These Term and Conditions are made on the last date signed by a party
between THE CONSULTANT, Milla Medeiros ABN 27 036 641 911 – trading as Just Marketing & Websites,
(referred to in these Terms and Conditions as “we” or “our” or “THE CONSULTANT”)
and (referred to in these Terms and Conditions as “you” or “THE CUSTOMER”)
and will bind the parties in relation to each Scope of Work and other work performed by the Consultant for the Customer, unless they agree otherwise in writing.
1.1 The Consultant agrees to provide the Services for the Term and in accordance with the relevant Scope of Work and these Terms and Conditions.
1.2 These Terms and Conditions and each Scope of Work signed by the Customer comprises a separate Agreement between the parties.
1.3 During the initial creation stage of any project the Consultant will provide you with regular opportunities to review the appearance, layout and content of projects.
Once all these matters are agreed, the initial stage is completed and thereafter changes will be charged at our hourly rate, unless we agree otherwise.
1.4 You agree to appoint one member of staff to work with the Consultant to provide all such reasonable assistance as may be required and with authority to approve and finalise projects on your behalf.
1.5 You agree to provide all information, text. images and other material reasonably required by the Consultant within a reasonable time having regard to timelines for campaigns and no later than four weeks from Commencement and if you fail to do so the Consultant may revise the Fees, timelines and other items in the Scope of Work.
1.6 You agree to provide us with text copy and content images in such format as we may reasonably require.
1.7 You accept responsibility for proof reading all text files you provide to the Consultant and also for proof reading, before publication, of all material we produce for you. the Consultant does not accept responsibility for typographical errors, spelling mistakes or incorrect information of any material produced by the Consultant and approved by you.
1.8 If any artwork if required on USB this will be charged as per the Scope of Work.
- Money Matters and Termination
2.1 Fees are set out in the Scope of Work and any payment terms in the Scope of Work that are inconsistent with these Terms and Conditions will over-ride.
2.2 The Consultant is not required to commence providing the Services until any agreed deposit is paid in cleared funds.
2.3 All invoices are issued via email and are payable within 7 days from the date of issue, unless stated otherwise in the Scope of Work or a deposit is required before commencing the Services.
2.4 Invoices for ongoing work, such as subscription services, are issued 14 days in advance and payment is to be made within 7 days from the date of issue.
2.5 Where a fixed price is provided for a project, you must pay the initial deposit before work commences and once commenced you may not terminate that particular project. In any event deposits are non-refundable.
2.6 If you require work in addition to that which we have agreed upon, we will provide you with a quote if required or, alternatively, we will charge you at our hourly rate as in the Scope of Work.
2.7 Where we provide monthly retainer services such as market research, social media or other subscription services we will advise you of the services to be provided each month and you agree that if you wish to terminate any such engagement you will give us not less than 30 days’ notice which must be in writing and an email notice is deemed to be a notice in writing. In any event, if any subscription or regular payment has been committed to a third party provider at the time of termination, you agree that you are responsible for that payment.
2.8 With the exception of projects under clauses 2.4 or 2.6, once an agreement is made between us, either party may only terminate it by giving not less than 14 days’ notice to the other party. Such notice must be in writing and an email notice is deemed to be a notice in writing.
2.9 If you fail to pay any monies by the due date then we may suspend provision of the Services and charge you interest on all monies outstanding. The interest will be calculated from the due date until payment in full at the Commonwealth Bank Corporate Overdraft Interest Rate applicable on the due date and you agree to pay all our costs of recovery including fees of collection agents or solicitors costs on a full indemnity basis.
2.10 Any proposal or quotation we may provide is valid for 30 days after which date we may withdraw or alter its terms.
- Further Termination Provisions
3.1 Notwthstanding any other provisions in these Terms and Conditions or Scope of Work either party may immediately terminate an Agreement between them by notice in writing or by email If the other party commits a material breach or breaches a material condition of an Agreement.
3.2 If the Consultant terminates an Agreement pursuant to clause 3.1, all amounts outstanding shall become immediately due and payable including any continuing third party fees or subscriptions for which the Consultant is liable and the Customer will be liable for all Services provided up to the date of termination including work in progress.
3.3 Material or essential terms herein include dates for payment of Fees and other amounts, obligations of confidentiality and obligations regarding Intellectual Property Rights.
4.1 We each agree in relation to all Confidential Information held by either of us in connection with these Terms and Conditions and any Scope of Work that we will:
- use it only for the purposes of fulfilling our obligations hereunder and will not disclose it without the written authority of the other party;
- immediately secure the execution by any employee or any sub-contractor requiring access to any Confidential Information of a non-disclosure agreement with obligations no less onerous than those in this Agreement; and to
- immediately notify each other where we become aware of a breach of this clause.
4.2 The operation of this clause shall survive the termination of each Agreement for an unlimited period.
4.3 We agree that this clause will not apply to information that is already known by the recipient, is lawfully in the public domain, legally required to be disclosed by the recipient or disclosed to a professional adviser who is under no less stringent obligations to hold the Confidential Information confidential.
4.4 We each acknowledge that If Confidential Information is disclosed in breach of an Agreement the other party would suffer financial and other loss and damage and monetary damages would be an insufficient remedy; and accordingly, the other party is entitled to injunctive relief to prevent a breach of these obligations and to compel specific performance of these obligations.
- Intellectual Property Rights and Privacy
5.1 You will retain ownership in all data, files, graphics and other material supplied by you (Supplied Material) and you licence the Consultant to use all such material for the purposes of any Scope of Work for which it is supplied.
5.2 You are responsible for ensuring you obtain rights to use all Supplied Material where Intellectual Property Rights are held in a third party and you indemnify the Consultant against any claim, cost or damages for any breach of those rights. This includes not providing any information, data or content that contains the name, photographic or pictorial representation of any living person by which they can be identified unless you have obtained the prior written authority of that person.
5.3 The Consultant will retain all Intellectual Property Rights in and to all materials or software developed or designed by the Consultant specifically for your sole use until payment of the fees in full. Upon payment in full, the Consultant will transfer to you an enduring, exclusive, royalty free licence to use the style, layout, and general or graphic design for the purpose of the Customer’s business only, whilst retaining all Intellectual Property Rights in functions, coding, programming and source files which shall remain the property of the Consultant at all times.
5.4 The Intellectual Property Rights referred to in clause 5.3 do not include designs or concepts offered by the Consultant which you have not accepted nor paid for and the Consultant is free to utilize such designs or concepts, without using your Confidential Information, for whatever purposes she may chose.
- Liability and Indemnities
6.1 To the extent permitted by law, the only warranties we provide are those contained in or implied by the Competition and Consumer Act (Cmth) 2010 and where a warranty may not be excluded, then our liability for a breach of such an implied warranty is limited solely to the re-supply of the relevant services or the payment to you of the cost of having the services resupplied, at our option.
6.2 You acknowledge that we give no warranties as to the success or results of implementing any marketing activity or other services supplied by us.
6.3 Excepting events under clause 6.1 above, our liability to you for all proven loss and damage arising from breach of an Agreement or a claim under common law or tort (including negligence) is limited to the total Fees payable for the Services supplied up to the date of the breach.
6.4 So far as the law allows we will not be liable in contract, tort, equity, by operation of statute or otherwise for any Consequential Loss suffered or incurred by you or any other person arising out of or in connection with these Terms and Conditions.
6.5 Where either party incurs legal costs and expenses as a result of enforcing or defending its rights against the other under these Terms and Conditions the party at fault shall be liable to pay the other party’s reasonable legal costs and expenses on a full indemnity basis.
6.6 You agree to pay all our costs and expenses incurred in connection with recovering monies due by you to us under these Terms and Conditions including debt collection agency and legal costs.
6.7 You agree to indemnify the Consultant against damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred arising out of or in connection with any information, text, graphics or other material of whatsoever nature you supply to the Consultant and for ongoing use of deliverables supplied by the Consultant in accordance with these Terms and Conditions.
7.1 The Consultant will not be liable to you for any delays nor errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) delays by third parties, natural events such as fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
7.2 Any notice served under these Terms and Conditions will be deemed served:
7.2.1 If an email, upon the generation of a delivery receipt if the delivery receipt is generated on a Business Day, between the hours of 9am – 5pm, or if sent at any other time shall be deemed served at 9am on the next Business Day after the delivery receipt is generated.
7.2.2 If in writing and posted, within three Business Days from the date of posting.
7.2.3 If in writing and personally delivered, at the time of delivery.
7.3 If a provision is held to be illegal, invalid, void or unenforceable that provision must be read down to the extent necessary to ensure it has effect and if it is not possible to read down such a provision then it is to be severed without affecting the validity or enforceability of the remaining provisions of this Agreement.
7.4 This Agreement may not be modified, amended or varied except in writing signed by both parties.
7.5 A right may only be waived in writing, signed by the party giving the waiver; and
7.5.1 no other conduct of a party (including a delay in exercising, relaxation or a failure to exercise the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
7.5.2 a waiver of a right on one or more occasion does not operate as a waiver of that right if it arises again; and 7.5.3 the exercise of a right does not prevent any further exercise of that right or of any other right.
7.6 Each Agreement will constitute the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral,between the parties with respect to the subject matter thereof.
7.7 The provisions of these Terms and Conditions which are intended or capable of having effect after the expiration or termination of an Agreement including provisions relating to warranties, indemnities, liability, licences, privacy, confidential information and Intellectual Property Rights) are continuing and will not merge or be extinguished by the termination or expiration of an Agreement.
8.1 This Agreement is governed by the laws of the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria and waives any right to object to proceedings being brought in those Courts.
8.2 A reference to a person includes a firm, partnership, association, corporation or other corporate body.
8.3 If a party consists of more than one person, these Terms and Conditions bind them jointly and severally and a reference to a gender includes the other gender.
8.4 The singular includes the plural and vice versa.
8.5 “Including” is a word that is all-encompassing and is not a word of limitation.
8.6 “in writing” includes any notice or communication in or attached to an email.
8.7 Headings and subheadings are inserted for ease of reference only and shall not be used in the interpretation of these Terms and Conditions.
For the purposes of these Terms and Conditions the following words have the following meanings:
Agreement means these Terms and Conditions signed by both parties together with a Scope of Work signed by the Customer.
Business Day means any day other than a weekend or public holiday in the State of Victoria, Australia.
Commencement Date is the date a Scope of Work, Quote or Proposal is signed, accepted or confirmed via email by the Customer.
Confidential Information means non-public information that relates to the disclosing party’s business operations, financial condition, customers, products, services, designs, drawings, development work or technical knowledge, including business processes, the provision of, or information disclosed in connection with, the Agreement, except as otherwise specifically agreed in writing by the parties.
Consequential Loss means loss of revenue; loss of profit or anticipated profits; loss or corruption of data or business or financial opportunity; loss of production; loss from business interruption; loss of reputation; punitive or exemplary damage; failure to achieve anticipated savings, reduction of costs or other savings and penalties payable under third party contracts however caused.
Consultant means Milla Medeiros ABN 27 036 641 911
Intellectual Property Rights means:
a) Confidential Information;
b) any design, copyright, trade mark, service mark, trade name, business name, patent, eligible layout right or similar right whether registered or not and any application in relation to the same;
c) any process, invention, discovery, trade secret, know-how or technical information;
d) any grant of registration for or title to anything referred to in paragraphs (a) to (c) above.
Scope of Work means each Scope of Work, Quote or Proposal supplied by the Consultant and signed by the Customer.
Term means the term stated in the Scope of Work which begins on the Commencement Date.