Terms & Conditions

These Terms & Conditions and the attached Details Form collectively form a Services Agreement (“Agreement”) between the Agency and the Client.

1. Definitions 

In this Agreement;

2. Client Acknowledgements

The Client acknowledges that;

1. All of the details which appear in the attached Details Form are true and correct, and the Client is authorised to enter into this Agreement and to perform its obligations hereunder.

2. By making payment of the Fees and/or requesting the Agency to provide Services after receiving this Agreement, the Client will be taken to have read and understood the Agreement, and to have agreed to become bound by its terms. 

3. Any advice which the Agency may give is of a general nature only, and it is the Client’s responsibility to assess its suitability and the extent to which it may wish to implement such suggestions as are made.  

4. The primary method of communication between the Client and the Agency will be through Email, Twist and Whatsapp. Neither party shall be responsible for delayed feedback through other channels of communication. 

5. Whilst the Agency will provide the Services in a professional manner, and may provide estimates or projections of the results which may be achieved from the Services, the Agency will not be deemed to have breached this Agreement, will not have any liability for loss or damage incurred by the Client, and will be entitled to all Fees for Services provided notwithstanding the fact that a particular outcome (including but not limited to a certain level of sales) has not been achieved. 

6. The overall results of the Services will be dependent on numerous external factors, including industry trends and what competitor businesses may be doing in terms of marketing, which are beyond the control of the Agency. 

3. Client Responsibilities

The Client acknowledges and agrees that;

1. The Client will provide all such information, details and other assistance as may reasonably be required by the Agency in order to provide the Services, including reviewing and providing timely feedback for all deliverables and questions from the Agency. The Agency will also respond to questions from the Client in a timely manner. Neither party will be responsible for any delays caused by the failure of the other party to communicate in a timely way as referred to in this clause. 

2. The Agency is authorised to incur expenditure in relation to the Services up to and exceeding the Client’s Approved Budget (as referred to in the Details Form) by a margin of no more than 20%. Any expenditure above that amount will require approval in writing from the Client. 

3. The Agency is authorised to make all decisions relating to the performance of the Services  falling within the Scope, subject to any specific parameters which are referred to in the Details Form. 

4. The Client will be consulted at various stages during the provision of the Services, to confirm whether they are satisfied with the Services. It is the Client’s responsibility to raise any concerns which they might have as soon as possible. The Client agrees that the Agency will rely on the Client’s feedback in continuing to provide the Services.

4. Invoicing and Payment

1. The Agency will charge Fees for the Services as set out in the Details Form. 

2. The Client acknowledges the Services to be provided by the Agency shall be limited to those set out in the Details Form as the scope of services to be provided (the “Scope”). If it becomes apparent during the course of providing the Services that additional services will be required outside of the Scope, or if the Client requests any additional services outside of the Scope, the Agency will provide an estimate of the additional fees applying, which estimate may be accepted or declined by the Client. 

3. The Fees shall be paid by the Client in accordance with the payment terms set out in the Details Form, in the currency in which they are invoiced in cleared funds, without any set-off, withholding or deduction.  

4. The Client agrees that if it fails to make any payment due in accordance with this Agreement, the Agency is entitled to;

1. Suspend the provision of Services until all money due is fully paid; and if any money remains outstanding for more than 14 days, then the Agency may terminate the Agreement;

2. Charge interest on all payments outstanding at the rate of 10% per annum, calculated on a daily basis;

3. Recover all costs and expenses incurred in trying to obtain payment of amounts outstanding, including legal costs on an indemnity basis; and

4. Exercise a lien over all work carried out and Materials produced for the Client until full payment of the Fees is received.

5. Term and Termination

1. This Agreement will commence on the date the Agency first issues an invoice to the Client, for a minimum term of 3 months and continuing thereafter on an ongoing basis until terminated.

2. Following the minimum 3 month term, either party may terminate this Agreement by giving 30 days notice in writing to the other (unless both parties agree that a shorter notice period may be given).

3. Upon termination the Client must immediately pay all Fees and other monies owing to the Agency in accordance with this Agreement.

6. Confidential Information

1. For the purpose of this Agreement “Confidential Information” means any information in respect of the business or affairs of the disclosing party, or its customers or agents, that is not in the public domain including, but not limited to, login details and social media account access information, sales information, strategy or planning materials, documents, records, computer files, products and service information, and customer records, and includes Intellectual Property and Intellectual Property Rights.

2. The parties acknowledge that in the process of the Agency providing Services to the Client, each party may have access to Confidential Information of the other party.

3. Each party agrees to take all reasonable steps to ensure that any records of Confidential Information which they hold are secure from any unauthorised use, misuse or disclosure, however cannot guarantee that Confidential Information cannot be accessed by an unauthorised person or that unauthorised disclosure will not occur. 

4. Neither party shall not be liable to the other or to any third party for any loss or damage whatsoever sustained or incurred as a result of any unauthorised access to or disclosure of Confidential Information.

5. The Client agrees that it shall not disclose payment rates, structure, arrangement details or any of the terms of this Agreement to any third party, except its professional advisors or where disclosure is required by law, without the written consent of the Agency. 

7. Non-Exclusivity

The Client acknowledges that the Agency will not be providing Services exclusively to the Client, and that the Agency may also be providing services to other businesses within the same industry, or may commence providing services to one or more businesses within the same industry in the future. The Agency acknowledges that the Client may engage other consultants to perform similar services from time to time, and this Agreement shall not prevent the Client from engaging such consultants. 

8. Non-Solicitation and Interference

1. Neither the Client nor the Agency shall solicit, approach, or hire any of the other party’s employees, agents or subcontractors for the purpose of employment or any form of outside work for so long as this Agreement is in effect and for a period of 1 year after termination, except with written consent of the other party.

2. For so long as this Agreement is in effect and for a period of 1 year after termination, the Agency and the Client further agree not to;

1. directly or indirectly contact any person or entity disclosed by one party to the other for the purpose of taking advantage of a business opportunity;

2. otherwise circumvent a relationship with or establish a relationship with a party with whom the other party already has a relationship or foreseeable relationship with; or 

3. seek to establish any rights, including but not limited to Intellectual Property Rights, anywhere in the world in conflict with the other party’s pre-existing, herein established, or hereafter established intellectual or other property or proprietary rights.

9. Nature of Agreement

Nothing in this Agreement shall be construed to create an employment relationship, partnership or joint venture between the Client and the Agency. The Agency shall be deemed at all times to be an independent contractor to the Client. 

10. Intellectual Property

1. For the purpose of this Agreement “Intellectual Property Rights” means intellectual property rights at any time protected by statute or common law, including without limitation copyright, trademarks, patents and registered designs, methodologies and trade secrets, the right to have Confidential Information kept confidential, and any application or right to apply for registration of any of those rights.

2. It is agreed that in the course of providing the Services, the Agency may create, generate, improve or develop materials which give rise to Intellectual Property Rights. The Client agrees that all Intellectual Property Rights in any way arising out of or in connection with the provision of Services to the Client, are to be dealt with in accordance with this Agreement and this clause in particular.

3. All Intellectual Property Rights are immediately vested in and will remain the property of the Agency absolutely, and may be may be dealt with by the Agency in its absolute discretion without notice to or permission from the Client (this may include using some or all of the Intellectual Property across different mediums or platforms for different purposes from time to time), except that;

1. During the term of this Agreement,, the Agency grants to the Client a licence to use the Intellectual Property Rights limited to the extent necessary to obtain the benefit of the Services;

2. Intellectual Property Rights in the Client’s customer data and any Advertising Accounts which are owned by the Client shall belong to the Client;

3. For any Services which are specifically quoted, created and invoiced to the Client throughout the term of this Agreement, which may include content and web design and development, it may be agreed between the Client and the Agency in writing that the Intellectual Property Rights created in relation thereto, shall belong to the Client. 

The Client’s rights as referred to in paragraphs (a) to (c)  above shall be conditional upon full payment of all Fees owing to the Agency pursuant to this Agreement. 

4. The Client indemnifies the Agency against any losses, claims or damages arising out of or in connection with any breach by the Client of this clause and/or the Agency’s Intellectual Property Rights.

11. Warranties

All warranties and conditions relating to the provision of the Services by the Agency to the Client which may by law be excluded, are expressly excluded. Where such warranties or conditions cannot be excluded, modified or restricted, the Agency’s liability will be limited, at its option, to;

1. Resupplying the Services; or

2. Payment of the reasonable cost of resupplying the Services.

12. Limitation of Liability

1. To the maximum extent permitted by law, the Agency shall not be liable to the Client or any third party under any circumstances for any loss of profit, interruption to business, or for any indirect, incidental or consequential loss and damage sustained or incurred by the Client, whether such liability arises directly or indirectly as a result of or in connection with the provision of Services by the Agency to the Client. 

2. The parties agree that neither party’s liability for damages from any cause of action whatsoever, regardless of the form of action, will exceed the monies which have been received by or ought to have been received by, the Agency in accordance with this Agreement. 

13. No Infringement

The parties represent and warrant that their disclosure and delivery of any code, information, documents, software or any other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, but not limited to: any copyright, patent or trade secret.

14. Performance of Services

The Client acknowledges and agrees that in the course of providing the Services, the Agency may utilise the services, equipment and/or facilities of third parties, including subcontractors, in its discretion.

15. Variation

This Agreement may only be varied by agreement in writing between the parties. 

16. Notices

1. Except as otherwise stated in this Agreement, any notice or communication required or permitted to be given under this Agreement must be in writing and shall be deemed given by the sending party and received by the receiving party when such notice or communication is delivered.

2. For the purposes of Sections 9 and 10 of the Electronic Transactions Act 1999 (Cth) and Sections 8 and 9 of the Electronic Transactions Act 2000 (NSW), the parties consent and agree that any notice or communication required or permitted to be given in writing under this Agreement can be given electronically, provided that it complies with that legislation as applicable.

17. Severance and Waiver

1. If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severed from the Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.

2. Any failure by a party to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorised representative of that party. 

18. Entire Agreement

This Agreement supersedes all prior agreements, arrangements or understandings (whether written or verbal) between the parties with respect to the subject matter of this Agreement.

19. Jurisdiction

This Agreement shall be deemed to have been made in New South Wales and shall be interpreted in accordance with the laws of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, Australia with regard to any suit, action or proceeding arising out of or relating to this Agreement and the provision of the Services.

20. Construction 

The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either party. The parties acknowledge that each party has had an opportunity to review and negotiate on the terms of this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement. 

21. Force Majeure

1. For the purpose of this Agreement “force majeure” means circumstances or occurrences beyond Agency’s reasonable control, whether or not foreseeable at the time of signing this Agreement, in consequence of which Agency cannot reasonably be required to complete the Services or otherwise perform its obligations under this Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics and pandemics, governmental regulations and/or similar acts, embargoes, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
2. In the event of force majeure, the Agency may terminate this Agreement without liability to Client, provided the Agency refunds all amounts which Client has already paid to the Agency for Services not fully performed.