TERMS & CONDITIONS FOR THE PROVISION OF SERVICES
Simple Digital Pty Ltd trading as Better Small Business, ACN 623 771 120 (the “Consultant“) provides certain services as set out in this agreement and the Specification (Consultancy Services). The Consultant is willing to provide the Consultancy Services and Client is willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this agreement.
This agreement consists of:
(a) These Terms and Conditions;
(b) The Specification; and
(c) Any Proposal provided to the Client.
A Client is bound by this agreement if the Client:
(a) Signs or otherwise accepts a Specification or Proposal in writing;
(b) Clicks an “Accept” or similar button provided by the Consultant on its website; or
(c) Makes a payment to the Consultant for the provision of the Consultancy Services
1 – Definitions and interpretation
1.1 – Definitions
In this agreement, unless the context indicates otherwise, the following words have the following meanings:
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Commencement Date means the date set out in the Specification.
Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business. This includes all information, data, drawings, specifications, documentation, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consultant’s Personnel means any person or persons that the Consultant designates to perform the Services on the Consultant’s behalf.
Consultancy Services means the consultancy services to be provided by the Consultant under this agreement as set out in Schedule 1.
Fees means the amount set out in the Specification.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
One-Off Service means the provision of Consultancy Services other than under a Subscription.
Parties means the Consultant and Client, and Party mean either one of them.
Platform means an online platform provided by third parties, including Google and other search engines, which is not the Client’s website or a Social Media Account.
Quarterly Reviews means the review of the Consultancy Services as described in clause 9.
Review means a record of an assessment and critical appraisal of the Client’s products and services.
Social Media Account means any third-party online platform or service that is or can be used by the Client for the purposes of communicating with members of the public in relation to the Client’s business including but not limited to Facebook, Instagram and blogs.
Specification means the details of the Consultancy Services as set out in Schedule 1 and each additional Specification as may be agreed from time to time.
Subscription means ongoing and periodic provision of Consultancy Services by the Consultant to the Client for an agreed period in return for ongoing payments, as set out in Schedule 1.
Termination Date means the earlier of:
(a) the date of termination of this agreement by Client or the Consultant in accordance with this agreement; and
(b) the date of expiry of this agreement.
1.2 – Interpretation
In this agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
(e) reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
(i) the word “including” (and related forms including “includes”) means “including without limitation”.
2 – Consultancy Services
(a) The Consultant will provide the Consultancy Services to Client in consideration for Client paying the Fee to the Consultant, subject to the provisions of this agreement.
(b) The Consultant will provide the Consultancy Services on the dates set out in the Specification.
(c) The Consultant will use reasonable endeavours to complete the Consultancy Services in accordance with the Specification.
(d) The Consultancy Services may be performed by the employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services.
(e) Consultancy Services are provided solely for the benefit of the Client and any products or services, including the Consultant’s pre-existing Intellectual Property, provided in connection with the Consultancy Services shall not be supplied to third parties in whole or in part, assigned, given, hired, lent or resold by the Client.
3 – Exclusivity
(a) Subject to sub-clauses (b) and (c), the Client appoints the Consultant as its exclusive provider of the Consultancy Services and related services, and the Consultant accepts the appointment.
(b) The Consultant may, but need not, accept any request for Consultancy Services from the Client.
(c) If the Consultant elects not to accept a request for Consultancy Services from the Client, then the Client may appoint another provider for the Consultancy Services that were not accepted.
4 – Scope of Consultancy Services
(a) The Consultancy Services may include one or more of the following One-Off or Subscription services:
(i) marketing audits;
(ii) online and email marketing development and implementation;
(iii) online and email advertising development and implementation, including arranging third-party advertising;
(iv) search engine optimisation;
(v) social media marketing;
(vi) public relations;
(vii) loyalty programmes;
(viii) website development and optimisation
(ix) Social Media Account and community management;
(x) analytics implementation;
(xi) online training and software;
(xii) Quarterly Reviews; and
(xiii) any other similar services as agreed between the parties
(b) Where the Consultancy Services include the supply of a Review by a third-party, the Client acknowledges and agrees that:
(i) Reviews are independent and cannot be influenced by the Consultant;
(ii) Reviews may not be positive and may not recommend or promote the Client’s business; and
(iii) Reviews remain the Intellectual Property of the third-party, but the Consultant shall obtain an irrevocable licence for the Client to use the Reviews for the promotion of its business
(c) Where the Consultancy Services include the supply of services by a third-party, the Consultant shall take reasonable steps to ensure that the material and placement of the material is consistent with the Client’s instructions and the Specifications, but the Client acknowledges and agrees that the Consultant cannot warrant or guarantee the exact content of the material or placement thereof by a third-party over whom the Consultant has no control.
(d) Where the Consultancy Services include arranging the purchase of marketing or advertising services from a third-party such as Google, the Client is solely responsible for any costs as between the Client and the third-party provider, and the relationship between the Client and the third-party provide is subject to the third-party’s separate terms and conditions of service.
(e) Where the Consultancy Services include the supply of performance analytics, the Consultant shall provide the services via Google Analytics and Google Adwords.
(f) Where the Consultancy Services are via a Subscription and a suite of services, currently described as “Done For You” services, then the Client acknowledges and agrees that the Consultant has the discretion to allocate resources and provide such specific Consultancy Services it deems necessary in working towards the outcomes agreed between the Parties.
(g) Where the Consultancy Services include a One-Off provision of online training, that online training is of a general nature only and does not take into account the needs and circumstances of any particular Client. While all reasonable effort has been taken to ensure that the content of the online training is accurate, the Consultant does not warrant or represent that the information therein is error-free, up to date or suitable for any purpose.
5 – Location
The Consultant will provide the Consultancy Services in places and locations as determined by the Consultant or as otherwise agreed from time to time. .
6 – Client’s consent and authority
(a) Where necessary for the provision of the Consultancy Services, the Client authorises the Consultant to:
(i) register e-mail addresses, Social Media Accounts, websites and Platform accounts on behalf of the Client;
(ii) access, modify and operate the Client’s e-mail addresses, website, Social Media Accounts, and Platform accounts and all associated content, for the purposes of providing the Consultancy Services;
(iii) conduct all activities on the Client’s website, Social Media Accounts, and Platform accounts for the purposes of providing the Consultancy Services in the Client’s name and on behalf of the Client; and
(iv) engage with third parties to supply Reviews, services or other content
(b) The Client consents to and authorises all material that is transmitted by the Consultant via the e-mail, website, Social Media Accounts and Platform accounts except that the Client does not consent or authorise the Consultant to transmit any material that is illegal.
(c) The Client must supply the Consultant with any relevant policies and procedures that it wishes the Consultant to comply with in the course of the provision of the Consultancy Services.
(d) Where the Consultancy Services are via a Subscription and a suite of services, currently described as “Done For You” services, then the Client consents to and authorises the Consultant to allocate resources and provide such specific Consultancy Services it deems necessary in working towards the outcomes agreed between the Parties.
7 – Fees
7.1 – Payment of Fees
(a) In consideration of the provision of the Consultancy Services in accordance with this agreement, Client will pay the Consultant the Fees.
(b) Client acknowledges that the Fees are exclusive of any GST that may be charged by the Consultant to Client, and therefore, the Consultant will be entitled to add on GST, if applicable.
(c) Subscriptions are payable monthly in advance.
(d) One-Off Services are payable in advance.
(e) Where periodic or instalment payments of the Fee is required by the Schedule, late or non-payment shall entitle the Consultant to suspend or cease providing the Consulting Services until all arrears are paid in full.
7.2 – Invoicing
The Consultant will provide Client with a tax invoice upon completion of the Consultancy Services, in accordance with the GST Law in relation to fees payable under this clause 7.
8 – Risk and Title to materials produced
(a) For One-Off Services, risk passes to the Client on creation of any materials produced in connection with the One-Off Services, and title to the materials (except online course material, for which a personal licence is granted to the Client) passes to the Client upon full payment of the Fees.
(b) For Subscriptions, risk passes to the Client on creation of any materials produced in connection with the Consultancy Services, and title to the materials (except online course material, for which a personal licence is granted to the Client) passes to the Client after 6 monthly payments of the Subscription fee after that material has been delivered to the Client.
(c) Nothing in this clause 8 shall require the Consultant to provide to the Client any better title in materials than is held by the Consultant.
9 – Quarterly Reviews
If the Consultancy Services include Quarterly Reviews, such reviews shall:
(a) be conducted on such dates and times as agreed between the parties;
(b) include information on strategy, performance, Consultant’s recommendations and proposals for Consultancy Services going forward; and
(c) may result in a change to the Consultancy Services or the Fee as agreed between the parties.
10 – Client’s obligations & indemnity
(a) During performance of the Consultancy Services, the Client will:
(i) co-operate with the Consultant as the Consultant reasonably requires;
(ii) provide the information (including login and password information) and documentation that the Consultant reasonably requires;
(iii) permit the Consultant to make such alterations to the Client’s website, Social Media Accounts and content, and Platform accounts and content as required for the provision of the Consultancy Services;
(iv) ensure that the Client’s staff and agents cooperate with and assist the Consultant;
(v) provide such access to the Client’s premises and facilities as may be required for the reasonable provision of the Consultancy Services;
(vi) provide the subject-matter of any Consultancy Services at no charge to the Consultant;
(vii) provide the Consultant with the requirements set out in the Specification or Proposal; and
(viii) secure the right to use any Intellectual Property required to be used by the Consultant in connection with the Consultancy Services;
(ix) review, check and approve all material produced in connection with the Consultancy Services before it is published.
(b) The Client shall, prior to the commencement of the Consultancy Services, inform the Consultant in writing, of legal, regulatory or third-party intellectual property requirements that govern or restrict the use of any material directed to be used or likely to be used in the course of the Consultancy Services. The Client indemnifies the Consultant for any breach of these legal, regulatory or intellectual property requirements.
(c) The Client acknowledges and agrees that any delay or breach of any of its obligations under this agreement will affect the delivery of the Consultancy Services and the Consultant shall not be liable for any loss or damage that occurs as a result.
11 – No employment relationship
(a) Nothing in this agreement constitutes the relationship of employer and employee between Client and the Consultant or between Client and the Consultant’s Personnel.
(b) It is the express intention of the Parties that any such relationships are denied.
12 – Use of third parties and subcontractors
(a) The Consultant is permitted to use other persons to provide some or all of the Consultancy Services..
(b) The Consultant is responsible for the work of any of the Consultant’s subcontractors, but not third party providers of services such as Google and software providers.
(c) Subject to (d), any work undertaken by any of the Consultant’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
13 – Disclosure and ownership of intellectual property
(a) The Consultant must communicate to Client promptly and fully all discoveries, improvements and inventions made or conceived by the Consultant or the Consultant’s Personnel (either solely or jointly with others) in the course of performing the Consultancy Services which are similar to the actual or anticipated business, work or investigations of Client or which result from or are suggested by any work performed for Client (Inventions).
(b) Subject to any other clause in this Agreement, any Inventions in the course of providing the Consultancy Services, whether or not they contain intellectual property rights capable of protection, are and remain the sole and exclusive property of Client or its nominees.
(c) Subject to any other clause in this Agreement, the Consultant acknowledges that Client (or its associated entities or persons) owns all Intellectual Property created by the Consultant in the course of providing the Consultancy Services (but excluding Intellectual Property created by the Consultant prior to the Commencement Date or created outside of providing the Consultancy Services), that now exists or that later comes into existence.
(d) The obligations accepted by the Consultant under this clause 13 survive termination or expiry of this agreement.
14 – Confidentiality
(a) Each party (“Receiving Party”) must keep the other party’s (“Disclosing Party”) Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
(b) The Receiving Party’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by:
(i) The Disclosing Party, in the case of Confidential Information pertaining to Disclosing Party’s business; and
(ii) Disclosing Party’s client, in the case of Confidential Information pertaining to the business of any of the Disclosing Party’s clients.
(c) At the Termination Date, if the contract is not continued, or when earlier directed by the Disclosing Party:
(i) all Confidential Information must be returned to the Disclosing Party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Receiving Party makes and any software that the Receiving Party creates based on the Confidential Information; and
(ii) the Receiving Party will erase and destroy any copies of any software containing or comprising the Confidential Information in the Receiving Party’s possession or under the Receiving Party’s control or that may have been loaded onto a computer possessed or controlled by the Receiving Party.
(d) The Confidential Information does not include information which:
(i) is generally available in the public domain otherwise than as a result of a breach of clause 14(a) by the Receiving Party; or
(ii) was known by the Receiving Party prior to Disclosing Party disclosing the information to the Receiving Party.
(e) The Receiving Party agrees to indemnify Disclosing Party fully against all liabilities, costs and expenses which Disclosing Party may incur as a result of any breach of this clause 14 by the Receiving Party.
(f) The Receiving Party acknowledges that damages may be an inadequate remedy for breach of this clause 14 and that Disclosing Party may obtain injunctive relief against the Receiving Party for any breach of this clause 14.
(g) The obligations accepted by the Receiving Party under this clause 14 survive termination or expiry of this agreement.
15 – Warranties, liability, limitations and indemnities
15.1 – Warranties
(a) The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services to the standard generally accepted within the industry, sector or profession in which the Consultant operates for the type of Consultancy Services provided by the Consultant.
(b) The Consultant shall indemnify and hold harmless Client against any claim made against Client by a third-party alleging that material supplied by the Consultant infringes the copyright of that third-party.
(c) If the Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this agreement including any part of the Specification, then, if requested by Client, the Consultant will re-perform the relevant part of the Consultancy Services.
15.2 – Compliance with all laws
Throughout this agreement the Consultant must comply at the Consultant’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority. The Consultant must indemnify Client from and against all actions, costs, charges, claims and demands in respect thereof.
15.3 – Limitation on liability
(a) Except in the case of death or personal injury caused by the Consultant’s negligence or a breach of clauses 14 or 15, the liability of the Consultant under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise will not exceed the Fees paid by Client to the Consultant under this agreement.
(b) Neither Party is 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 any economic loss or other loss of turnover, profits, business or goodwill.
15.4 – No warranty of success
The Client acknowledges and agrees that notwithstanding any other clause in this Agreement, that:
(a) due to the nature of the Consultancy Services; and
(b) without limiting the generality of (a) above, the Consulting Services are dependent on factors outside its control, including third-party search engines as well as social media platforms, environmental factors such as market conditions, competition, business performance and reputation, customer experience and the Client’s website, and as such, the Consultant cannot and does not provide any warranty, guarantee or representation that the engagement of the Consultant or the provision of the Consultancy Services will result in any commercial improvement or success in connection with the Client’s business.
15.5 – No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
15.6 – ABN/TFN
(a) The Consultant must supply Client with evidence of the Consultant’s ABN/TFN and must include this number on any statement provided to Client.
(b) The Consultant acknowledges that if the Consultant fails to provide an ABN/TFN, then Client is entitled to withhold any proportion of the payments to the Consultant as may be required under the relevant law for tax purposes.
15.7 – Limitation on Consultant’s power
(a) The Consultant warrants that unless set out in the Specification, the Consultant has no authority to engage the services of any person as an employee or agent of Client.
(b) The Consultant warrants that unless set out in the Specification, the Consultant will not incur any liability on behalf of Client or in any way pledge or purport to pledge Client’s credit or accept any other or make any contract binding upon Client without prior approval being given by Client.
15.8 – Survival of obligations
The obligations accepted by the Consultant and Client under this clause 15 survive termination or expiry of this agreement.
16 – Termination
(a) Either Party may terminate this agreement by notice in writing to the other if the Party notified:
(i) fails to observe any term of this agreement; and
(ii) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ notice of the breach being given in writing by the notifying Party to the other Party.
(b) Either Party may terminate this agreement upon the happening of any of the following events:
(i) if the other Party enters into a deed of arrangement or an order is made for it to be wound up;
(ii) if an administrator, receiver or receiver/manager or a liquidator is appointed to the other Party pursuant to the Corporations Act 2001 (Cth); or
(iii) if the other Party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth); or
(iv) if the other Party commits an act of bankruptcy under the Bankruptcy Act 1966 (Cth)
(c) Either party may terminate this agreement with no less than 30 days’ notice, unless otherwise specified in a Subscription.
(d) Upon termination of this agreement any fees, expenses or reimbursements payable by Client to the Consultant in respect of any period prior to the Termination Date must be paid by Client within 28 days after the Termination Date.
17 – General
(a) Any disputes or issues in relation to the Services provided and/or Fees associated with the delivery of those Services must be raised directly to the Consultant.
(b) The Client agrees that before taking any other action under this Agreement, the Consultant will be provided the opportunity, at the Consultant’s discretion, to take all reasonable measures to attempt to resolve the issue, by making adjustments, rectification, or amendments to the services.
(c) The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation before having recourse to arbitration or litigation.
(d) This clause 17.1 shall survive termination of this agreement.
17.2 – Force majeure
(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this agreement by written notice to the other Party.
17.3 – Amendment
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
17.4 – Assignment
Neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
17.5 – Entire agreement & Priority
(a) This agreement (including the Specification and any Proposal) contains the whole agreement between the Parties in respect of the subject matter of the agreement.
(b) The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
(c) In the event of a conflict or inconsistency between these Terms and Conditions, the Specification and any Proposal, the Proposal shall be paramount and shall take priority over the Specification and the Specification shall take priority over these Terms and Conditions.
17.6 – Waiver
(a) No failure or delay by the Consultant in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
17.7 – Agency, partnership etc
(a) This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
17.8 – Further assurance
Each Party to this agreement must, at the request and expense of the other, do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
17.9 – Severance
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
17.10 – Notices
A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by email to the email address of the addressee.
17.11 – No Announcement & Non-Disparagement
(a) This Agreement and its contents shall be considered confidential by the Parties. Neither Party shall make any announcement with respect to the transactions contemplated by this Agreement or any ancillary matter without the prior written approval of the other Party.
(b) Without limiting (a) above, neither party shall make any statement directly or indirectly via its directors, agents, contractors or employees disparaging the other Party. This clause 17.11 shall survive termination.
17.12 – Work, health and safety
The Consultant must comply with all relevant work, health, safety and welfare standards and regulations determined by Client or as prescribed by legislation.
17.13 – Law and jurisdiction
This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of that State.