Agreement for the provision of services by Agent Digital Australia
Name Fredrick Robert Porter T/A Agent Digital Australia (ADA)
ABN 20 787 215 10
Address Suite 1, Columbia Tower, 19 Fern Street, Surfers Paradise QLD 4217 Australia
Telephone (07) 3186 6007
Mobile 0424 443 566
THE KEY TERMS:
WHO IS ADA?
ADA is in engaged in the business of a digital consultancy, including but not limited to website development, social media marketing, and the provision of educational and training services
WHO IS THE CLIENT?
The Client is a company or sole trader that seeks to engage ADA to provide various services.
WHAT ARE THE LIMITATIONS REGARDING THE SERVICES?
ADA will always use its best endeavours to complete the Services in the agreed manner and timeframe, but sometimes unexpected things can happen. These things may be in or outside ADA’s control. There may be an overspend in an advertising campaign, or there may be an error in the targeting of advertising. The Client can minimise the likelihood of these and other types of errors by undertaking clear and effective communications with ADA. While we will always use our best endeavours, ADA will not be responsible for any failure by us to complete the Services in the agreed manner and timeframe.
The KEY TERMS are to be read with the General Terms and Conditions to this Agreement, as follows:
GENERAL TERMS AND CONDITIONS ATTACHED TO THE AGREEMENT FOR THE PROVISION OF SERVICES BY AGENT DIGITAL AUSTRALIA TO THE CLIENT
3.METHOD OF PAYMENT
5.NO EMPLOYEE RELATIONSHIP
7.INTELLECTUAL PROPERTY RIGHTS
11.GOODS AND SERVICES TAX
12.COSTS AND DISBURSEMENTS
14.WAIVER OR VARIATION
15.GOVERNING LAW AND JURISDICTION
16. FURTHER ASSURANCE
19.NO RELIANCE ON WARRANTIES AND REPRESENTATIONS
22.CONSENTS AND APPROVALS
IT IS AGREED
1.1 In this Agreement, unless otherwise indicated by the context:
(a) Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Queensland, Australia;
(b) Business Hour means an hour in the period between 8am to 6pm on a Business Day; and
(c) GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(d) Services means the services provided by ADA and described in paragraph C.
1.2 In this Agreement, unless otherwise indicated by the context:
(a) words importing the singular include the plural and vice versa;
(b) headings are for convenience only and do not affect the interpretation of this Agreement;
(c) a reference to a clause, paragraph, schedule or the Details page is a reference to a clause, paragraph, schedule or the Details page of this Agreement;
(d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(e) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
(f) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
(g) a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
(h) a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;
(i) a reference to a body, whether statutory or not which ceases to exist; or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions; and,
(j) including and similar expressions are not words of limitation.
ADA must provide the Services listed in Paragraph C with the diligence and care expected of a professional experienced in providing Services of this type.
3. METHOD OF PAYMENT
3.1 The Client agrees to pay ADA the amount disclosed on ADA's current Rate Card for any work completed on behalf of the Client.
3.2 If the Client instructs a substantial change to the Services under thuis Agreement then the Fee will be increased or decreased (as the case may require) by a reasonable amount to reflect the change to the Services.
3.3 ADA may submit to the Client an invoice once each month for payment of the Fee. Each invoice must be accompanied by information sufficient to allow the Client to verify each invoice to its satisfaction.
3.4 Following receipt of an invoice, the Client must within 30 days pay to ADA the amount indicated on the invoice.
4. RESTRICTIVE COVENANT
The Client agrees that it/they will not at any time after the termination of this Agreement for any cause or by any means whatsoever:
(a) make public or divulge to any person, company or other legal entity any trade secrets or any information concerning the business operations or finances of ADA or any of its dealings, transactions or affairs;
(b) advertise, publicise or permit the advertising or publicising of their former connection with ADA; and
(c) do any act or thing whatsoever which may injure, impair or reduce or be likely to injure, impair or reduce the goodwill or reputation of ADA or its standing in the eyes of the public or any of its members.
5. NO EMPLOYMENT RELATIONSHIP
Notwithstanding any other provision contained in this Agreement or any other implication which may arise as a result of a course of dealing between them, at no time is ADA an employee of the Client.
The Client indemnifies ADA in respect of any claim or demand made or action commenced by any person against ADA or for which the Client is liable, in connection with any loss or damage suffered in connection with this Agreement, or the subject matter of this Agreement, including but not limited to any legal costs as between solicitor and client incurred by ADA or for which the Client is liable.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights owned by ADA to the Client or any other party.
7.2 Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
During the Term, the Client agrees not to make public or divulge to any person, company or other legal entity any trade or other secrets or processes or any other information concerning the business, operations or finances of ADA or any of its dealings, transactions or affairs or otherwise do any act or omit to do any act which directly or indirectly will or might reasonably be expected to injure the goodwill, business or reputation of ADA.
9.1 Any party to this Agreement may immediately terminate this Agreement upon giving written notice to each of the other parties to this Agreement upon the happening of any one of the following events:
(a) the date of commencement of the winding up or bankruptcy of one of the other parties, as the case may be;
(b) the date of appointment of a receiver or manager or receiver and manager to the assets or undertaking of one of the other parties or any part of the assets of that party or in the case of a party being a company the date of commencement of any official management of that other party pursuant to any relevant law; and
(c) the date of expiry of a notice referred to in this paragraph that is to say:
(i) if a party fails duly and punctually to carry out the obligations on its part to be performed or observed pursuant to this Agreement; and
(ii) the failure continues and persists for a continuous period of 14 days after service of written notice on that other party by any other party specifying the nature of the failure and directing the party to whom the notice is addressed to remedy the failure within such 14 day period.
9.2 ADA may at any time terminate this Agreement upon giving 7 days written notice to the Client.
9.3 The Client may at any time terminate this Agreement upon giving four weeks’ written notice to ADA.
9.4 Any notice of termination pursuant to this clause may be given to one or more of the parties to this Agreement other than the party giving such notice and will only be effective as between the party giving such notice and the party to whom such notice is addressed .
9.5 A party will not be in breach of this Agreement for failing to perform an obligation if performance was impossible due to a Force Majeure Event.
9.6 If the Force Majeure Event continues for three (3) or more, then ADA may (in its discretion and without limiting any other rights or remedies) immediately terminate this Agreement by notice to the Client.
9.7 A Force Majeure Event means any of the following causes provided that they are outside the reasonable control of ADA and could not have been prevented or avoided by that party taking all reasonable steps:
(a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or military usurped power;
(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority; or
(e) industrial action.
10. DISPUTE RESOLUTION
10.1 If a dispute arises in relation to this Agreement, a party may give the other parties a dispute notice setting out the details of the dispute and requiring that an attempt be made to resolve the dispute.
10.2 If the dispute is not resolved within seven (7) Business Days of the notification under Clause 10.1, a party to the dispute may at any time after the expiration of these seven (7) Business Days refer the dispute to mediation by a mediator chosen by the parties. If the parties fail to agree to a mediator within seven (7) days of the first request by a party for agreement to a mediator, the mediator will be chosen by the President of the Queensland Law Society.
10.3 The parties must instruct the mediator to complete the mediation process within thirty (30) days of receiving instructions or such other period as the parties agree. The parties must fully co-operate with the mediator, including providing all information that the mediator reasonably requests. The mediator will determine the procedures of the mediation and the parties will bear their own costs. The parties will equally bear the cost of the mediator. If the parties reach agreement during mediation, they will record the agreement in writing and be bound by that agreement.
10.4 Each party must comply with all its obligations under this Agreement notwithstanding any dispute arising and whilst such dispute is being dealt with under this clause 10.
11.1 Unless otherwise provided in this Agreement, any moneys payable under this Agreement have been calculated without regard to GST.
11.2 Any amount which is payable on account of GST as a consequence of any supply made under this Agreement is to be paid to the party making the supply at the same time as payment is made for the relevant supply.
12. COSTS AND DISBURSEMENTS
12.1 Each party must pay its own legal costs and disbursements in relation to the negotiation, preparation and completion of this Agreement and other documents referred to in it, unless expressly stated otherwise.
13.1 A notice or other communication required or permitted to be given by one party to another must be in writing and is taken to have been given when (unless otherwise proved):
(a) delivered personally, at the time it is delivered to the party;
(b) sent by pre-paid mail to the address of the addressee specified in the Details page:
(i) from Australia to an address within Australia, on the second Business Day after posting;
(ii) from Australia to an address outside Australia or from outside Australia to an address within Australia, on the fifth Business Day (at the address to which it is mailed) after posting; or
(c) sent by email to the email address of the addressee or such other email address notified as being the email address to use for the purposes of this clause:
(i) where the email is sent during a Business Hour on a Business Day, upon the return of a receipt which confirms successful transmission of the email to the email address of the recipient or, where no return receipt is produced by the recipient’s email system, by the end of the last Business Hour on the day the email was sent; or
(ii) where the email is sent after the end of the last Business Hour on a Business Day or on a non-Business Day, the email will be deemed to be received at the beginning of the first Business Hour on the next Business Day.
13.2 The address for service of each party is set out in the Details page. A party may change its address for service by giving notice of that change in writing to the other parties.
14. WAIVER OR VARIATION
14.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
14.2 The exercise of a power or right does not preclude:
(a) its future exercise; or
(b) the exercise of any other power or right.
14.3 The variation or waiver of a provision of this Agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
15. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.
This Agreement may be executed in any number of counterparts each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document and the date of this Agreement will be the date on which a counterpart is executed by the last party. The exchange of executed counterparts by email or fax will create a binding agreement.
18. WHOLE AGREEMENT
In relation to the subject matter of this Agreement this Agreement is the whole agreement between the parties; and this Agreement supersedes all oral and written communications by or on behalf of any of the parties.
19. NO RELIANCE ON WARRANTIES AND REPRESENTATIONS
19.1 In entering into this Agreement, each party:
(a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person; and
(b) has relied entirely on its own enquiries in relation to the subject matter of this Agreement.
19.2 This clause does not apply to warranties and representations that this Agreement expressly sets out.
If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
21. NO MERGER
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.
22. CONSENTS AND APPROVALS
Where this Agreement gives any party a right or power to consent or approve in relation to a matter under this Agreement, that party may withhold any consent or approval or give consent or approval conditionally or unconditionally. The party seeking consent or approval must comply with any conditions the other party imposes on its consent or approval.
If, as a result of this Agreement, the Client is able to access Personal Information about individuals held by or on behalf of ADA, then the Client agrees to:
(a) comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws, including the EU General Data Protection Regulation (GDPR) if the Client has operations in Europe, and such other data protection laws as may be in force from time to time, which regulate the collection, storage, use and disclosure of information, as if the Client was regulated by these laws;
(b) comply with any privacy code or policy which has been adopted by ADA (copies available on request) as if the Client was bound by that code or policy;
(c) comply with any direction of ADA that is consistent with the laws, codes and policies referred to in clauses 23(a) and 23(b);
(d) collect or use the Personal Information only for the purposes of performing the Client’s obligations under this Agreement;
(e) collect, use and disclose the Personal Information only in ways which ensure it remains under the Client's effective control;
(f) not disclose the Personal Information other than to the Client's employees without ADA's prior written consent;
(g) promptly notify ADA in writing of any request made by an individual for access to or correction of the information and respond to such requests only in accordance with ADA's reasonable directions;
(h) co-operate with ADA in the resolution of any complaint under, or relating to, any of the laws, codes or policies referred to in clauses 23(a) and 23(b);
(i) immediately notify ADA in writing, and give ADA full details, about any accidental or unauthorised access to any Personal Information;
(j) not store or allow the storage of the Personal Information outside Australia and not disclose or allow the disclosure of the Personal Information to any person outside Australia;
(k) take all reasonable steps within the Client’s power and authority to ensure that the Client does not do or allow anything to be done which may identify or facilitate the identification of any individual whose identity has not been directly disclosed by ADA as part of the Personal Information (including through any form of reidentification of anonymised information);
(l) indemnify ADA and its officers, employees, agents and contractors against all loss, damage, injury, claim, demand, cost or expense (including legal fees and expenses) that any or all of them suffer or incur as a result of any breach of clauses 23(a) to 23(k); and
(m) Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
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Signed by Fred Porter
Signed On: January 10, 2021
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Document Name: Service Agreement
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