Terms of Service

Last modified: 11 November 2024

1. Definitions and interpretation
2. Engagement as Consultant
3. Provision of the Services
4. Pricing and invoicing
5. Payment
6. GST
7. Confidentiality
8. Non-disparagement
9. Website Design/Development, Third Party Services and SEO
10. Intellectual Property
11. Liability and remedies
12. Termination
13. Non-solicitation
14. Notices
15. General

1. Definitions and interpretation

Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.

Charges means Fees and Expenses.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Client means the party that will receive the Services as named in the Order.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

(a) any information that is specifically designated by any of them as confidential;
(b) any information which, by its nature, may reasonably be regarded as confidential;
(c) any information relating to any:
(i) agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
(ii) customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
(iii) Intellectual Property Rights,
 of any of them; and
(d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.
Control has the meaning given in Section 50AA of the Corporations Act.
Copyright Act means the Copyright Act 1968 (Cth).
Corporations Act means the Corporations Act 2001 (Cth).
Deadline Date means, in respect of an Order, the dates (if any) specified in the Order as the dates on or before which the Digital Marketing Agency must complete each Phase in accordance with clause 3.4.
Default Rate means a rate of interest of 5.00% per annum.
Digital Marketing Agency means Content Chemistry Pty Ltd As Trustee For Reiche Family Trust
Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.
Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.
Event of Default means any of the following on the part of the Client:
(a) committing any material or persistent breach of this agreement;
(b) repudiating or, or, in the reasonable opinion of the Digital Marketing Agency, evincing an intention to repudiate, this agreement;
(c) if the Client is a company, undergoing a Change of Control without the prior written consent of the Digital Marketing Agency;
(d) misleading the Digital Marketing Agency in any material way; and/or

(e) an Insolvency Event occurring in respect of the Client.
Expenses mean the expenses of the Digital Marketing Agency for which the Digital Marketing Agency is entitled to be reimbursed by the Client pursuant to clause 4.6.
Fees has the meaning given in clause 4.1.
Fixed Price means, in respect of a particular Order, if, as specified in the relevant Order:
(a) the Services are not divided into Phases, the price (exclusive of GST) specified in the relevant Order for all of the Services; or
(b) the Services are divided into Phases, the price (exclusive of GST) specified in the relevant Order for each Phase respectively.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST has the same meaning given to that expression in the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
GST Law has the same meaning given to that expression in the GST Act.
HubOps Services are Services described in an Order.
Hourly Rate means the hourly rate set out in the relevant Proposal, if applicable.
Insolvency Event means, in respect of a party:
(a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
(b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
(c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
(d) the party is otherwise unable to pay its debts as and when they fall due.
In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.
Input Tax Credit has the meaning given in the GST Law.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
(a) liabilities on account of Tax;
(b) interest and other amounts payable to third parties;
(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
(d) all amounts paid in settlement of any Claim.
Monthly Services are Services described in an Order.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
Non-Solicitation Period means each period of time following: 3 months; 6 months.
Order means an order entered into between the parties governed by this agreement, including description of Services in sections identified as follows:

Out-of-Scope Rate has the meaning given in clause 4.2.
Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Order or scope of work (if any).
Personal Information has the meaning given in the Privacy Act.
Privacy Act means the Privacy Act 1998 (Cth).
Project Services are Services described in an Order.
Project means any particular set of Services to be provided as a discrete project and grouped as such in the Order.
Relevant IP means all Intellectual Property Rights that the Digital Marketing Agency makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Digital Marketing Agency’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
(a) using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
(b) in the course of, as a consequence of, or in relation to, the provision of the Services by the Digital Marketing Agency and/or the performance (whether proper or improper) of the Digital Marketing Agency’s duties and responsibilities to the Client under this agreement or otherwise;
(c) as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
(d) in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Services means the services provided by the Digital Marketing Agency to the Client under this agreement , as set out in the relevant Order, which may be Monthly Services or Project Services or HubOps Services.
Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.
Start Date means the date of this agreement or such other date as the parties may agree in writing.
Subscription means an agreed arrangement for the Client to receive Monthly Services for a term with payments in advance. 
Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
Tax or Taxation means:
(a) any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
(b) unless the context otherwise requires, Stamp Duty and GST; and
(c) any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Term means the minimum period of the Digital Marketing Agency’s engagement with the Client in months.
Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.

Interpretation

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:
(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;
(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
(i) a reference to writing includes any communication sent by post, facsimile or email;
(j) a reference to time refers to time in Sydney, New South Wales and time is of the essence;
(k) all monetary amounts are in Australian currency;
(l) a reference to a “liability” includes a present, prospective, future or contingent liability;
(m) the word “month” means calendar month and the word “year” means 12 calendar months;
(n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
(o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
(p) a reference to any thing is a reference to the whole and each part of it;
(q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
(r) words in the singular include the plural and vice versa; and
(s) a reference to one gender includes a reference to the other genders.

1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;

(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;

(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(i) a reference to writing includes any communication sent by post, facsimile or email

(j) a reference to time refers to time in Sydney, New South Wales and time is of the essence;

(k) all monetary amounts are in Australian currency;

(l) a reference to a “liability” includes a present, prospective, future or contingent liability;

(m) the word “month” means calendar month and the word “year” means 12 calendar months;

(n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;

(p) a reference to any thing is a reference to the whole and each part of it;

(q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(r) words in the singular include the plural and vice versa; and

(s) a reference to one gender includes a reference to the other genders.

2. Engagement as Consultant

2.1 The Client hereby engages the Digital Marketing Agency on a non-exclusive basis to provide the Services to the Client, and the Digital Marketing Agency hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.

Start Date and Term

2.2 The Digital Marketing Agency’s engagement with the Client will:
(a) commence on the Start Date; and

(b) for Project Services, continue until the Services are completed;
(c) for Monthly Services, continue for a minimum three (3) month Term; and

(d) for HubOps Services, continue for a minimum one (1) month Term; and 
(e) then on a month-to-month basis, unless specified otherwise or until it is terminated in accordance with clause 12.

Nature of relationship

2.3 The Digital Marketing Agency is an independent contractor of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties

3. Provision of the Services

Order

3.1 The Services are more fully described in the applicable Order.

Standards and duties

3.2 The Digital Marketing Agency must, in providing the Services, comply with the standards and duties:
(a) (Honesty and diligence) be honest and diligent and provide the Services to it to the best of its knowledge and abilities;
(b) (Standards) at all times maintain reasonable ethical, professional and technical standards;
(c) (Discrimination and harassment) not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person; and
(d) (Privacy)  in relation to any Personal Information of any customer, client, supplier or Representative of the Client, any user or prospective user or any other person, comply with:
(i) the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner; and
(ii) any approved privacy policy and procedures adopted from time to time by the Client.
3.3 The Client must provide the Digital Marketing Agency with any information requested or access to any of the Client’s systems that the Digital Marketing Agency reasonably requires to perform each Service. The Client’s systems include any electronic offering, device or computer code, website, Google Ads account, Google Analytics account, Facebook Page, Facebook Ad Management account, LinkedIn Page, LinkedIn Ads account, cPanel account, FTP account or CMS account. The Client must provide this information or access within the later of 14 days of the request by the Digital Marketing Agency or when the information or access becomes first available to the Client.

Deadline Dates

3.4 If the Services for an Order are divided into Phases, the Digital Marketing Agency must ensure that the Services for each Phase of described in the Order are fully completed to the reasonable satisfaction of the Client on or before the relevant Deadline Date unless the Client has caused or is responsible for a delay.

HubOps Services

3.5 Notwithstanding anything else express or implied in this Agreement, the following terms apply and prevail in respect of HubOps Services:
(a) the term of the Order for Hub Spot Services commences on the Start Date and continues thereafter on a month-to-month basis, and this prevails over clauses 2.2 (b) and (c);
(b) the Digital Marketing Agency may terminate an Order for HubOps Services on written notice to the Client effective at any time, and such termination will take effect from the start of the month following the date of the notice from the Digital Marketing Agency to the Client, and this prevails over clauses 12.3 and 12.4;

(c) the Client may terminate an Order for HubOps Services on written notice to the Digital Marketing Agency effective at any time prior to seven (7) days before the end of the applicable month of HubOps Services, and such termination will take effect from the start of the month following the date of the notice from the Client to the Digital Marketing Agency;
(d) further to clause 11.3, the Client acknowledges that the Digital Marketing Agency accepts no liability for the quality of the HubOps Services provided by the HubOps Services provider, nor that such HubOps Services meet the Client’s requirements; and
(e) all payments for HubOps Services are payable by Client to the Digital Marketing Agency in advance for the month of availability of the applicable HubOps Service and in accordance with clause 5.

4. Pricing and invoicing

Pricing

4.1

(a) Subject to clause 3.1, the total price for the Monthly Services and/or HubOps Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) are payable monthly in advance. 
(b) Subject to clause 3.1, the total price for Project Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) require: 
(i) 50% of the Fee for the Project Services prior to the commencement of any work; and 
(ii) The remaining 50% of the Fee for Project Services is due upon completion. 
(c) Unless otherwise specified in an Order, the Client will pay the Digital Marketing Agency an hourly rate of AUD 250 (the Out-of-Scope Rate) for any Out-of-Scope Work.

Hourly Rates and Out-of-Scope Rates

4.2 Hourly Rates and Out-of-Scope Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15 minute units, with 4 units per hour – e.g. the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units.
4.3 The Digital Marketing Agency must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Client with a copy of such records upon reasonable notice as may be requested by the Client from time to time.
4.4 The Hourly Rate and Out-of-Scope Rate may only be changed by way of an amendment to this agreement pursuant to clause 15.7.

Reimbursement of Expenses

4.5 The Client will pay all reasonable expenses properly and necessarily incurred by the Digital Marketing Agency in the course of providing the Services, provided that:
(iii) the Digital Marketing Agency:
(i) obtains the Client’s written consent before incurring the expenses;
(ii) provides the Client with acceptable documentation for the expenses incurred; and
(iii) complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to the Digital Marketing Agency by the Client prior to the relevant expense being incurred; and
(iv) the Client will not be required to reimburse the Digital Marketing Agency for any amount of GST that the Digital Marketing Agency has paid, or is liable to pay, in relation to any supply acquired by the Digital Marketing Agency from any third party if the Digital Marketing Agency has received, or is entitled to receive, an Input Tax Credit for that GST.

5. Payment

Timing of payments

5.1 Invoices will be issued on the 1st of the month prior for the Monthly Services or HubOps Services that will be delivered that coming month, and in advance for Project Services. The Client must pay to the Digital Marketing Agency all Fees and Charges properly invoiced pursuant to clause 4 in full on or before the date that is 7 days after the Client’s receipt of the relevant invoice. Payments are non-refundable. If the Client does not pay the invoice within 7 days, the Digital Marketing Agency may stop all Services until payment is made in full.

Method of payment

5.2 All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash, credit card, electronic funds transfer or direct debit into the account nominated by the other party.

No set-off or deduction

5.3 All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).
5.4 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

Default interest

5.5 If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 5.5 is in addition to any other remedies that the other party may have in respect of such late payment.
5.6 If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.

6. GST

Definitions regarding GST

6.1 In this clause 6:
(i) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
(ii) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
(iii) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.

Consideration is exclusive of GST

6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.

Receiving Party to pay additional amount

6.3 If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment.  Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.

Fines, penalties and interest

6.4 The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.

Reimbursement

6.5 If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

Adjustment events

6.6 If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 6.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

7. Confidentiality

7.1 Subject to clauses 7.3 and 7.4, a Disclosee must:
(i) keep all Confidential Information confidential;
(ii) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
(iii) not disclose or make available any Confidential Information in whole or in part to any third party;
(iv) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
(v) ensure that any and all Authorised Third Party Disclosees:
(i) comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and
(ii) do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.
7.2 The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.

Exceptions

7.3 The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
7.4 Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
(i) was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:
(i) unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
(ii) received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
(ii) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
(i) in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 7.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or
(ii) that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
(iii) is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
(iv) is required by law or court order to be disclosed, provided that the Disclosee must:
(i) promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
(ii) reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;

(v) is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or

(vi) is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.

7.5 The exceptions in clause 7.4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.

8. Non-disparagement

8.1 Subject to clause 8.2, on and from the date of this agreement, each party must not:

(i) make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or

(ii) cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,
and must take all reasonable steps to prevent its Representatives from doing so.

8.2 Clause 8.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:

(i) promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and

(ii) reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

9. Website Design/Development, Third Party Services and SEO

General

9.1 The Client acknowledges:

(i) that the third party services provided by external companies and businesses are a separate service to this agreement (e.g. based on a “per click” fee that is charged and paid directly to the third party account and company) and that third party companies have their own terms and conditions. The Client acknowledges that they have read and accepted their terms and conditions. By accepting these terms and conditions the Client authorise the Digital Marketing Agency to set up their third party accounts and to access that account for the purposes of optimisation and management for the Client. However, the Client acknowledges that the account will be in the name of the Client and the Client will be the primary contact in relation to the account.

(ii) that the Digital Marketing Agency does not represent any third parties or act on their behalf.

(iii) and undertakes to provide the Digital Marketing Agency with billing details and any other information required to set up the accounts.

(iv) that it is their responsibility to notify both the Digital Marketing Agency and the third party service provider of billing expiry dates and that the Digital Marketing Agency will not be responsible for third party accounts not running due to an expired credit card billing details or any other billing issue.  

(v) that the Client will be solely responsible for any debt or monies owing to third parties such as Google, LinkedIn, Facebook, HubSpot, AdRoll or any other company, either during the course of or after termination of this agreement.

(vi) and agrees that cancellation of this agreement does not automatically result in termination of the Client’s third party advertising agreements, which will continue incurring their own fees, unless the agreement with such third parties are cancelled. If the Client wishes to cease using third party services at the same time as they cancel the agreement with the Digital Marketing Agency, they need to notify the Digital Marketing Agency in writing at least thirty (30) days in advance, so that the Digital Marketing Agency can cancel the Client’s third party advertising accounts at the same time.

9.2 While the Digital Marketing Agency will assist the Client by providing advice, information and technical services in relation to digital marketing, the Digital Marketing Agency cannot guarantee any particular rate of return or performance of any advertising on third party accounts, including, but not limited to, any particular search results pages or rankings, nor will Digital Marketing Agency be liable for any commercial outcomes relating to digital marketing or management of your third party account.

9.3 The Client acknowledges and agrees that they cannot have competing active third party advertising accounts. Third party services such as Google Ads, LinkedIn Ads and Facebook Ads, are complex products requiring specialised knowledge and skill and, as such, the Digital Marketing Agency is not obliged to follow any instructions or recommendations from the Client in relation to the services if, in its reasonably held opinion, it is likely to negatively impact its respective third-party account.

9.4 If the Client makes any changes to any third party accounts that the Digital Marketing Agency manage, the Digital Marketing Agency requests that the Client notifies the Digital Marketing Agency within 24 hours of any changes made.

9.5 The Digital Marketing Agency will seek the Client’s approval to launch anything which allows public access. As part of the approval process, the Client will be able to preview the Service. Any request for amendments or improvements to the Service (whether for usability, functionality, design or otherwise) beyond the scope of the agreement will incur additional fees. The Client will provide the Digital Marketing Agency with any information (or answers to requests) in accordance with the timelines specified by the Digital Marketing Agency (whether in the Proposal or otherwise). If the Client does not provide a response within 5 Business Days, unless otherwise stated, from the date the request was made, the Client will be deemed to have given Approval.

Website Design/Development

9.6 Once the staging server is ready for review, the Digital Marketing Agency will ensure the CMS is accessible for the Client to begin migrating and populating content. Training for the Client’s new website will consist of an in-depth, in-person training session conducted by the Digital Marketing Agency.

9.7 Upon completion of the website development, a staging link will be supplied with the Client’s website. From this date, there is a seven (7) day period to provide feedback to the Digital Marketing Agency and approve the website to go live. During this period, requested adjustments to the website will be completed as inclusive of the project. After this 14 day period or when the website goes live — whichever comes first — any final invoices will be issued, and any additional changes to the website will be billed hourly.

9.8 The Digital Marketing Agency will resolve any bugs or technical defects discovered within 14 days from deployment at no cost to the Client. Any issues arising outside of this period will incur additional maintenance costs, unless covered by an optional maintenance/support plan.

9.9 The Digital Marketing Agency builds contemporary websites using modern technology and development methods. If support for outdated browsers is required, this work will be charged at the standard hourly rate. The following items are excluded from website design and website development Services:

(i) Formal market research;

(ii) Copywriting (unless otherwise specified);

(iii) Illustration, photography, or other image making;

(iv) Stock image purchasing, usage and rights;

(v) Image retouching or file preparation; and

(vi) Third Party Management.

9.10 In order to improve results, the Digital Marketing Agency recommend that the Client’s website is hosted on a reliable server. The Client may elect to host their website with the Digital Marketing Agency, with HubSpot or another third party, depending on which CMS the Client chooses. If the Digital Marketing Agency provides the hosting service, the Client agrees that:

(i) the minimum term of the hosting service is 12 months;

(ii) to protect the integrity of the hosting environment and ensure security, the Digital Marketing Agency may not provide the Client with FTP or cPanel access (but may do so at the Digital Marketing Agency’s sole discretion);

(iii) the Digital Marketing Agency may from time to time be required to perform maintenance, upgrades or replacements to servers and in those circumstances the Digital Marketing Agency reserves the right to suspend access to any hosting service. While the Digital Marketing Agency will seek to give the Client notice of any planned server admin, where the Digital Marketing Agency considers (at their absolute discretion) the server admin is urgent, the Digital Marketing Agency may perform it any time and the Client acknowledges that this may interrupt their hosting service;

(iv) If the Client terminates the hosting service, the Digital Marketing Agency will (following satisfaction of all Fees owing), provide full cPanel and/or FTP access to the Client (or the Client’s third party provider) to allow the Client to move their website; and no longer be responsible for retaining copies of any data relating to their website, including files, databases or design collateral;

(v) The security of the Client’s website and personal information is important to the Digital Marketing Agency, but no method of transmission over the Internet, or method of electronic storage, is 100% secure. While the Digital Marketing Agency strive to use commercially acceptable means to protect your website and personal information, the Digital Marketing Agency cannot guarantee its absolute security.

9.11 In addition to this agreement, the Client acknowledges that search results or rankings may be negatively impacted by changes the Client makes to their domain or website, including modifications to on-page optimisation. SEO is governed by many factors which are outside of the Digital Marketing Agency’s control and may affect the ranking of the Client’s website/overall performance of SEO, including if: the Client’s website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty (either automatic or manual from Google), has an unnatural link profile or is hosted on a slow or blacklisted server; or the Digital Marketing Agency cannot get access to your website and/or its CMS. Nothing in this agreement shall be interpreted as a guarantee in relation to results obtained from the Services. Google continually updates its search algorithms, which may change the operation of SEO, resulting in a negative impact on your website rankings. In these circumstances, the Digital Marketing Agency will endeavour to rectify any negative impact as quickly as possible, but give no warranty that rankings will improve. In rare circumstances, the Digital Marketing Agency may have to move the Client’s website to a new domain to remove a penalty (and if so, the Client must accept this recommendation and agree to pay any associated costs.)

9.12 The Digital Marketing Agency may place a "Website by Content Chemistry” link the footer of your website if the Digital Marketing Agency has completed any website design and development for the Client. The Digital Marketing Agency may include or “Digital Marketing by Content Chemistry" link in the footer of your website if the Digital Marketing Agency is providing any Services to  the Client.

10. Intellectual Property

10.1 The parties agree that all Relevant IP will be owned by, and vest in, the Client.

Assignment

10.2 The Digital Marketing Agency hereby assigns, transfers and conveys to the Client all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Client on and from creation.

Digital Marketing Agency’s duty to assist the Client

10.3 The Digital Marketing Agency must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Client’s title to any Relevant IP, in Australia or in such other countries as the Client may require at its discretion.

Permitted use

10.4 The Digital Marketing Agency may use or reproduce any Relevant IP or any other Intellectual Property Rights in connection with the provision of the Services and performance of its duties under this agreement.

Moral rights

10.5 The Digital Marketing Agency consents to the doing of any acts, or making of any omissions, by the Client or any of the Client's employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:

(a) not naming the Digital Marketing Agency as the author of a Work; or

(b) amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Digital Marketing Agency is not named as the author of the amended or modified Work,

whether those acts or omissions occur before, on or after the date of this agreement.  The Digital Marketing Agency acknowledges that its consent is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent. 

11. Liability and remedies

Indemnity

11.1 Subject to 11.2, the Client indemnifies holds the Digital Marketing Agency harmless from and against, any and all Losses that may be suffered by the Digital Marketing Agency and which arise, directly or indirectly, in connection with   any negligent or other tortious conduct of the Client in seeking the provision of the Services, including, without limitation, any inaccurate or misleading instructions to the Digital Marketing Agency.

11.2 To the maximum permitted by law, the Client’s aggregate liability to the Digital Marketing Agency arising out of or in connection with this agreement (whether under contract, in tort, under statute or otherwise at law or in equity) will in no event exceed an amount equal to the actual monetary amounts paid to the Digital Marketing Agency.

Indemnities continuing

11.3 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

11.4 To the maximum extent permitted by law, the Digital Marketing Agency and its Representatives expressly:

(a) (Disclaimer of warranties)  disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.  Without limitation to the foregoing, the Digital Marketing Agency and its Representatives make no representation, and provide no warranty or guarantee, that:

(i) in addition to clauses 9.1 and 9.9, the Client will achieve any particular results or Return on Investment (ROI) from the provision of the Services;

(ii) any particular individuals will perform the Services on behalf of the Digital Marketing Agency; or

(iii) the Services will be:

(A) error-free or that errors or defects will be corrected; or

(B) meet the Client's requirements or expectations; and

(b) (Limitation of liability)  limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Digital Marketing Agency under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Digital Marketing Agency's sole discretion):

(i) re-supply of the Services;

(ii) payment of the costs of supply of the Services by a third party; or

(iii) the refund of any amounts paid by the Client to the Digital Marketing Agency under this agreement in respect to the Services,

even if the Digital Marketing Agency has been advised of the possibility of such Losses, and the Client acknowledges and agrees that the Digital Marketing Agency holds the benefit of this clause 11.3 for itself and as agent and trustee for and on behalf of each of its Representatives.

Force majeure

11.5 To the maximum extent permitted by law, the Digital Marketing Agency and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Digital Marketing Agency under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Digital Marketing Agency and the Digital Marketing Agency shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Digital Marketing Agency holds the benefit of this clause 11.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

11.6 If the Client fails to make payment in accordance with this agreement, or if the Client becomes insolvent, the Digital Marketing Agency may (at its discretion and without limitation)

(a) suspend the Services until such time as all tax invoices have been paid; and/or 

(b) cancel any provision of the Services to the Client.

11.7 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement) or clause 13 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs.  Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.

Exclusion of liability

11.8 No party will be liable to the other party for any loss of business, loss of profit or revenue, loss of opportunity, indirect and consequential loss suffered or incurred by the other party arising out of or in connection with this Contract.

Proportionate liability

11.9 A party’s liability under this agreement in respect of any claim or Loss or otherwise shall be reduced proportionally to the extent that the other party is responsible by reason of any breach of contract, negligence or other tortious or unlawful act or omission by that other party.

Obligation to mitigate loss

11.10 Despite the indemnities provided in this agreement, without prejudice to any other rights or remedies, each party must take reasonable steps to mitigate any Loss it suffers or incurs under or in connection with this agreement. The amount a party may recover shall be reduced to the extent it fails to take such.

12. Termination

Termination for breach

12.1 The Digital Marketing Agency may terminate this agreement immediately by notice to the Client if an Event of Default occurs in respect of the Client.

12.2 If the Digital Marketing Agency commits any material or persistent breach of this agreement, the Client may (but is not obliged to) provide the Digital Marketing Agency with a notice of breach in writing.  If the Digital Marketing Agency fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Client may terminate this agreement with immediate effect upon providing the Digital Marketing Agency with a further notice of termination in writing.

Termination with notice

12.3 The Client may, without limitation to its rights under clause 12.2, but subject to clause 2.2, terminate this agreement at any time by giving at least 30 days’ notice to the Digital Marketing Agency.

12.4 The Digital Marketing Agency may, without limitation to its rights under clause  12.1, terminate this agreement at any time by giving at least 30 days’ notice to the Client.  The Client may waive all or part of such notice period.

Effect of termination

12.5 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:
(i) the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and
(ii) the Digital Marketing Agency will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect thereof. 

During notice period

12.6 In the event that the Digital Marketing Agency’s engagement under this agreement is terminated upon notice by either party the Client may, at its absolute discretion, require the Digital Marketing Agency to refrain from providing the Services during the relevant notice period.

Partially completed deliverables

12.7 Upon the cessation of the Digital Marketing Agency’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, the Digital Marketing Agency will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.

Accrued rights

12.8 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

12.9 The obligations of the parties under clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 13 (Non-solicitation) and this clause 12 will survive the termination of this agreement..

13. Non-solicitation

13.1 During the Digital Marketing Agency's engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Digital Marketing Agency's prior written consent (which the Digital Marketing Agency may withhold or delay in its absolute discretion), directly or indirectly:
(i) (non-solicitation suppliers)  interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Digital Marketing Agency and any of the Digital Marketing Agency's suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
(ii) (non-solicitation of staff)  induce, encourage or solicit any of the Digital Marketing Agency's officers, employees, contractors or agents to cease their employment, engagement or Digital Marketing Agency with the Digital Marketing Agency.
13.2 The Client acknowledges and agrees that:
(i) the restraints in clause 13.1 constitute several separate covenants and restraints consisting of each of clauses 13.1(a) and (b) combined with each separate Non-Solicitation Period severally;
(ii) each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Digital Marketing Agency's goodwill and business;
(iii) the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
(iv) breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Digital Marketing Agency's goodwill and business and would lead to substantial loss to the Digital Marketing Agency.
13.3 The parties intend the covenants and restraints under clauses 13.1 to operate to the maximum extent.  If any of those separate covenants and restraints would, in the absence of this clause 13.3, be void as unreasonable for the protection of the interests of the Digital Marketing Agency but would not be so void if any part of the wording in this clause 13 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.

14. Notices

14.1 A notice given to a party under this agreement must be sent to the email address of the relevant party as the relevant party may notify to the other party from time to time. 
14.2 To prove service, it is sufficient to prove that in the case of email – the email was transmitted to the party’s email server or internet service provider.

15. General

15.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.
15.2 This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
15.3 All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.
15.4 This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.
15.5 If a provision of this agreement is invalid or unenforceable in a jurisdiction:
(i) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
(ii) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
15.6 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.
15.7 This agreement may not be varied except by written instrument executed by all of the parties.
15.8 A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.
15.9 This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
15.10 Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
15.11 If a party delivers an executed counterpart of this agreement under clause 15.10:
(i) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
(ii) in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.
15.12 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
15.13 The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).