our offer of Services to you.
You accept our offer if you:
- sign and return the Proposal; or
- continue to request (either orally or in writing) that we perform work for you after receiving the Proposal.
- Our Proposal may take different forms and may also be made up of separate parts, which are to be taken as joined and to form one single document.
- Where our Proposal specifies a ‘scoping’ component, we reserve the right to unilaterally vary our Proposal (acting reasonably) as a consequence of findings made during the scoping process.
- You must tell us immediately if you disagree with anything contained in our Proposal or if you think we have misunderstood your requirements.
- If there is any inconsistency between these Terms and the Proposal, the Proposal will prevail to the extent of that inconsistency.
- Either party may request variations to the Services at any time. If both parties agree to the variation in writing, then the Proposal will be deemed to be updated to reflect the change and will vary the Agreement.
- We may also reasonably update the Proposal where any of our Assumptions are proven to be incorrect.
4. Contract administrator
You must assign a contract administrator to manage your receipt of the Services and ongoing dealings with us. You agree that the contract administrator has your authority to make decisions regarding the Services and this Agreement on your behalf.
5.1 Provision of Services
- We will provide our Services in:
- a professional manner with due care, skill and diligence; and
- in accordance with these Terms and as set out in the Proposal, including completing work components in order of their ranked priority.
5.2 Your responsibilities
- To enable us to properly perform the Services in accordance with this Agreement, you must promptly provide us with all reasonable:
- information, assistance, data, resources, records, materials or access; and
- access to Personnel within you’re your organization that we need to interact with.
- You acknowledge that the Proposal assumes that:
- the information you provide to us will be accurate, complete and not misleading; and
- (ii) you will comply with your obligations under (a).
- You must ensure that we are permitted to use any third-party information or IPR’s that you provide to us for use in the provision of our Services.
- Our Delivery Plan is an estimate only and you agree that we are not liable for any delay in or change to it. We will take reasonable steps to mitigate and minimise delay on our part and the impact such delay may cause.
- If we become aware of any delay (or likely delay) in delivery, we will endeavor to promptly notify you of the details of the delay and provide you with a revised Delivery Plan.
- If you fail to adhere to any due dates or otherwise protract our delivery of the Services through your conduct, any additional costs incurred by us will be your responsibility.
7. Engagement of third parties
7.1 We may engage third parties
We may in our sole discretion subcontract any part of our Services to a third party without notice to you and without your consent.
7.2 Our engagement of third parties
We will use our best endeavours to ensure that third parties that we engage in the performance of the Services:
- are competent and professional;
- are bound by the intellectual property and confidentiality provisions of this Agreement or otherwise to provisions equivalent in effect;
- have the qualifications and/or experience necessary to ensure full and proper performance of the duties allocated to them; and
- do not breach or cause us to breach any of our obligations under this Agreement.
8. Third party software
- As part of our Services we may recommend, install, implement, train and/or support third party software solutions (Software).
- You acknowledge and agree that:
- you have had an opportunity to obtain, read and understand the license terms and conditions relating to your use of any such Software (Software License);
- you are solely responsible for:
- your compliance with the Software License; and
- all fees and costs relating to your access and use of the Software; and
- we will not be responsible for any Loss that you suffer as a consequence of interruptions or malfunctions with the Software.
9. Intellectual property
9.1 Intellectual property rights
Unless otherwise specified in the Proposal:
- each party retains all right, title and interest in and to its pre-existing IPR’s;
- we own all IPR’s in the Project Materials and the Deliverables;
- we are not under any obligation to provide you with the Project Materials;
- subject to paragraph (f), we grant you a non-exclusive, transferrable, sublicensable, royalty free license to use and exploit the IPRs in the Deliverables and the Project Materials strictly for the purpose set out in the Proposal;
- nothing in these Terms prohibits us from using or licensing our IPR’s in the Project Materials or Deliverables to third parties; and
- you agree that you must not:
- use the Project Materials or Deliverables in a manner inconsistent with our reasonable usage guidelines;
- allow or engage any third party to conduct software development work on any of the Project Materials or the Deliverables without first obtaining our written consent, which we may withhold in our sole discretion; and
- subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any software forming part of the Services that we provide to you.
9.2 No trade mark guarantee
- We will use our best efforts when providing our Services to ensure that the Deliverables do not use, incorporate or reproduce the intellectual property rights of a third party. However, we do not provide any guarantee, representation or warranty that the works are unique or that the works do not infringe the trade mark rights of a third party.
- To the greatest extent permissible by law, we disclaim and will not be held liable or responsible for any Loss suffered by you as a result of a Deliverable infringing any third party trade mark rights.
9.3 Protecting the works
- We will not be involved in providing you with any advice or recommendations with respect to relevant intellectual property protections that you may have available to you. We strongly recommend that you obtain legal advice from a specialist intellectual property law firm.
You acknowledge and agree that you:
- take full and complete responsibility for determining what intellectual property protections you have available to you; and
- release us and hold us harmless from any claim, loss, damage, liability, cost or expense suffered as a consequence of you failing to properly undertake investigations of your available intellectual property rights or take all actions available to you to protect your rights following the completion of our works.
10. Fees, charges and payments
10.1 Initial commencement fee
We may require you to make payment of a fee (deposit) before we initially commence with the provision of our Services (Initial Commencement Fee). The Initial Commencement Fee will be applied by us to Services rendered, following the issue of our invoice/s to you.
10.2 Hourly rates
Services we provide on a time basis, or work required outside of the scope set out in our Proposal, will be charged in accordance with our hourly charge out rates as specified in our Proposal. All work conducted on a time basis will be charged in a minimum of 15 minute blocks.
10.3 Fixed fee
Services we provide on a fixed fee basis will be provided strictly in accordance with the scope detailed in our Proposal as reasonably determined by us in our sole discretion.
10.4 Additional work
Any additional work that has not been specifically quoted will be charged in accordance with sub-clause 10.2. Subject to a varied proposal being agreed to under clause 6, additional work that is considered by us to be new work (does not relate to the original scope), unless we otherwise agree, will amount to a minimum charge of 1 hour.
- 1.1 Expenses
Any costs and reasonable out-of-pocket expenses which are necessary to provide our Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you regarding the incurring of the Expense. We will submit documentation and evidence as is reasonably required by you to verify the Expenses that have been incurred.
We will invoice you for the Service Fees and Expenses in accordance with our Proposal or where unspecified, each calendar month that we provide Services.
- You must pay us all amounts outlined in our invoice in the manner reasonably nominated without set-off, counter-claim, holding or deduction.
- Subject to clause 10.7, if you fail to pay any of our fees in accordance with sub-clause (a), we may charge you:
- for all costs and expenses incurred by us in recovering our outstanding fees from you; and
- compound interest at a rate of 10% per annum on the overdue amount which will begin accruing on the first day that payment is overdue.
10.7 Disputed fee
- If you dispute the whole or any portion of the amount claimed in an invoice, you must pay the portion of the invoice which is not in dispute (in accordance with sub-clause 10.6) and provide notice to us within 7 days of receipt of the invoice your reasons for dispute (Invoice Notice).
- Upon receipt of your Invoice Notice, we will within a reasonable time provide you with evidence substantiating the Service Fees and Expenses and addressing your reasons of dispute.
- If the dispute cannot be resolved within 7 days of our substantiation under sub-clause (b), the dispute must be referred to the dispute resolution procedure in clause 12.
- Unless otherwise expressly stated in our Proposal or these Terms, all amounts
- If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST. That amount is equal to the value of the supply calculated in accordance with the A New Tax System (Goods and services Tax) Act 1999 (Cth) multiplied by the prevailing GST rate.
11. Confidentiality, privacy and data security
11.1 Recipient must keep Confidential Information confidential
Each party must:
- keep confidential all Confidential Information;
- only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
- procure that its Personnel comply with sub-clauses (a) and (b).
11.2 Disclosure exceptions
The obligations in sub-clause 11.1 do not apply:
- to the extent necessary to enable a party to make any disclosure required by law;
- to the extent necessary to enable a party to perform its obligations under this Agreement;
- where disclosure is required for any quality assurance or insurance purposes;
- to the extent necessary to receive professional (legal or financial) advice;
- to any disclosure agreed in writing between the parties; or
- in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
11.3 of client’s details
You agree that we may publish your branding on our website or other advertising medium representing you as our client for the purposes of advancing our own publicity, provided we comply with the confidentiality obligations contained in sub clauses 11.1 and 11.2.
- (a) comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws; and
- (b) not do any act, engage in any practice, or omit to do any act or engage in any practice that would cause you to breach any Australian privacy law.
11.5 Use of Client Material
You grant us a licence to use the Client Material for the purpose of us providing the Services under this Agreement, including the right to use, reproduce, modify and create derivative works of the Client Material for that purpose.
11.6 Data security requirements:
If we deal with any of the Client Material, we must:
- comply with those policies relating to data security you have provided to us along with any reasonable requirements you make from time to time;
- take reasonable steps to restore any Client Material that is lost, destroyed, corrupted or altered by us in connection with the provision of the Services;
- comply with any reasonable direction from you with respect to remedying or addressing any loss or unauthorised use or access to your Client Material;
- inform and co-operate with you in the event of any risk regarding the security of your Client Material; and
- comply with any reasonable additional data security requirements set out in the Proposal.
- If a dispute (Dispute) arises between the parties to this Agreement which they cannot resolve, then the party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute (Dispute Notice).
- During the period of 10 business days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties must meet in good faith in an attempt to resolve the Dispute.
- If the parties cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, they must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. The parties must participate in the mediation in good faith.
- The mediator must be agreed on by the parties within 10 business days after the Dispute Notice is given to the parties and if they cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.
- The mediation concludes when:
- all the parties agree in writing on a resolution of the Dispute; or
- a party, not earlier than 20 business days after appointment of the mediator, has given 5 business days’ notice to the other parties and to the mediator, terminating the mediation, and that 5 business days has expired without all the parties agreeing in writing on a resolution of the issue.
13. Limitation of liability
- Unless otherwise required by law, our liability for any Loss arising from any breach of this Agreement or any issue with the Services or Deliverables we have provided, in contract, tort or equity are limited to the amount that you have paid to us under this Agreement.
- We are not responsible for rectifying any malfunctions or issues with any Project Materials or Deliverables or a part of the Project Materials or Deliverables following the expiration of this Agreement.
- To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising in connection with this Agreement even if we were appraised of the likelihood of such loss or damage occurring.
- Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the cost of having the Services supplied again.
- We will not be liable for any part of our Services or Deliverables that are conditional upon Assumptions where further information or events result in those Assumptions being incorrect.
14.1 Your indemnity
Loss that may be incurred by us arising from or in connection with:
- any breach or default by you of this Agreement;
- a negligent act or omission by you or by a party you are responsible for;
- your failure to comply with any law;
- any Claim made against us by any third party in connection with the information or documents that you have provided to us; or
- the failure of a party you are responsible for in complying with any law or the stipulations of this Agreement.
To the extent that any Claim or Loss occurs as a result of any negligent act or omission caused by us, or our failure to comply with material obligations of this Agreement, your liability under clause 14.1 will be proportionately reduced.
15. Term and termination
15.1 Duration of Agreement
This Agreement commences on the date of your acceptance under of this Agreement under clause 1 and continues until all Services and Deliverables specified in the Proposal are completed and all payments owed to us are received.
15.2 Termination for breach
- If either party breaches any of these Terms and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 5 business days (Breach Notice).
- If a breach has not been rectified within 5 business days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
- If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this engagement immediately by notice in writing to the party in breach.
15.3 Consequences of termination
- Following termination you must:
- promptly pay all Expenses that have been incurred by us to date in accordance with clause 10.1 and all outstanding Service Fees in accordance with clause 10.6 that are not subject to dispute under clause 10.7; and
- return or delete all of our Confidential Information that has been provided to you during the provision of our Services.
- Following termination we must:
- refund you the balance of any money that you have paid in advance, once we have set-off all of our outstanding Service Fees and Expenses; and
- return or delete all of your Confidential Information that has been provided during the provision of our Services, except for one copy where required for quality assurance or insurance purposes.
Any notice given under or in connection with this engagement:
- must be in legible writing and in English;
- must be addressed to a party’s contact address as shown on the Proposal or as otherwise notified by a party to the other party from time to time;
- must be:
- delivered to that party’s address;
- sent by pre-paid mail to that party’s address; or
- sent by email to that party’s email address; and
- will be deemed to be received by the addressee:
- if delivered by hand, at the time of delivery;
- if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or
- if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
17. General matters
In interpreting this document:
- headings are for convenience only and will not affect interpretation of this Agreement;
- words in the singular include the plural and words in the plural include singular, according to the requirements of the context;
- a reference to legislation or other law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them
- a reference to any of the words “include”, “includes” and “including” is read as if followed by the words “without limitation”; and
- terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Corporations Act 2001 have the meaning given in that Act, unless the context otherwise requires.
17.2 No guarantee of results
- You acknowledge:
- that the ultimate success of digital advertising is subject to assessment criteria internally created by search engine providers and social media platforms which they regularly and erratically alter and for the most part refrain from disclosing.
- and agree that:
- our historical successes are not necessarily representative of our future outcomes; and
- we do not make any representations or guarantees in respect of the outcomes or results you are likely to achieve from our direct or indirect digital advertising Services, including search engine optimisation and social media advertising.
During the Term of this Agreement and for a period of 12 months after its expiration, neither party will solicit, interfere with or endeavour to entice away any employees or customers of the other party or counsel, procure or assist any person to do those things.
17.4 Survival and essential terms
- Clauses 8, 9.2, 11, 12, 13, 14, 15.3, 17.2, 17.6 and 17.11 and are taken to survive this Agreement.
- Clauses 5, 9.2 and 11 are essential terms of this Agreement.
Any amendments to these Terms must be made in writing or if agreed verbally between us, must be confirmed in writing within a reasonable time after such verbal agreement.
- Subject to clause 17.5(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
- You agree that if we merge or amalgamate with another entity or otherwise sell or dispose of our business, we may assign or novate this Agreement, including all materials, personal information, confidential information and ideas supplied by you, to that other entity, provided that entity agrees to be bound by the stipulations in this Agreement or to stipulations equivalent in effect.
17.7 Further assurances
Each party must promptly do all further acts and execute and deliver all further documentation reasonably requested by the other party to give effect to the contemplations of this Agreement.
Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under these Terms. To be effective any consent under these Terms must be in writing.
17.9 Force majeure
A party will not be liable for any failure or delay in the performance of its obligations under the Agreement to the extent that such failure or delay:
- is caused by a circumstance not within the reasonable control of the party; and
- could not have been reasonably avoided, prevented or circumvented by the party.
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.
This engagement is governed by the law in force in the State of Queensland and each of us submit to the non-exclusive jurisdiction of the courts of Queensland.
Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which will remain in force.
18. Personal responsibility
In consideration of our provision of Services, each person who accepts this Agreement acknowledges and agrees:
- that they are jointly and severally liable for the payment of our fees along with all other Expenses relating to our performing of the Services as if they were the engaging party named in our Proposal and referred to in these Terms; and
- to indemnify us for any loss we suffer because the party engaging us does not pay our fees for any reason.
You acknowledge that:
- you have read, understood and have agreed to be bound by these Terms and the Agreement;
- you have received and will retain your own copies of these Terms and our Proposal;
- you have been informed by us that you should seek independent advice in relation to these Terms prior to accepting offer of Services; and
- by entering into this Agreement under clause 1, you agree that you either:
- obtained legal advice in relation to this Agreement; or
- were afforded ample opportunity to obtain advice but declined.
- Any person that accepts this Agreement on your behalf, represents and warrants to us that they are duly authorised by you to accept this Agreement on your behalf and their acceptance on your behalf is effective to legally bind you to this Agreement.
In these Terms the following definitions apply:
- any qualifications or suppositions detailed relating to the Services or Deliverables set out in the Proposal; and
- the expectations we have relied upon as set out in clause 5.2(b).
Client Material means all data, information and material you own or receive under license which you provide or make available to us in connection with the provision of our Services.
Confidential Information means information that is by its nature confidential and:
- is designated by a party as confidential;
- is described in the Proposal as confidential; or
- a party knows or ought to know is confidential,
but does not include information that:
- is or becomes generally available in the public domain, other than through any breach of confidence;
- is rightfully received from a third person other than as a result of a breach of confidence; or
- has been independently developed by a party without using any Confidential Information of the other.
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.
Copyright Act means the Copyright Act 1968 (Cth).
Claim includes, in relation to a person, a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Deliverable means Project Materials created or provided by us in the course of, or as a consequence of, providing the Services and includes each item that is identified as a deliverable in the Proposal.
Delivery Plan means the timetable for the delivery of the Services outlined in the Proposal.
IPR’s means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets together with any documentation relating to those rights but does not include moral rights.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Personnel means employees, agents and contractors.
Project Materials means any methodologies, tools, ideas, processes, documents (including working proofs), diagrams, graphics, plans, instructions, drawings, reports, software code, know-how, training materials and instructions created or adapted by us during the course of providing the Services.
Proposal means the document we have provided to you specifying in detail the Services, Deliverables, Delivery Plan and Service Fees.
Services mean all services we are proposing to provide as set out in our Proposal.
Service Fees means our fees for the provision of our Services.