A. wishes to receive Digital Marketing .
A. E-DIGITAL MARKETING AGENCY PTY LTD has the skills, background and experience in providing SEO, Social Media Promotions, Website Creation.
A. wishes to engage an independent contractor to provide the Services to .
A. E-DIGITAL MARKETING AGENCY PTY LTD is willing to provide the Services and is willing to appoint E-DIGITAL MARKETING AGENCY PTY LTD to provide the Services, all in accordance with the provisions of this Agreement.
O PERATIVE CLAUSES
1.Definitions and Interpretation
1.1 Definitions
In this Agreement unless the context indicates otherwise, the following words will have the following meanings:
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed by E-DIGITAL MARKETING AGENCY PTY LTD during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used in the course of the business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties,
schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under this agreement.
Deliverable means the goods or services to be supplied by the Supplier pursuant to this agreement.
Facilities means working space, computer equipment, access to the internet and computer network, telecommunications system etc. It includes access to such resources but also use of them to the extent required by the Supplier to perform the Services.
Fee(s) means the fees set out in the Specification.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means E-DIGITAL MARKETING AGENCY PTY LTDand , and Party means either one of them.
Personal Information has the meaning as defined in any applicable Privacy
Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth).
Services means the services to be provided by the Supplier under this agreement.
Specification means the specific Services to be provided by E-DIGITAL MARKETING AGENCY PTY LTDunder this Agreement. The Specification is set out in Schedule 1 of this Agreement.
Supplier’s Personnel means any person or persons that the Supplier designates to perform the Services on the Supplier’s behalf.
Termination Date means the earlier of:
⦁ the date of termination of this Agreement by or E-DIGITAL MARKETING AGENCY PTY LTD; and
⦁ the date of expiry of this Agreement.
2. Interpretation
In this Agreement unless the context otherwise requires:
affect the interpretation;
⦁ any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
⦁ the word “including” (and related forms including “includes”) means “including without limitation”.
⦁ Services
⦁ E-DIGITAL MARKETING AGENCY PTY LTD will provide the Services to in consideration for paying the Fee to E-DIGITAL MARKETING AGENCY PTY LTD, subject to the provisions of this agreement.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD and will agree on the time and place for the performance of the Services.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD will use reasonable endeavours to complete the Services including the provision of data, materials or reports by the dates specified in the Specification or any other dates agreed by the Parties.
⦁ The Services will be performed by the employees or agents that E-DIGITAL MARKETING AGENCY PTY LTD may choose as most appropriate to carry out the Services as agreed, from time to time by the Parties.
⦁ The Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Services, and the Fee(s) will be set out in the Specification.
⦁ Location
E-DIGITAL MARKETING AGENCY PTY LTD will provide the Services in places and locations as E-DIGITAL MARKETING AGENCY PTY LTD considers appropriate to the type and nature of the requirements of .
⦁Fee(s)
1.Payment of Fees
⦁ In consideration of the provision of the Services in accordance with this agreement, will pay E-DIGITAL MARKETING AGENCY PTY LTD the Fee.
⦁ Where E-DIGITAL MARKETING AGENCY PTY LTD’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
⦁ acknowledges that the Fees are exclusive of any GST that may be charged by E-DIGITAL MARKETING AGENCY PTY LTDto , and therefore, E-DIGITAL MARKETING AGENCY PTY LTD will be entitled to add on GST.
4.2. Invoicing
⦁ E-DIGITAL MARKETING AGENCY PTY LTD will provide with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 4.
⦁ Payment will be made by to E-DIGITAL MARKETING AGENCY PTY LTD within 7 days after receiving E-DIGITAL MARKETING AGENCY PTY LTD’s invoice.
⦁ When making a payment, must quote relevant reference numbers and the invoice number.
⦁ The invoice referred to in clause 4.2(b) must include the following details before payment can be approved and forwarded:
⦁ date of Services;
⦁ name of individual provided by E-DIGITAL MARKETING AGENCY PTY LTD;
⦁ description of Services provided;
⦁ time allocated per task; and
⦁ the ABN of E-DIGITAL MARKETING AGENCY PTY LTD.
4.3. Variation of Fees
E-DIGITAL MARKETING AGENCY PTY LTD is entitled to vary their rates during the term of this agreement with written notice to of 14 prior to the change being implemented.
4.4. Costs and disbursements
E-DIGITAL MARKETING AGENCY PTY LTD is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, and postage.
4.5. Failure to pay
If does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, E-DIGITAL MARKETING AGENCY PTY LTD is entitled to do any or all of the following:
4.6. Disputed invoices
If disputes the whole or any portion of the amount claimed in an invoice submitted by E-DIGITAL MARKETING AGENCY PTY LTD, must:
⦁ notify E-DIGITAL MARKETING AGENCY PTY LTD in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD’s Personnel
⦁ If : makes a notice in writing to E-DIGITAL MARKETING AGENCY PTY LTD; and
may require E-DIGITAL MARKETING AGENCY PTY LTD to cease to permit a particular person or persons employed by E-DIGITAL MARKETING AGENCY PTY LTD or acting as agent for E-DIGITAL MARKETING AGENCY PTY LTD to carry out the Services.
⦁ If makes the requirement referred to in clause 5(a), E-DIGITAL MARKETING AGENCY PTY LTD must, as soon as it is practicable:
⦁ cease to provide the service of the particular person or persons in respect of ’s business; and
⦁ provide the services of an alternative person or persons as may be reasonably acceptable to .
⦁ ‘s Obligations
⦁ During the preparation of the Specification and performance of the Services will:
⦁ cooperate with E-DIGITAL MARKETING AGENCY PTY LTD as E-DIGITAL MARKETING AGENCY PTY LTD reasonably requires;
⦁ provide the information and documentation that E-DIGITAL MARKETING AGENCY PTY LTD reasonably requires;
⦁ make available to E-DIGITAL MARKETING AGENCY PTY LTD such Facilities as E-DIGITAL MARKETING AGENCY PTY LTD reasonably requires; and
⦁ ensure that ’s staff and agents cooperate with and assist E-DIGITAL MARKETING AGENCY PTY LTD.
⦁ will not charge for E-DIGITAL MARKETING AGENCY PTY LTD’s use of the Facilities made available by .
⦁ If does not provide the Facilities that E-DIGITAL MARKETING AGENCY PTY LTD reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by E-DIGITAL MARKETING AGENCY PTY LTD will be paid by .
⦁ No partnership or employment relationship
⦁ It is the express intention of the Parties that any such relationships are denied.
⦁ Use of subcontractors
⦁ E-DIGITAL MARKETING AGENCY PTY LTD is permitted to use other persons to provide some or all of the Services.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD is responsible for the work of any of E-DIGITAL MARKETING AGENCY PTY LTD’s subcontractors.
⦁ Subject to clause 8(d), any work undertaken by any of E-DIGITAL MARKETING AGENCY PTY LTD’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
⦁ To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this agreement (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
⦁ Disclosure and ownership of intellectual property
⦁ The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP. E-DIGITAL MARKETING AGENCY PTY LTD grants to a worldwide, royalty free, perpetual, irrevocable, transferable, non-exclusive licence to use the Background IP to the extent necessary for to derive full benefit from its acquisition of the Deliverables.
⦁ acknowledges that ownership of the Contact IP remains vested in E-DIGITAL MARKETING AGENCY PTY LTD. E-DIGITAL MARKETING AGENCY PTY LTD grants to an exclusive, perpetual, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling to derive full benefit from its acquisition of the Deliverables.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD agrees to indemnify fully against all liabilities, costs and expenses that may incur if the Contract IP or Background IP infringes the rights of a third party, save that E-DIGITAL MARKETING AGENCY PTY LTD will have no indemnity obligation if any infringement, suspected infringement or alleged infringement of the Contract IP or Background IP arises from:
⦁ use of the Deliverables in combination by any means and in any form with other goods not specifically approved by E-DIGITAL MARKETING AGENCY PTY LTD;
⦁ use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by E-DIGITAL MARKETING AGENCY PTY LTD;
⦁ modification or alteration of the Deliverables without prior consent in writing of E-DIGITAL MARKETING AGENCY PTY LTD; or
⦁ any transaction entered into by the Customer relating to the Deliverables without E-DIGITAL MARKETING AGENCY PTY LTD’s prior consent in writing.
⦁ The obligations accepted by E-DIGITAL MARKETING AGENCY PTY LTDunder this clause 9 survive termination or expiry of this agreement.
⦁ Confidentiality
⦁ A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
⦁ The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
⦁ At the Termination Date, or when earlier directed by the Discloser:
⦁ all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
⦁ the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
⦁ The Confidential Information does not include information which:
⦁ is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Recipient; or
⦁ was known by the Recipient prior to the Discloser disclosing the information to the Recipient.
⦁ The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.
⦁ The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 10 by the Recipient.
⦁ The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 10.
⦁ The obligations accepted by the Recipient under this clause 10 survive termination or expiry of this agreement.
⦁ Warranties, liability and indemnities
11.1. Warranties
⦁ E-DIGITAL MARKETING AGENCY PTY LTD warrants that it will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which E-DIGITAL MARKETING AGENCY PTY LTD operates for the type of Services provided by E-DIGITAL MARKETING AGENCY PTY LTD.
⦁ If E-DIGITAL MARKETING AGENCY PTY LTD performs the Services (or any part of the Services) negligently or materially in breach of this agreement including any part of the Specification, then, if requested by , E-DIGITAL MARKETING AGENCY PTY LTD will re-perform the relevant part of the Services, subject to clauses 11.6(a) and 11.6(b) below.
⦁ ’s request referred to in clause 11.1(b) must be made within 28 of the date E-DIGITAL MARKETING AGENCY PTY LTD completed performing the Services.
11.2. Insurances
E-DIGITAL MARKETING AGENCY PTY LTD must take out the following insurance:
⦁ worker’s compensation insurance as prescribed by law for E-DIGITAL MARKETING AGENCY PTY LTD’s Personnel; and
⦁ public liability insurance for a minimum of an amount to be agreed for each occurrence.
⦁ 3. Employees and subcontractors
⦁ E-DIGITAL MARKETING AGENCY PTY LTD covenants that E-DIGITAL MARKETING AGENCY PTY LTD is solely responsible for payment to E-DIGITAL MARKETING AGENCY PTY LTD’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as E-DIGITAL MARKETING AGENCY PTY LTD’s employees or agents.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD must otherwise comply with legislation applicable to E-DIGITAL MARKETING AGENCY PTY LTD’s employees and agents.
11.4. Compliance with all laws
Throughout this agreement E-DIGITAL MARKETING AGENCY PTY LTD must comply at E-DIGITAL MARKETING AGENCY PTY LTD’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to E-DIGITAL MARKETING AGENCY PTY LTD or to the Services. The E-DIGITAL MARKETING AGENCY PTY LTD must indemnify from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.
11.5. No warranties in relation to completion
E-DIGITAL MARKETING AGENCY PTY LTD provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date any other date, whether stated in this agreement, the Specification or elsewhere.
⦁ 6. Limitation on liability
⦁ Except in the case of death or personal injury caused by E-DIGITAL MARKETING AGENCY PTY LTD’s negligence, the liability of E-DIGITAL MARKETING AGENCY PTY LTD under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by to E-DIGITAL MARKETING AGENCY PTY LTD under this agreement. The provisions of clause 11.6(a) will not apply to clause 11.4.
⦁ Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clause 11.4. For the purposes of this subclause, “consequential loss or damage” means any Loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this agreement.
⦁ E-DIGITAL MARKETING AGENCY PTY LTD liability for failure to comply with a Consumer Guarantee is limited to:
⦁ in the case of goods supplied to , the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the of the replacement or supply), or the repair of the goods (or the payment of the cost to the of the repair); and
⦁ in the case of services supplied to , the supply of the services again or the payment of the cost to the of having the services supplied again.
11.7. No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
11.8. Survival of obligations
The obligations accepted by E-DIGITAL MARKETING AGENCY PTY LTD and under this clause 11 survive termination or expiry of this agreement.
⦁ Privacy
⦁ is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by to E-DIGITAL MARKETING AGENCY PTY LTD in connection with this agreement so as to ensure that E-DIGITAL MARKETING AGENCY PTY LTD dealings with that information pursuant to this agreement comply with E-DIGITAL MARKETING AGENCY PTY LTD obligations under any Privacy Laws.
⦁ must indemnify E-DIGITAL MARKETING AGENCY PTY LTD against, and must pay E-DIGITAL MARKETING AGENCY PTY LTD on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 12(a).
⦁ must :
⦁ immediately notify E-DIGITAL MARKETING AGENCY PTY LTD if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
⦁ comply with any directive from E-DIGITAL MARKETING AGENCY PTY LTD as to which Party will discharge any statutory reporting obligation arising from the incident;
⦁ conduct or assist E-DIGITAL MARKETING AGENCY PTY LTD in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
⦁ ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.
⦁ Termination
⦁ Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:
⦁ fails to observe any term of this Agreement; and
⦁ fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 notice of the breach being given in writing by the notifying Party to the other Party.
⦁ Either Party may terminate this Agreement immediately upon the happening of any of the following events:
⦁ if the other Party commits a material breach of the agreement which is
incapable of rectification;
⦁ if enters into a deed of arrangement or an order is made for it to be wound up;
⦁ if an administrator, receiver or receiver/manager or a liquidator is appointed to pursuant to the Corporations Act; or
⦁ if would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
⦁ Upon termination of this agreement any fees, expenses or reimbursements payable by to E-DIGITAL MARKETING AGENCY PTY LTD in respect of any period prior to the Termination Date must be paid by within 7 after the Termination Date.
⦁ General
⦁ 1. Force Majeure
⦁ Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
⦁ The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
⦁ If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
14.2. Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
⦁ 3. Assignment
⦁ Subject to clause (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
⦁ A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
14.4. Entire agreement
⦁ This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
⦁ The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
⦁ 5. Waiver
⦁ No failure or delay by E-DIGITAL MARKETING AGENCY PTY LTDin exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
⦁ The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
⦁ 6. Agency, partnership etc
⦁ This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
⦁ Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
14.7. Further assurance
Each Party to this Agreement will at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
14.8. Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
⦁ 9. Announcements
⦁ Subject to clause (b), no Party will issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other
Party to its terms.
⦁ No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
⦁ 10. Notices
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.
14.11. Work, health and safety
E-DIGITAL MARKETING AGENCY PTY LTD must comply with all relevant work, health, safety and welfare standards and regulations determined by or as prescribed by legislation.
14.12. Law and jurisdiction
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
Executed as an Agreement on
Executed for by its authorised representative:
Signature
Name
Executed for E-DIGITAL MARKETING AGENCY PTY LTD by its
authorised representative:
Signature
Name
SCHEDULE 1 SPECIFICATIONS
SEO, Digital Marketing
Subscriptions Standard, Professional and Enterprise
14 Days
