1. Introduction

1.1. Significant Digital Agency PTY LTD ABN 11 622 757 439 (Significant Digital) are a specialist e-commerce & digital marketing agency with expertise in:

1.2. The Client wishes to engage the services of Significant Digital Agency on the terms of this Agreement.

2. Interpretation

2.1 The following definitions apply in this document:

i. Was in the public domain at the time it was given to Significant Digital Agency;

ii. Became part of the public domain, without Significant Digital Agency’s involvement in any way, after being given to Significant Digital Agency;

iii. Was in Significant Digital Agency’s possession when it was given to the Significant Digital Agency, without having been acquired (directly or indirectly) from the Client; or

iv. Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

i Digital Marketing strategy and implementation;

ii The creation and distribution of Promotional Materials;

iii SEO;

iv Web design;

v PPC.

2.2. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

3. Application of this agreement

3.1. This Agreement applies to each Client’s use of the Services provided by Significant Digital Agency.

3.2. Where the Client does not accept the terms and conditions of this Agreement, the User must immediately cease using the Services.

3.3. This Agreement may be updated by Significant Digital Agency at its absolute discretion from time-to-time.

3.4. If the Client does not accept any update to this Agreement, the client may terminate this Agreement and cease using the Services.

4. Services

4.1. Services.

4.2. Exclusivity

The Client shall not engage any third party to provide services in Australia that compete with or are similar to the services provided by Significant Digital Agency during the Term of this Agreement.

5. Relationship

5.1. Significant Digital Agency warrants that it is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.

5.2. Significant Digital Agency will not:

6. Key obligations

Significant Digital Agency will:

7. The Client will:

i Resources, personnel, electronic systems and premises required to provide the Work; and

ii All facilities and materials and information reasonably requested for Significant Digital Agency to do its job;

8. Client approval

8.1. The Client shall notify Significant Digital Agency in writing of any change regarding who is an Authorised Person during the term of this Agreement.

8.2. Significant Digital Agency shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorised Person to provide Approval.

8.3. Approval shall be provided by:
a letter, fax or email from an Authorised Person bearing Approval; or
oral approval by an Authorised Person, either by phone, VOIP or face-to-face.

8.4. After obtaining Approval of a quote or proposal that form part of the Scope, Significant Digital Agency shall submit to the Client for specific Approval as required such draft or proof documents, images or video that require Approval subject to the Scope before dissemination.

8.5. Approval of drafts or proofs shall be taken by Significant Digital Agency as authorisation to proceed.

9. Subcontracting

9.1. Significant Digital Agency may engage such third-parties as are necessary to provide the Works without the Client’s approval.

9.2. Significant Digital Agency shall be responsible for ensuring that all third-party subcontractors comply with Significant Digital Agency’s obligations under this Agreement including those of Confidentiality.

10. Fees and payments

10.1. Fees

i an agreed fixed fee rate (Fixed Fee Rate);

ii an upfront fee; and

iii such other Fees or Expenses in accordance with a specified payment schedule (Diners/AMEX incur a 4.4% fee).

i. To pay an upfront fee for Significant Digital Agency’s commitment to undertake the agreed work;

ii. The Fixed Rate Fee only covers work done within the Scope;

iii. The Client must provide instructions (and all required information and other documents) to Significant Digital Agency within the timeframe(s) specified in the Scope; and

iv. The Fixed Fee Rate does not cover any work done outside of (i) to (iv) (inclusive) above

i. External consultants;

ii. Design, artwork and print;

iii. Direct mail;

iv. Video production;

v. Photography and prints;

vi. Postage and packaging.

10.2. Invoicing & Payment

10.3. Disputed Tax Invoice

10.4. Interest

Significant Digital Agency may charge interest at a rate of 10% per annum, calculated daily, on overdue Tax Invoices.

11. Intellectual property

11.1. Background IP.

i For the purposes of this clause, Significant Digital Agency IP means all Intellectual Property of Significant Digital Agency incorporated in the Services and/or Deliverables.

ii The Client acknowledges that Significant Digital Agency retains ownership of all of Significant Digital Agency IP.

iii Significant Digital Agency grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the Significant Digital Agency IP to the extent that it is contained within the Services and/or Deliverables.

i For the purposes of this clause, Client IP means all Intellectual Property of the Client contained in any information provided to Significant Digital Agency in the course of providing the Services.

ii Significant Digital Agency acknowledges that the Client retains ownership of all of Client IP.

iii The Client grants Significant Digital Agency a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP to the extent that it is contained within the Services and/or Deliverables.

iv The Client grants Significant Digital Agency a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP/Client’s name and logo in Significant Digital Agency marketing or tender documents, unless the Client directs Significant Digital Agency not to.

i For the purposes of this clause Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Works. Such Third-Party IP may be attached to (without limitation) software code; photographs; written material; visual and artistic design; video and film; and audio recordings.

ii Significant Digital Agency shall grant to the Client such rights as the owner of the Third-Party IP permits Significant Digital Agency to grant the Client.

11.2. New IP.

12. Confidentiality

12.1. Confidential Information means any written or verbal information that:

12.2. Significant Digital Agency will keep all Confidential Information in confidence on an ongoing basis in accordance with this Agreement.

12.3. The Confidentiality obligations owed under this Agreement shall survive termination of the Agreement.

12.4. Significant Digital Agency must not:

12.5. Significant Digital Agency may disclose Confidential Information to its personnel (including to third parties engaged by Significant Digital Agency to provide services in connection with the Work) if:

12.6. Subject to clause 12.7, Significant Digital Agency may disclose Confidential Information that Significant Digital Agency is required to disclose by law.

12.7. If Significant Digital Agency is required to make a disclosure under clause 12.6, Significant Digital Agency must:

12.8. The Client and Significant Digital Agency must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information

13. Privacy and direct marketing

13.1. Significant Digital Agency may collect personal information about the Client and its representatives and employees in the course of acting for the Client. This personal information will only be disclosed and used for the purposes of performing the Work, improving Significant Digital Agency’s services and obtaining feedback, or otherwise in accordance with the Client’s instructions.

13.2 The Client consents to Significant Digital Agency’s use of the Client’s contact details to maintain an ongoing professional relationship with the Client and any associated entity, including in order to provide updates, invitations and other communications Significant Digital Agency consider may interest the Client.

13.3. The Client may have rights under the Privacy Act 1988 (Cth) to obtain access to personal information Significant Digital Agency holds.

13.4. The Client may request Significant Digital Agency not to send direct marketing materials by contacting Significant Digital Agency by email.

14. Dispute resolution

14.1. If any dispute arises between the Client and Significant Digital Agency in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

14.2. Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and Significant Digital Agency must meet and seek to resolve the Dispute.

14.3. Subject to clause 14.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

14.4. Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

14.5. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

15. Amendment and assignment

15.1. This Agreement can only be amended, supplemented, replaced or novated by written agreement between the parties.

15.2. Save where expressly set out otherwise, the parties to this Agreement may not assign or otherwise create an interest in their rights under this document without the written consent of each other party.

16. Electronic communication & notices

16.1. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

16.2. The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.

16.3. A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

16.4. Notices must be sent to the parties’ contact details as advised to the other party from time to time

17. Term and termination

17.1. Term. This Agreement shall end when the works have been completed by Significant Digital Agency in the reasonable opinion of the Client, or by earlier termination in accordance with the terms of this Agreement.

17.2. Termination.

18. General

18.1. Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

18.2. Prevalence. To the extent that the Special Conditions are inconsistent with these terms, the Special Conditions will prevail.

18.3. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement

18.4. Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.

18.5. Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

18.6. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

18.7. Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there, in the city of Melbourne.

18.8. Inconsistency. If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

18.9. Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

18.10. Time. Time is of the essence in this Agreement.

18.11. Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

END TERMS OF BUSINESS

(last updated: 01/09/2020)

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