Updated 21st December, 2021

Service Terms & Conditions

These are the Terms and Conditions on which the “Service Provider”, Agora Australia Pty Ltd ACN 655 213 184 will carry out work for you the “Client”. 

These Terms and Conditions will apply each time that the Client asks the Service Provider to deliver services of any nature. 

The Service Provider agrees to provide services to the Client in line with the Terms and Conditions set out here, while the Client is of the opinion that the Service Provider has the proper and necessary qualifications, experience, and abilities to provide the services to the Client. 

It is a condition of the Client’s use of the Service Providers services that the Client complies with these Terms and Conditions.

These Terms and Conditions are subject to change without notice and may be superseded. The Service Provider may modify these Terms and Conditions by general notice on a page of the Service Provider website, by email, or by any other method of communication.

1. Scope of Work

The Service Provider is to provide the Client with the services outlined in the “Scope of Services”, within a documented Services Agreement that the Client must sign or accept via email. Any additional services which are not included in the “Scope of Services” in that document or email will be quoted separately on a case by case basis. Any out of scope work will require approval from the Client before the Service Provider can progress with the work. Once approval is received, the additional cost will be added to the next invoice produced by the Service Provider.

2. Engagement

(a) The Client may engage the Service Provider to carry out the Scope of Services by: 

  • signing and returning a Services Agreement to Service Provider; 
  • or providing an authorised Purchase Order; 
  • or in the case of smaller engagements, by written approval including email.

(b) Unless the Service Provider notifies the Client otherwise, the Service Provider will accept that engagement, subject to these Terms and Conditions. The Scope of Services will commence in line with the agreed upon project schedule, or when the Service Provider accepts the engagement.

3. Proposals

(a) If the Service Provider provides the Client with a Proposal for the Scope of Services, then that Proposal:

  • is based on the Client’s Specifications, and is subject to change if the parties agree to amend the Scope of Services;
  • provides cost estimates that do not include GST; and
  • is valid for a period of 30 days from the date the Proposal is issued, unless otherwise agreed by the Service Provider.

4. Services

(a) The Service Provider offers a variety of marketing and communication related services.

(b) The Client acknowledges that electronic services are subject to interruption and breakdown, and all non electronic services are subject to disruption, and therefore:

  • the Services will not be error-free or uninterrupted; and
  • the Client’s access to the Services and the operation of the Services will not be error-free or uninterrupted.

5. Retainer Agreements

(a) Ongoing services and/or support can be provided on a retainer basis.

(b) Where the Client has engaged the Service Provider on a continuous basis as part of a retainer, the Client must engage the Service Provider for the minimum initial period set out in the Services Agreement.

(c) Unless other terms have been agreed to, full payment is required in advance as per the agreed monthly retainer fee, before any work is undertaken. Work undertaken outside of a retainer agreement will be quoted and invoiced separately, as agreed upon in writing between the Client and the Service Provider.

(d) The Service Provider will use its best endeavours to use the full budget allocated, however if the full amount is not spent by the end of the relevant period, the Client will not be entitled to a refund, nor will the Client be entitled to set off any unspent amounts against any future payments or services unless otherwise agreed.

6. Hours of Service

(a) All Services will be carried out between 8:30am and 5:00pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods.

7. Overtime

(a) All service fees are based on a reasonable time schedule, and may be revised to take into consideration the Client’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 50% markup of our standard hourly rates. Overtime is defined as between 6.00pm – 8.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.

8. Content and Materials Supplied by the Client

(a) The Client must supply all required materials that the Client wants the Service Provider to use in the delivery of the Scope of Services, and all other content and materials that the Service Provider reasonably requests (Client Content) within 48-hours.

(b) The Client must supply all Client Content in the following digital format/s:

  • General text/copy: Microsoft Word or Rich Text (clearly labeled and in correct order);
  • Tables: Microsoft Excel (clearly labeled and in correct order);
  • Product or formatted data: Microsoft Excel (clearly labeled and in correct order);
  • Images: high resolution where possible (JPEG, PNG files);
  • Logos: vector format (Illustrator EPS/AI);
  • Diagrams/maps: vector format (AI) or (JPEG files);
  • If required, access to the Client’s current website and database via SSH, ftp and/or CMS/hosting control panel login;
  • Research, data or analytics applicable to the project;
  • Brand style guidelines (if applicable);
  • Tone of voice guidelines (if applicable);
  • Font files (with proof of licenses, if applicable).

(c) The Service Provider may charge Additional Costs if the Client Content is not provided in the appropriate format, or if material is not supplied when requested.

(d) The Client warrants to the Service Provider that:

  • The Client is authorised to submit the Content to the Service Provider and that the Service Provider is free to use any and all of the Content, and the Client’s name, in the provision of the Services, or otherwise as the Service Provider, acting reasonably, deems appropriate, including for marketing purposes;
  • The Content is true and accurate in all material respects;
  • The Client is not impersonating any person or misrepresenting the Client’s affiliation with any person;
  • The use of the Content by the Service Provider does not constitute a breach of the Intellectual Property of any person;
  • The Content does not compromise the security or operation of our computer systems, through a virus or otherwise; 
  • The Content does not include or contain any information which is, or may be considered to be, illegal, inappropriate or otherwise against the spirit of the provision of the Services, and the Client confirms that the Service Provider may remove or refuse to publish or deal with any Content which the Service Provider, in its sole discretion, considers to be illegal, inappropriate or otherwise against the spirit of the provision of the Services, including, but not limited to, pornographic material, gambling, live video media, live satellite media, phone unlocking or cloning, file sharing or music downloading. Repeated attempts by the Client to provide Content of the type mentioned in this clause 17 (b) may result in the refusal by the Service Provider to provide the Services, without refund, and where appropriate, suspension or closure of any corporate account.

(e) The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that the Client supplies to the Service Provider, or that are supplied to the Service Provider on the Client’s behalf.

9. Variations and Additional Costs

(a) If during the course of the service engagement there is any additional work requested by the Client outside of what was agreed upon in the Services Agreement, this will be treated as a Variation.

(b) Where any Variation occurs, the Service Provider reserves the right to halt work and review the service costs. The Service Provider will discuss the additional work with the Client and where required, will provide either a new Services Agreement, or a summary and quote for the Additional Costs. The Service Provider will not proceed with the Services until the Service Provider receives the Client’s approval to proceed.

(c) Examples of Variations include:

  • The introduction of additional requirements that were not discussed during the onboarding process (i.e. additional deliverables, introduction of video or photography requirements);
  • Costs for commercial fonts, photography, audio and video;
  • Additional service management and/or strategy time;
  • Unplanned delays in obtaining approval from the Client, Client Content, or feedback from the Client, resulting in the Service Provider having to reschedule services, staff, or facilitate continuance;
  • Overtime required to meet deadlines due to delays, caused by the Client not providing approval, Client Content or feedback within the agreed timeframe;
  • Significant changes to Ad Spend.

(d) It is the Service Provider’s process to include service management and strategy time in all quotes, but from time to time the Service Provider is required to not only coordinate its internal team, but also coordinate the Client’s team. This is generally not known at the time of quoting and may be treated as a Variation.

(e) The Client acknowledges that failure of the Client to provide approval to the Service Provider for any additional work, may impact the Service Provider’s ability to deliver the work and/or meet the required deadlines. In which case, the Service Provider will not be held responsible.

(f) Sometimes, Additional Costs can occur throughout the service delivery as a result of unforeseen requirements or changes. These will be raised, quoted and invoiced separately, as agreed upon in writing between the Client and Service Provider.

(g) Examples of Additional Costs include:

  • Content not provided in the appropriate format;
  • Extra workshops or workshops requiring additional hours;
  • Requests from the Client for additional concepts / alterations;
  • Requests from the Client for changes to campaigns after final approval has been requested or provided;
  • Additional training sessions, additional training session attendees. or training at the Client’s premises;
  • Additional meetings and travel time.

10. Purchase of Stock Images, Fonts, Photography, Audio or Video

(a) Unless specified in the Proposal, the Service Fees do not include any searches or purchase of stock images, commercial fonts, photography, audio or video.

(b) The Client can provide stock images, commercial fonts, audio or video, or the Service Provider can purchase them on the Client’s behalf. When any stock images or commercial fonts are purchased on the Client’s behalf, the Service Provider will be the license holder and the image or font can only be used under the terms of the license/s.

(c) The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising out of the breach of these licenses.

(d) Any stock image costs will be confirmed with the Client first, and then added as an additional charge to the invoice.

(e) Costing for any font, photography, audio or video required will be provided for approval separately via a Variation Notice.

(f) Ownership of the finished photography, audio or video will be transferred to the Client upon full payment of all issued invoices.

(g) The Service Provider retains ownership of all working files.

11. Client Approval

(a) Client approval may be required for a number of items (Approval Item) presented to the Client, as part of the service delivery.

(b) When the Service Provider provides the Client with any Approval Item, the Client must notify the Service Provider in writing whether the Client does or does not accept the Approval Item.

(c) The Client will be deemed to have accepted the Approval Item if the Service Provider does not receive a response from the Client within 2 business days.

(d) The Client’s acceptance of the completed Approval Item in accordance with paragraph (b) or (c) means that the Approval Item is complete, and no further amendments are necessary. However, the Service Provider will not proceed to the next Stage of the Project until the Service Provider receives the Client’s approval to proceed.

(e) Unless otherwise agreed, the Service Provider’s processes allow for up to one round of revisions on any deliverables. Any further revisions may incur Additional Costs.

(f) There may be Additional Costs in having to reschedule projects, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shut down and subsequent restart fee commensurate to the labour and resource costs incurred.

12. Scheduling, Production and Project Management

(a) If the Service Provider considers it to be necessary, the Service Provider will develop a production schedule for the Scope of Services. the Service Provider will use reasonable commercial endeavours to carry out the Scope of Services in accordance with that schedule.

(b) If the Client delays in providing approval, Client Content or feedback the Service Provider requires, then this may result in:

  • a change in the delivery deadline set out in the production schedule; or
  • if the delivery deadline cannot be changed, a Variation Notice will be issued, including necessary overtime costs.

13. Marketing Services Terms and Conditions

(a) The Client acknowledges that the Marketing Services provided by Service Provider are not an exact science and that Search Engines, Media Services, Social Media Platforms, Platforms, and providers are constantly changing and evolving, and that the Service Provider has no control over these changes.

(b) The Service Provider will deliver the Marketing Services utilising best practice strategies and up to date techniques, and will make recommendations to best achieve the Client’s goals, but cannot guarantee results.

(c) The Service Provider will endeavour to seek approval from the Client for material prior to publication, but this may not always be possible due to time constraints, deadlines and access to the appropriate authority.

(d) Unless agreed otherwise, Marketing Services and Ad Spend will be invoiced and automatically paid by direct debit at the beginning of each month.

(e) The Service Provider will perform the Marketing Services as specified in the Proposal or as agreed in writing with the Client, utilising the specified providers and/or platforms, for the specified term.

(f) The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising from actions taken performing Marketing Services.

(g) The Service Provider cannot be held liable and accepts no responsibility for being unable to perform the Marketing Services due to lack of client resources or access.

(h) The Service Provider may be required to work alongside another agency or third party provider. The Service Provider cannot be held liable and accepts no responsibility for being unable to perform services due to faults or defects in any service provided by third parties.

(i) The Service Provider reserves the right to charge Additional Costs caused by the Client’s instructions, lack of instructions, interruptions, mistakes, work for which the Service Provider is not responsible, changes to the requirements, expectations or hardware and software environment, and extra work required caused by faults or defects in any service provided by a third party.

14. Design Terms and Conditions

(a) The Service Provider’s design services will include:

  • Delivery to the Client of one design concept (or as specified in the Proposal); and
  • One round of feedback and alterations.

(b) Upon completion of the alterations, the Service Provider will supply an updated version of the design concept to the Client.

(c) If the Client requests additional concepts or alterations, or requests changes to the design after final approval has been requested or provided, the work will incur an Additional Cost.

(d) The work referred to in paragraph (c) does not include a change to the Specifications which will be treated as a Variation.

(e) Ownership of the finished design will be transferred to the Client upon full payment of all issued invoices.

(f) The Service Provider retains ownership of all working files.

(g) A copy of the working files can be requested from the Service Provider. The Service Provider is under no obligation to provide the working files, however at its discretion may provide the working files for a fee.

15. Copywriting Terms and Conditions

(a) The Service Provider’s copywriting services include the presentation of one round of content and one round of alterations for each piece of content.

(b) Ownership of the finished content will be transferred to the Client upon full payment of all issued invoices.

(c) The Service Provider retains ownership of all working files.

16. Third Party Software

(a) The Service Provider may provide Third Party Software as part of the Project. The Client acknowledges that:

  • The Service Provider has limited control over the functionality or operation of the Third Party Software;
  • If the third parties provide data or other information for use with the Software, the Service Provider has no control over the accuracy or completeness of that information;
  • The Client accepts and must comply with the terms and conditions of the Third Party Software providers; and
  • Those Third Party Software providers may invoice the Client directly for ongoing costs relating to the Client’s use of the Software.

(b) The Fees for the Third Party Software may change from time to time. The new prices not supplied directly by the provider will apply from the date that Service Provider notifies the Client.

17. Public Relations Terms and Conditions

(a) While the Service Provider will distribute acceptable Content to various media outlets, the Service Provider makes no guarantee that any Content will be published or in any other way used by any third parties to whom it is sent, and the Service Provider makes no representations or warranties whatsoever in relation to any potential improvement in search engine rankings or similar potential benefits.

18. Ownership of Software, Programs, and Platforms

(a) Certain software, programs, and/or platforms will belong to either the Client or the Service Provider, depending on the requirements. This will be discussed prior to signing the Services Agreement. 

(b) If using the program, VWO, the account will be set up under the Client’s email with an additional user for Service Provider. All billing will be under the Client’s name and the account will belong to the Client. 

(c) All other programs will be on a case-by-case basis as discussed with the Service Provider.

(d) If the Client does not have an existing Facebook Business Manager or Ads Manager account, the Client will need to create one under Service Provider’s instructions.

19. Training Terms and Conditions

(a) The Scope of Services may include training sessions of varying length, content and outcomes. Training sessions will be conducted in one of the Service Provider’s offices or via video conference with no more than 3 attendees.

(b) If additional training sessions are required, or the Client wishes to have additional attendees at a training session, or require training at the Client’s office, there may be an Additional Cost.

20. Software Implementation Services Terms and Conditions

(a) The Service Provider’s software implementation services will be derived from the Proposal and Services Agreement, and the scope of requirements and specifications.

(b) The Service Provider’s software implementation services will be based on the information provided when scoping the project. The Service Provider reserves the right to charge Additional Costs caused by the Client’s lack of instructions, interruptions, mistakes, work for which the Service Provider is not responsible, changes to the requirements or expectations, and extra work required caused by faults or defects in any service or software provided by a third party.

(c)  The Client acknowledges that the Service Provider is free to reuse any custom integrations or custom applications that the Service Provider develops as part of the software implementation project.

(d) Unless otherwise specified in the Services Agreement or as agreed in writing with the Service Provider, the Service Provider retains ownership of the IP of any custom integrations

(e) The Service Provider will take appropriate measures to ensure the privacy and security of the Client’s customer data that is housed within the software program(s) being implemented.

(f) The Client acknowledges that the software and many of its extensions, integrations, and components are provided by third parties, and therefore:

  • The Service Provider has limited control over the functionality or operation of the software program and its integrations, etc.; and
  • The Client accepts and must comply with the terms and conditions of those third parties relating to the software program.

(g) The Client acknowledges that if any third party software or platforms make an update or discontinue operations, that this may cause the Client’s software to break down, be interrupted or not operate at full functionality.

21. Email/SMS Marketing Terms and Conditions

(a) The Service Provider will provide email and/or SMS services utilising an agreed service provider.

(b) The Client will be responsible for the costs associated with engagement of the email and/or SMS service provider.

(c) The Client warrants that in accordance with the Privacy Act 1988 (Cth):

  • The Client has consent from the recipients to receive email messages that will be sent or the message is directly related to the primary purpose for which the customers email accounts was recorded;
  • The email will contain accurate information about the Client that authorised the sending of the message and how they may be contacted;
  • The Client authorises a functional unsubscribe facility to allow the recipient to opt out from receiving future email messages. Any opt out received must be honoured within five (5) business days.

(d) The Client warrants that in accordance with the SPAM Act 2003 (Cth):

  • The Client has consent from the recipients to receive SMS messages that will be sent and is therefore not an unsolicited commercial electronic message as defined by section 6 of the SPAM Act 2003 (Cth) (SPAM Act);
  • The SMS will contain accurate information about the Client that authorised the sending of the message and how they may be contacted;
  • The Client authorises a functional unsubscribe facility to allow the recipient to opt out from receiving future SMS messages. Any opt out received must be honoured within five (5) business days.

22. Social Media Management (SMM) Terms and Conditions

(a) The Client will provide the access to the Client’s social media accounts or permission for the Service Provider to set up accounts on the Client’s behalf.

(b) The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising out of any negative feedback created on social media by third parties.

23. Influencer Marketing Terms and Conditions

(a) Any content created by Influencers that the Client contracts:

  • Remains the influencer’s intellectual property unless otherwise agreed upon in their individual contract with the Client.
  • Must not be redistributed or reproduced in any way other than by organically re-sharing it on the Client’s social profiles with credit to the Influencer, unless otherwise agreed upon in their individual contracts with the Client.

(b) The AIMCO Code of Practice states that all influencer collaborations must have sufficient disclosure statements which clearly describe the Client’s relationship to the Influencer.

(c) An additional contract will be created for every Influencer engaged by the Client, which must be approved by the Client before the Influencer commences work.

(d) The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising the Influencers non-compliance with their contracts

24. Search Engine Optimisation (SEO) Terms and Conditions

(a) The Service Provider requires full access to the Client’s website to be able to perform SEO duties.

(b) The Client acknowledges that the Service Provider has no control over the policies and ranking algorithms of Search Engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any Search Engine or directory at any time, at the sole discretion of the Search Engine or directory.

(c) Due to the competitiveness of some keywords/phrases, ongoing changes in Search Engine ranking algorithms, and other competitive factors, the Service Provider does not guarantee number one (1) positions or consistent top positions for any particular keyword, phrase, or search term.

(d) Search Engines can, at their own discretion, hinder the rankings of new websites (or pages) until the websites (or pages) have proven their viability to exist for more than an undefined amount of time, or have enough backlink strength. The Service Provider assumes no liability for ranking, traffic, or indexing issues related to such penalties. Consequently, the Client understands that achieving rankings for new websites is far more difficult than achieving rankings for existing and established websites.

(e) The Service Provider makes no warranty or guarantee of project timelines or added expenses if the Client’s content or SEO work is destroyed either wholly or in part, either knowingly or unknowingly, by any party other than the Service Provider.

(f) During all website migration projects the Client is to notify the Service Provider of when URLs for the new website are 100% approved and will not change after the fact. 

(g) This confirmation is required a minimum 2 working days before scheduled go-live. If changes are made to the new URL structure after the 301 redirect mapping is supplied, then the Client will pay an additional fee for the Service Provider to re-do the 301 redirect mapping to match the new URL structure.

25. Online Advertising Terms and Conditions

(a) Unless otherwise agreed, the Service Provider will utilise the Client’s professional account/s to engage the appropriate third party provider e.g. Facebook, Google, Bing.

(b) Online Advertising costs (also referred to as Ad Spend) will be decided on a campaign by campaign basis. Ad Spend billing will be set up with the Client’s payment details and billed directly to the Client, unless otherwise agreed in writing.

(c) Actual Ad Spend costs may vary from month to month, depending on the level of activity, campaign requirements, length of the month, and/or agreed goals. The Service Provider will endeavour to ensure that the agreed expenditure is expended during the duration of the term period.

(f) The Client acknowledges that the Service Provider sources suppliers and placements, but the terms and conditions of those placements are governed by the suppliers.

(e) The Client retains ownership of their owned advertising accounts (Facebook, Google, Bing, Unbounce etc), including all campaigns and working files. 

26. Market Research Terms and Conditions

(a) The Service Provider agrees that it shall use reasonable skill and care in providing market research services, and that the deliverables are analysed in accordance with the accepted methods of market and customer research.

(b) The Service Provider does not guarantee that the data correctly collected, processed and analysed by it in accordance with the rules and methods of market and customer research will be able to be used by the Client in a specific commercial way. The Company disclaims all other warranties, either expressed or implied, including warranties for merchantability, and fitness for a particular purpose.

(c) The Service Provider will use all reasonable endeavors to provide the research services, and to deliver any deliverables, in accordance with the estimated timelines set out in the applicable Proposal. However, the Service Provider shall not be liable for any failure to adhere to the quoted timelines or for any loss or damage suffered by the Client, resulting from any delay caused directly or indirectly by any act or omission by the Client and/or by any third party for whom the Service Provider is not contractually responsible hereunder.

(d) Should it emerge after the project has been commissioned that the study cannot be conducted for methodological reasons, which could not have been foreseen by the Client or by the Service Provider, and which are beyond their control, then the Service Provider shall inform the Client of this immediately. If the two parties to the contract are unable to find a methodological solution to the problem, the Service Provider shall be entitled to terminate the project on the grounds of impracticability. 

(e) Unless otherwise specified, the Service Provider’s Fees do not cover Incidental Costs that occur due to the nature of research services. Any Incidental Costs will be confirmed and invoiced to the Client.

(f) Examples of Incidental Costs include:

  • Fees for participant recruitment via a third party research panel;
  • Catering costs;
  • Travel and/or accommodation expenses;
  • Transcription fees;
  • Venue hire for in-person research facilitation.

27. Archiving / Retrieval

(a) The Service Provider will endeavour to store or archive all electronic files used in the production of the Scope of Services. However, the Service Provider provides no guarantee that any stored or archived files can be retrieved in the future.

(b) Once a project is finalised, archiving of the files and database and copies of these files becomes the responsibility of the Client. The Service Provider can at the request of the Client provide this service for an Additional Cost.

28. Disbursements

(a) Disbursement charges are not included in the Fees. If the Service Provider incurs any disbursements or expenses during the course of the Project,  these will be charged to the Client as Additional Costs.

(b) These may include but are not limited to:

  • costs of plugins and themes purchased as part of the Project;
  • consumable material utilised as part of a Project or campaign;
  • one off costs for social media monitoring at events.

29. Warranty Disclaimer

(a) Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.

(b) Subject to the Service Provider’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, the Service Provider expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.

30. Limitation of liability

(a) To the fullest extent permissible by law, the Service Provider is not liable (whether in contract or tort) for:

  • Faults or defects in any services or goods provided by third parties in connection with this Agreement; or
  • Any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not Service Provider knew of the possibility of such loss and whether or not such loss was foreseeable.

(b) To the fullest extent permissible by law, in no event will the Service Provider’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this Agreement exceed the amounts actually paid by the Client to the Service Provider for the Service.

(c) To the fullest extent permitted by law, the liability of the Service Provider for a breach of a non-excludable condition is limited to:

  • In the case of the provision of services:
    • the supplying of the services again; or
    • payment of the cost of having the services supplied again.
  • In relation to goods:
    • the replacement of the goods or the supply of equivalent goods;
    • the payment of the cost of replacing the goods or acquiring equivalent goods; or
    • the repair of the goods or the payment of the cost of having the goods repaired.

31. Indemnity

(a) The Client indemnifies, defends and holds harmless the Service Provider in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:

  • Any breach of this Agreement;
  • The Client’s negligent acts or omissions; or
  • The Client’s use of the Services, including any third party claims made in connection with or arising out of the Clients use of the Service, other than use in accordance with this Agreement.

32. Intellectual Property and Supply of Raw / Editable files

(a) All Intellectual Property Rights in Project Intellectual Property vest in, or will upon their creation vest in the Service Provider.

(b) The Service Provider grants the Client a non-transferable, non-exclusive license to:

  • Publish one copy of the Project and supporting Project Intellectual Property unless otherwise stated by Service Provider; and
  • Use and reproduce the other Project Intellectual Property;
  • Subject to the restrictions set out in paragraph (c).

(c) The Client must not, without the Service Provider’s prior written consent:

  • Adapt, create derivative works from or merge the template or other Project Intellectual Property;
  • Use the Project Intellectual Property for any purpose other than the specific purpose for which the Service Provider has provided it;
  • Reverse engineer, disassemble or decompile the Project Intellectual Property;
  • Distribute, lend, resell, transfer, assign or sublicense the Project or other Project Intellectual Property, or allow any other person to use it except in the course of visiting the Project; or
  • Remove or attempt to remove any proprietary or copyright notices or any labels on the Project or other Project Intellectual Property.
  • These restrictions do not apply in relation to extensions that are licensed to the Client under the terms and conditions referred to in clause 16, or some extensions licensed per domain or via a license key.

(d) The supply of raw / editable files is at the discretion of the Service Provider. Additional Costs will apply, and may be based upon a percentage of the original Proposal, or a retrieval and release fee.

(e) Stock images and commercial fonts remain the property of the Service Provider, under license or its licensors at all times and are governed under licensing restrictions and rules and are not transferable.

(f) The Service Provider does not warrant that the Client’s use of the designs, materials or content produced by the Service Provider for the Client in the course of the Project will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but Service Provider will advise the Client if the Service Provider becomes aware of any infringement.

(g) The Client agrees to allow the Service Provider to use the Services provided, results and Client Data for promotional and portfolio purposes, including case studies.

(h) The Client agrees to provide feedback or a testimony upon request after the release/closure of the Project.

(i) The Service Provider reserves the right to use the Client’s website statistics and results during the Scope of Services within promotional material.

(j) The Client agrees to allow Service Provider to utilise the Client’s website data and statistics without assigning a brand name such as the following statement: “The Service Provider on average has achieved a 40% uplift in conversion rate across all of their clients.” Unless otherwise specified.

(k) The Client agrees to allow the Service Provider to utilise the Client’s website data and statistics on case studies or key statistics to be shared on marketing platforms with the use of the Client’s logo. Unless otherwise specified in writing.

33. Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Proposal. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.

(b) The obligation of confidence in paragraph (a) does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.

(c) The Party required to disclose the other Party’s Confidential Information as set out in paragraph (b) must:

  • Provide a reasonable amount of notice to the other Party of the proposed disclosure;
  • Consult with the other Party as to the form of the disclosure; and
  • Take all reasonable steps to maintain such Confidential Information in confidence.

(d) Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

34. Calculation of Fees if not Specified

(a) If the Fees are not specified (in a Purchase Order, Proposal, Services Agreement, or otherwise) at the commencement of the Project, then the Service Provider will charge the Client at the Professional Hourly Rates for all work that the Service Provider carries out for the Client in the course of the Project.

(b) The Professional Hourly Rates may change from time to time.

(c) Travel time is not included in the Service Provider’s quotations, as the Service Provider office is our preferred location, because it is appropriately set up for meetings and presentations. If the Client would prefer meetings at the Client’s office or any other location, additional fees may apply.

35. Payment Method

(a) The Client must pay the Service Fees and any Additional Costs to the Service Provider within fourteen (14) days of the date on which the Service Provider issues the Client an invoice.

(b) In relation to the Service Provider’s Services, Service Provider may issue invoices for:

  • Payment as indicated in the Proposal, Services Agreement, or estimate;
  • For Additional Costs on an ad hoc basis; and / or
  • A “Work in Progress” or retainer invoice at the beginning of each calendar month.

36. GST

(a) Unless Service Provider expressly states otherwise, the Fees and Additional Costs do not include GST.

(b) If at any time Service Provider decides that GST is payable on supplies made by Service Provider, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.

(c) Service Provider reserves the right to recover from the Client at any time, such an amount on account of GST on supplies made by Service Provider to the Client under this agreement.

37. Duration of Agreement and its Termination

(a) Upon execution by both parties, this agreement will take effect immediately and remain in effect until the purpose of the Scope of Services has been achieved, unless it is terminated earlier under this clause 38.

(b) All retainer service agreements may be terminated with or without cause by either party upon thirty (30) days written notice. All services provided in advance will be charged upon early termination. 100% or partial refund may be provided if the Service Provider has not fulfilled its obligations to deliver the work required under the agreement. 

(c) A party may terminate a project service agreement by notice in writing to the other party upon thirty (30) days written notice, if:

  • The other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within [14] days after receiving notice from the other Party to do so;
  • the other party commits a material breach of this agreement that is not capable of remedy (including a breach of clause 35 or clause 36); or
  • the other Party becomes Insolvent.

(d) The Service Provider may terminate this agreement if:

  • The Client does not provide any information or materials requested within a reasonable time after being asked to do so;
  • The Service Provider considers that mutual confidence and trust no longer exist; or
  • The project is abandoned or lays dormant for more than thirty (30) days, with or without notice.

(e) Upon termination of this agreement under paragraph (b), (c) or (d):

  • The Service Provider’s obligation to carry out the Project ceases;
  • Each party’s rights and obligations accrued prior to termination are not affected;
  • The licence granted in clause 32 (b) ceases;
  • Any unpaid invoice owed to The Service Provider must be paid by the Client;
  • Each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations; and
  • Except as provided in this paragraph (e), clauses 29, 30, 31, 33, 38 and 39 will continue.

38. General

(a) Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.

(b) This agreement does not create a relationship of employment, agency or partnership between the parties.

(c) The Service Provider may subcontract its obligations under this agreement.

(d) The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.

(e) If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.

(f) The additional terms and conditions referred to in clauses 29, 30, 31 and 32 do not apply to the extent that they:

  • are not permitted under Australian law; or
  • exclude or unlawfully limit any applicable Consumer Guarantee or Title Guarantee.

(g) The Service Provider may change this agreement from time to time. The new terms will apply to any Scope of Services that commences after the date that Service Provider publishes the changed terms and conditions. The Client’s engagement of the Service Provider’s Services after that date signifies the Client’s acceptance of the amended agreement.

39. Interpretation

In this agreement:

(a) A reference to “this agreement” means these terms and conditions (including any schedule) together with a Purchase Order, Proposal, or Services Agreement (if any);

(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;

(c) The singular includes the plural and the plural includes the singular;

(d) Words of any gender include all genders;

(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;

(f) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;

(g) A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;

(h) A reference to a party to a document includes that party’s successors and permitted assignees;

(i) A promise on the part of 2 or more persons binds them jointly and severally;

(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and

(k) Specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.

40. Dictionary

Additional Costs means all additional costs that the Service Provider is permitted to charge the Client under this agreement.

 

Approval Item is defined in clause 11(a).

 

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

 

Claim means a demand, action or proceeding of any nature whether actual or threatened.

 

Client, you or your means, in relation to any work that we do for you:

(a) the person named as the Client in the Purchase Order;

(b) if there is no Purchase Order, then the person named as the Client in the Proposal; or

(c) if there is no Proposal, then the person for whom we are undertaking the Project.

 

Client Content is defined in clause 8(b)

 

Confidential Information of a party:

(a) means any information:

  • regarding that party’s business or affairs;
  • regarding that party’s customers, employees, or other people doing business with that party;
  • which is by its nature confidential;
  • which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
  • which the other party knows or ought to know is confidential;

(b) includes without limitation (unless excluded under paragraph (c) that party’s Intellectual Property Rights and these terms and conditions; but

(c) does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).

 

Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2 (1) of the Australian Consumer Law).

 

Marketing Services means Services as described in clauses 13, 14, 15, 19, 20, 21, 22, 23, 24, 25, and 26.

 

Agora, we or us means Agora Australia Pty Ltd ACN 28 603 710 274 of Level 2, 89 McLachlan Street, Fortitude Valley QLD 4006.

 

Fees means, in respect of a Project or Retainer:

(a) the Fees payable to us for the Project or Retainer as set out in a Purchase Order or Services Agreement; or

(b) if no Fees are specified, Fees for all work we do in the course of the Project or Retainer, calculated in accordance with clause 34.

 

GST means a goods and services tax or similar tax levied in Australia.

 

Insolvent in relation to a party, means that:

(a) the party has ceased or taken steps to cease to conduct its business in the normal manner;

(b) the party has entered into or resolved to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;

(c) the party is unable to pay its debts when they are due;

(d) a liquidator or provisional liquidator is appointed to the party, or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the party’s assets or undertakings;

(e) an application or order is made or a resolution is passed for the winding up of the party; or

(f) an event similar to one in paragraphs (a) to (e) occurs in respect of the party in any non-Australian jurisdiction.

 

Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:

(a) copyright, patents, trade marks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and

(b) any application or right to apply for registration of any of the rights referred to in (a).

 

Loss means

(a) any liability, cost, expense, loss, personal injury (including illness), death or damage; and

(b) in relation to a Claim, Loss includes amounts payable on the Claim and (whether or not the Claim is successful), legal costs and disbursements on a full indemnity basis.

 

Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.

 

Project means, in relation to any work that we do for you that has a set start and finish milestone:

(a) the Project described in a Services Agreement;

(b) if there is no Services Agreement, the project described in a Proposal;

(c) if there is no Proposal, then the project described in the Specifications; or

(d) if there are no Specifications, then the work that you have asked us to do.

 

Retainer means, in relation to any work that we do for you that has an ongoing, recurring monthly fee:

(a) the Scope of Services described in a Services Agreement;

(b) if there is no Services Agreement, the Scope of Services described in a Proposal;

(c) if there is no Proposal, then the Scope of Services described in the Specifications; or

(d) if there are no Specifications, then the work that you have asked us to do.

 

Project Intellectual Property means designs, artwork, software and materials provided to you in the course of the Project, and any other Intellectual Property Rights created in the course of the Project, but does not include:

(a) the Content Management System (except to the extent that we have modified it);

(b) the Website Tools (except to the extent that we have modified them); or

(c) Client Content.

 

Purchase Order means a document issued (in writing or electronically) by us to you that sets out:

(a) the Services that we will provided to you;

(b) the estimated times within which those Services will be provided; and

(c) the Fees payable to us for those Services.

 

Proposal means a Proposal or an estimate that we provide to you in respect of any work that you have asked us to do.

 

Schedule of Fees means the rates and packages attached to this document, and any replacement of that professional services schedule released from time to time.

 

Services means the Services that we provide to you in the course of the Project, as described in clause 4.

 

Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Project, or as developed during the discovery and/or creative stages.

 

Support means the services provided to supply paid support services to assist in the management, maintenance, training for an agreed upon service area (for example, HubSpot).

 

Third Party Software means software as described in clause 16..

 

Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.

 

Variation means changes to the Proposal, Specifications as described in clause 9 and elsewhere in this agreement.

 

Variation Notice means the written notification regarding the costs associated with Variations as described in clause 9 and elsewhere in this agreement.