By placing an order on our website app.nobs.link you agree to be bound by the following terms and conditions
TERMS AND CONDITIONS
LONG FORM SERVICES AGREEMENT
This Agreement is between
Agency 101 Australia Pty Ltd (ACN 603 880 986) trading as NO BS Agency (“we”, “us”, “our” and “NO BS Agency”),
The party identified in the Proposal (“you”, “your” and “the Client”)
1. DEFINITION AND INTERPRETATION
Additional Fees means any fees and charges imposed by us for Additional Tasks.
Additional Tasks has the meaning set out in clause 2.5.
Agreement means this Services Agreement.
Commencement Date has the meaning stated in clause 10.1.
Confidential Information means all statements, contracts or agreements, specifications, drawings, reports, documents, technology, knowledge, know-how and information relating to your business and any information relating to its advertising requirements (regardless of form) disclosed to or generated by us at any time either in contemplation of or otherwise in connection with this Agreement and either before or after the date of this Agreement. Reference to Confidential Information includes a reference to any parts of the Confidential Information.
Copyright includes copyright and rights of a like nature throughout the world (including any renewals and extensions of copyright where available).
Corporations Act means the Corporations Act 2001 (Cth).
Costs means the cost to you of us providing a Service or engaging a Supplier for the provision of a Service, including fees charged to us.
Early Termination Fee means a fee of 50% of the balance of the fee for the Services which at the date of early termination are incomplete which may be charged by NO BS Agency at its sole discretion upon the early termination of this Agreement by you and is, a genuine pre-estimate of NO BS Agency’s loss suffered as a result of such early termination.
Facilities means working space, computer equipment, access to the internet and your computer network, telecommunications system etc., and shall include not only access to such resources but also use of them to the extent required by us in order to perform the Services.
Fee means the fee for the provision of the Services and payment schedule as set out in the Proposal or as otherwise agreed between the Parties in writing from time to time.
GST has the meaning given by the GST Law.
GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means Copyright and neighbouring rights, all rights conferred by statute, common law or equity in or in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, and confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but excludes any non-assignable moral rights and similar non-assignable rights of any person.
Law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, order, rule or subordinate legislation.
Margin Scheme has the meaning given by the GST Law.
Material means any material containing or relating in any way to any Confidential Information and includes all documents, notes, memoranda, reports, models, computer media, prototypes and other materials supplied to you by us.
Matter means any matter or other thing produced by, on behalf of, or at our direction, for your benefit, in the course of us providing the Services, but excludes Material.
Parties means the parties to this Agreement.
Permitted Purpose means the purpose of providing the Services to you in accordance with this Agreement.
Pre-existing Matter means any original literary, dramatic, musical and artistic works, sound recordings and cinematograph films, and any other Intellectual Property Rights including but not limited to content, designs, documents, reports, information, data software, software tools and software development/design methodologies created by us, which were created (other than on your behalf) prior to the Commencement Date and used to complete but/or separate from the Services under this Agreement.
Proposal means a proposal for production of Services prepared by us in response to your request for provision of Services containing details of:
a) the tasks comprised in the proposed Services;
b) the Costs (itemised for each task) including all charges, taxes and other levies relating to supply of the Services; and
c) a condition that by signing the Proposal, you also agree to this Agreement.
Scope of Works means the specifications and the deliverables for the Services provided to the Client.
Services means the work to be carried out by us during the Term as set out in the Scope of Works and any other service agreed in writing to be undertaken between the Parties from time to time.
Software means any software, application, website or program specifically created for you and developed by us as part of the Services.
Supplier means any third party which provides services to you or us in connection with or arising from this Agreement including, but not limited to Amazon who we engage to serve and host websites, Google Adwords, internet search engine providers and any other third parties engaged by us to provide various support services from time to time to assist us in providing the Services to you or engaged by you directly to provide ancillary support services.,
Taxable Supply has the meaning given by the GST Law excluding the reference to section 84-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and (except where expressly agreed otherwise) excluding a supply in respect of which the supplier chooses to apply the Margin Scheme in working out the amount of GST on that supply.
Tax Invoice has the meaning given by the GST Law.
Term means the period stated in clause 10.1.
Third Party means our officers, employees, financial, legal advisers and subcontractors to whom we may disclose the Confidential Information under clause 6.1.
This Agreement will be interpreted in a way so as to give effect to the common intentions of the Parties to enter into an agreement in good faith.
2. SCOPE OF THIS AGREEMENT
2.1. Your rights not exclusive
Nothing in this Agreement limits our rights to provide Services to any other party. We are not required to notify you if we propose to provide any services to any third party in relation to the promotion or advertising of that third party’s activities or business which are in competition with your activities or business.
2.2. Provision of Services
Subject to clause 2.3, this Agreement cover all Services requested by you from us during the Term.
2.3. Your Proposal
The Proposal forms part of this Agreement. In the event of any inconsistency between the Proposal and this Agreement, this Agreement shall prevail and have priority to the extent of that inconsistency.
2.4. Standard and Scope of Services
We will use our best endeavours to:
a) provide the Services with all the skill, care and diligence to be expected from a qualified, competent and experienced provider of the services of a similar scope and complexity as the Services;
b) ensure that the Services are carried out by our employees or agents who are properly trained, experienced and accredited to perform those Services;
c) use our best endeavours to ensure Suppliers perform their obligations to us in connection with this Agreement, including preventing any loss you may incur through the failure of Suppliers to perform their obligations properly;
d) act in your best interests in connection with this Agreement; and
e) provide the Services in a timely and efficient manner.
The Services to be provided by you are more particularly set out in the Scope of Works.
If either Party requires any changes during the Term to the Services, including but not limited to any work or services required by us as a result of any modifications made to your website by you or a third party, or we require more time, materials or resources to complete the elements of the Services (“Additional Tasks”), such changes will occur as follows:
a) the Party requesting the changes will notify the other Party in writing of any changes it requires;
b) following notification by either Party, we will provide you with written notice of:
i. the changes to the Scope of Works (including any consequential changes to the Proposal);
ii. the Additional Tasks; and
iii. the Additional Fees.
This Agreement will be considered varied to include such changes as set out in the notice provided by us pursuant to this clause.
3. PERFORMANCE OBLIGATIONS
3.1. Our Obligations
We will deliver the Services in accordance with this Agreement.
3.2. Your Obligations
During the performance of the Services, you must:
a) co-operate with us as we reasonably require;
b) provide the information and documentation that we reasonably require;
c) on request make available to us such Facilities as we reasonably require;
d) ensure that your staff and agents co-operate with and assist us;
e) ensure that:
i. the use by us or any person authorised by us of any Material will not infringe the rights (including Intellectual Property Rights) of any person or give rise to any obligation on our behalf (or any person authorised by us) to pay compensation or royalty to any person; and
ii. the information and Material provided by you to us are accurate and true,
f) not charge for our use of the Facilities made available by you;
g) only accept and utilize and publicise the Services once you are satisfied that any websites or applications arising from or the subject of the Services are satisfactory and fit for purpose; and
h) ensure that you read, acknowledge and accept the terms and conditions of any third-party subcontractors or any Suppliers engaged directly by you or by us on your behalf to support or assist in providing the Services.
4.1. Payment obligations
Unless determined otherwise in accordance with this Agreement, you must pay us the Fee for the Services.
4.2. Terms of payment
a) Unless otherwise specified in this clause or unless otherwise agreed in writing, all amounts due under this Agreement are payable by you upfront before we commence the Services.
b) Notwithstanding clause 4.2(a):
i. in the event that the Services are provided to you under a monthly retainer in excess of $1,000 per month, payment must be made by way of direct debit. Your monthly retainer will be debited on a monthly basis. Direct debit is an automatic monthly deduction that will be maintained unless you provide authorisation to us to cancel the direct debit. In the event that your direct debit is dishonored by your financial institution, we will recover any outstanding balances together with any administration fees on the next direct debit date.
ii. In the event that the Services provided to you are on account of any project work, we will require a 50% non-refundable upfront deposit before we commence the Services with a remaining 50% to be payable on the agreed completion of the Services for the project.
We will be entitled to charge interest on overdue payments at the rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic). Interest is to be calculated daily from the due date, continues until the overdue money is paid and is capitalized monthly.
5. INTELLECTUAL PROPERTY
5.1. Intellectual Property Rights
We own all Intellectual Property Rights existing or which may hereafter exist in any Matter subject to any third party licence agreements to which we are a party.
5.2. Assignment of intellectual property
a) We will not assign to you any right, title and interest (including Copyright and other Intellectual Property Rights existing or which may hereafter exist in any Matter) until all amounts due to us from you are paid in accordance with this Agreement. This means that we will have a lien over any service, products, data or information performed, created or obtained during the provision of the Services. If you have not paid the invoice(s) in full within 2 months from the date of the invoice(s) you agree that you will forfeit your rights.
b) The rights to fonts, photographs, graphics and any third-party items such as source code supplied to support the Services, always remain the property of their respective owners. If you wish to obtain the ownership or license of any photographs, graphics and any third-party items, then you must contact the respective owners directly. We will provide contact details on request.
c) The Intellectual Property Rights in any Pre-Existing Matter do not vest in you and there is no assignment of the Intellectual Property Rights in any Pre-Existing Matter.
d) You grant us an irrevocable non-exclusive and non-transferable license to use Matter in our promotional material including, but not limited to, the right to add a footer link to all websites created by us.
e) You grant us an irrevocable non-exclusive and non-transferable licence to use Matter for the purpose of applying for and entering into industry awards.
5.3. Pre-existing Matter
Where any Pre-existing Matter is incorporated into the Matter and to the extent necessary,
a) We will identify to you the Pre-existing Matter that has been incorporated into the Matter; and
b) You acknowledge that, notwithstanding clause 5.2, rights in Pre-existing Matter are not assigned by this Agreement.
6.1. Maintenance of confidentiality and use of Confidential Information
Except as permitted by this Agreement, or, in any other case, on receiving your prior consent, we will:
a) hold the Confidential Information in strict confidence and keep it secret;
b) not use any Confidential Information except for the Permitted Purpose;
c) not disclose, or permit or cause to be disclosed any Confidential Information to any person unless:
i. that person is a Third Party; and
ii. the disclosure to that Third Party is solely for the Permitted Purpose.
6.2. Exclusions from certain obligations of confidence and restriction on use
Clause 6.1 does not apply to:
a) information after it becomes generally available to the public other than because of a breach of this Agreement or of any obligation of confidence by us;
b) the disclosure of information in order to comply with any applicable Law or legally binding order of any court, government, semi-government authority or administrative or judicial body or the applicable rules of any stock exchange; or
c) information after we receive it from a third person legally entitled to possess the information and provide it to us, to the extent that if that information is used, disclosed or otherwise dealt with in accordance with the rights or permission lawfully granted to us by that third person.
7. ASSIGNMENT AND SUBCONTRACTING
You may not assign or transfer any of your rights or obligations under this Agreement without our prior written consent.
a) Subject to paragraph (b), we may subcontract tasks to third party service providers.
b) Notwithstanding paragraph (a),
i. We may indicate in any Proposal at our sole direction the detail of any subcontracting required to be undertaken to assist us in completing the Services. We will not subcontract tasks other than in accordance with that detail (without prior written approval by you);
ii. We are not responsible and liable for the acts and omissions of any subcontractor that is subcontracted in relation to this Agreement; and
iii. You may be required to make any payment to any subcontractor for any Service provided by that subcontractor.
8.1. It is agreed that the unless expressly stated otherwise, all payments, reimbursements, consideration or other sums payable under this contract are exclusive of GST.
8.2. If GST is payable by a supplier on any taxable supply made under this contract, the recipient will pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as the payment, reimbursement, consideration or other sum is payable for the taxable supply.
8.3. This clause 8 will continue to apply after expiration of this Agreement.
If you are in default of this Agreement:
a) we may at our sole and absolute discretion suspend the provision of Services, vary and/or cancel or terminate this Agreement without prejudice to our rights contained in this Agreement; and
b) without prejudice to any other right or remedy you shall indemnify us against any costs, fees, charges and disbursements charged by any legal advisors engaged for the purpose of the collection or recovery of monies due and payable by you to us on a full indemnity basis and all such costs shall be recoverable by us as a liquidated debt.
10. TERM AND TERMINATION
The term of this Agreement commences on the date you sign the Proposal and, subject to project work, shall continue until terminated by providing 30 days written notice or in accordance with clause 10.2. In the event that the Services provided to you are on account of any project work, the term of this Agreement shall continue until the project has been completed and the payment obligations contained in clause 4 of this Agreement are fully satisfied.
10.2. Termination by either Party
a) Either Party may terminate this Agreement immediately by notice to the other Party if:
i. the other Party commits a material breach of this Agreement which is incapable of being remedied or, if the breach is capable of being remedied, the other Party fails to remedy the breach within seven days after being required in writing to do so;
ii. the other Party becomes insolvent, enters into an arrangement or composition with its creditors, is placed in receivership or under management or becomes subject to a winding-up order of a court.
b) In the event this Agreement is terminated for any reason other than as set out in Clause 10.2(a), you must obtain our prior written consent which will not be unreasonably withheld.
10.3. Your obligations in the event of Termination
Upon termination of this Agreement in accordance with this clause, we are entitled to receive payment from you for Services provided up to the date of termination as reasonably agreed between you and us. For avoidance of doubt, your payment to us upon an event of termination will include the full costs, hours, resources, disbursements and other related costs in relation to the performance of the Services up to the date of early termination as notified by the terminating party in accordance with clause 10.2 plus the Early Termination Fee. You acknowledge that the Early Termination Fee is a reasonable and genuine pre-estimate of our liquidated damages arising as a result of such early termination. Termination of this Agreement does not affect any accrued rights or remedies of either Party.
11. DELIVERY, TITLE AND RISK OF LOSS
11.1. We will use reasonable efforts to provide the Service by any agreed delivery dates or schedules set out in the Scope of Works, but we reserve the right to refuse, cancel or delay provision of any part of the Service if:
a) your credit is impaired; or
b) you are in arrears in payments to us or fail to meet other credit or financial requirements reasonably required by us; or
c) you have otherwise failed to perform your obligations under this Agreement.
11.2. Once you have accepted the Service as required under clause 3.2 and communicated your acceptance of the Service, the risk of the use of any product, software, application or website developed as part of the Service is at your sole risk.
12. LIMITATION OF LIABILITY, RELEASE AND INDEMNITY
12.1. Release and Indemnity
You indemnify us and each member of our staff or agents from and against any liability or claim arising directly or indirectly in relation to:
a) the accuracy of all information provided by you to us in relation to the Services or any other matters;
b) your breach of this Agreement;
c) your negligence or wilful misconduct or any member of your staff or agents;
d) us delivering the Services in accordance with your instructions; and
e) you and any member of your staff or agents purporting to cancel any Proposal.
12.2. Limitation of Liability
You acknowledge and agree that:
a) Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
b) In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, including and without limitation to your forfeiture of rights contained in clause 5.2 of this Agreement.
c) Our performance of the Services is dependant of your timely and effective performance of your obligations under this Agreement. In no event shall we be liable to you if our failure to provide the Services in the manner required in the Scope of Works is caused directly or indirectly by any act or omission of you, any third party, any Supplier or by reason of an event of force majeure.
d) We will not be liable to you for any interference with the Services or any adverse search rankings of your website caused by a fault in your equipment or software or any third party’s equipment or software, or by your modification, usage or configuration of the Software.
e) We have no control and will not be liable for any work undertaken by Suppliers and/or any other third parties engaged by you. You are required, pursuant to clause 3.2(h) to accept the terms and conditions of any Suppliers engaged directly by you or by us on your behalf and any disputes and issues must be handled in accordance with the respective third party/Suppliers’ terms and conditions.
f) Without limited the foregoing, we shall not be liable for internet search engine providers. In particular:
i. we have no control over the policies of internet search engines with respect to the type of sites and/or consent that they accept now or in the future;
ii. your website(s) may be excluded from any directory at any time at the sole discretion of the search engines or directories.
iii. we do not guarantee listing, positions or ranking on search engines for any webpage in relation to any particular keyword, phrase or search term.
iv. we will not be liable for any delays by search engine providers to list and rank websites;
v. search engines may stop accepting submissions for an indefinite period of time and we have no control over this;
vi. search engines may re-rank or exclude websites and webpages at their absolute discretion.
g) We have no control over third party’s removing links and content or removing, deleting or changing their website.
h) Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. We do not sponsor or endorse any advertiser or advertised product or service. We shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
i) The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13.1. Each party represents and warrants that:
a) at the date of this Agreement, it has full corporate power to enter into and give effect to this Agreement and to complete the transactions contemplated by this Agreement; and
b) it is solvent and able to perform all of the obligations arising under this Agreement.
13.2. You represent and warrant that you own or are licenced to use the data, software, images and any other content produced in the Scope of Works and that our use of such content in performing the Services will not infringe the Intellectual Property rights of any third party.
14. DISPUTE RESOLUTION
14.1. The Parties agree that, in the event of any dispute arising out of or in relation to this Agreement, both Parties must use their best endeavours to resolve the dispute within 14 days of one Party having notified the other of the existence of the dispute. In the event that a dispute between the Parties remains unresolved after 14 days, the Parties may escalate the matter to senior management of both organisations.
14.2. In the event that the dispute remains unresolved within 3 weeks after the discussions between senior management, the Parties may refer the matter to an independent person for mediation.
14.3. Mediation must be conducted in Melbourne and each Party is equally liable for the costs of mediation and each Party must pay for their own costs of attending the mediation.
14.4. Nothing contained in this clause 14 must be read to limit the right of either Party to initiate legal proceedings at any time.
We may give any written notice to you in connection with, or as required by this Agreement, by sending the notice to you via email, post or fax or as indicated in the Proposal in any of these ways of notice is deemed to be effective. You must notify us in writing of any change to the address you have specified in the Proposal.
You may give any written notice to us to you in connection with, or as required by this Agreement, by sending the notice to:
PO Box 567, Drysdale, Victoria 3222
15.2. No waiver
No failure to exercise nor delay in exercising any right, power, or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or future exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
15.3. No partnership
Nothing in this Agreement must be interpreted as constituting:
a) the relationship of the Parties as a partnership, quasi-partnership, association or any other relationship in which one of the Parties may (except as specifically provided for in this Agreement) be liable generally for the acts or omissions of the other Party; or
b) either Party as the agent or representative of the other Party.
15.4. No merger
The rights and obligations of the Parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
15.5. Governing law and jurisdiction
This Agreement is governed by the Laws of Victoria. Each Party submits to the jurisdiction of courts exercising jurisdiction there, and waives any right to claim that those courts are an inconvenient forum.
15.6. Force Majeure
Neither party shall have any liability under or 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.
15.7. Entire agreement
This Agreement including the Proposal contains the whole agreement between the Parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.