For the provision of services set out in our statement of work (SOW) and any related or incidental services or functions required to perform those services (together, the Services) by Datisan Pty Ltd ACN 622 804 228 (we/us/our).
These Standard Terms (Terms) and our SOW form the basis of our agreement with you (Agreement) and are our offer of Services to you.
You accept our offer if after receiving our SOW you:
- confirm your acceptance of it; or
- request that we perform work or provide information detailed in it to you.
- Our SOW may take different forms and may also be made up of separate parts, which are to be taken as joined and to form one single instrument.
- Where our SOW specifies a ‘scoping’ component, we reserve the right to unilaterally adjust future work components in the SOW, because our immersion in the matter, provided such adjustments are reasonable.
- You must tell us immediately if you disagree at any time with anything contained in our SOW or if you think we have misunderstood your instructions. If you do not let us know, we will continue carrying out the work as per the SOW.
- If there is any inconsistency between these Terms and our SOW, our SOW will prevail to the extent of that inconsistency.
- You may request variations to the SOW at any time.
- Where we agree to your variation request, we will update our SOW in writing to reflect the change which will then be deemed to form part of this Agreement.
- Our SOW will detail who will be responsible for the delivery of our Services and their contact information.
- You must assign:
- a contract administrator to manage your receipt of the Services. You warrant that the contract administrator has your authority to make decisions regarding the Services and this Agreement on your behalf.
- a financial controller to make payments to us on your behalf as required under this Agreement. You warrant that the financial controller has authority to make such financial decisions on your behalf.
5.1 Provision of Services
Our Services are provided:
- in accordance with these Terms and as set out in our SOW; and
- in a professional manner with due care, skill and diligence.
5.2 Digital marketing
- Where our SOW includes digital marketing services, we will prepare a campaign plan containing the following information:
- an outline of the campaign concept;
- informed estimates of the costs and activities which we reasonably anticipate;
- an outline of the anticipated advertising schedule which will align with any associated media budgets you have provided; and
- any other relevant information relating to the Services you request that is within the scope we have provided.
- You may make reasonable changes to the campaign plan before you agree to it, but must provide written reasons for your change requests before they will be adopted.
- Subject to the SOW, You may reasonably vary the volume of digital marketing services you wish to receive from us from time to time upon provision of written notice to us.
- We will only access your premises, facilities and systems for purposes approved in advance by you.
- Where we access your premises or facilities we must comply with:
- all applicable health safety and environment (HSE) laws and relevant HSE policies that you have provided to us; and
- any reasonable HSE directions or requests you give.
- You must ensure that our contractors, agents, staff and related parties (Personnel) are appropriately inducted, trained and supervised in relation to:
- HSE risks associated with provision or performance of our Services from your premises or facilities; and
- procedures required to manage those risks.
- You must immediately notify us of any incidents that occur in relation to our Personnel during the provision of the Services at your premises or facilities.
5.4 Your responsibilities
- To enable us to properly perform the Services in accordance with this Agreement, you must promptly provide us with reasonable access to:
- information, assistance, data, resources, records and materials; and
- your Personnel that we need to interact with.
- You acknowledge that our SOW assumes that:
- the information you provide to us will be accurate, complete, not misleading and will not cause us to infringe the intellectual property rights of a third party; and
- you will comply with your obligations under (a).
- We will take reasonable steps to mitigate and minimize delay on our part and the impact such delay may cause.
- If we become aware of any delay (or likely delay) in delivery, we will endeavor to promptly notify you of the details of the delay and provide an estimate of any additional time reasonably required to complete.
- Subject to clause 17.7, if you fail to adhere to any due dates or otherwise protract our delivery of Services, resulting in our designated Personnel being under utilised, any additional costs incurred by us will be your responsibility.
7.1 We may subcontract
We may in our sole discretion subcontract any part of our works to a third party without notice to you and without your consent.
7.2 Standards for subcontractor
We will use our best endeavours to ensure that subcontractors engaged in the performance of the Services:
- are competent and professional;
- are bound by intellectual property and confidentiality provisions equivalent in effect to those in this Agreement;
- have the qualifications and experience necessary to ensure full and proper performance of the duties allocated to them in accordance with this Agreement; and
- do not breach or cause us to breach any of our obligations under this Agreement.
8. Third party solutions
- As part of our Services we may recommend, install, implement, train resell and/or support third party software solutions (Solutions).
- You acknowledge and agree that:
- you have had a reasonable opportunity to obtain, read and understand the license terms and conditions relating to your use of any such Software Solution (Solution Agreement);
- you are solely responsible for:
- your compliance with the Solution Agreement; and
- all fees and costs relating to your access and use of the a Solution; and
- we will not be responsible for any loss suffered by you because of interruptions or malfunctions with the a Solution.
9. Intellectual property
In this clause:
Deliverable means any graphics, software, diagrams, material, work or document we are required to complete for you under the SOW and that is specified in the SOW as a deliverable.
IPR’s means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets together with any documentation relating to those rights but excluding moral rights.
Project Materials means any methodologies, tools, ideas, processes, documents (including working proofs), customer lists and databases, sales leads, software (including source code and object code versions), diagrams, plans, instructions, drawings, reports, designs, concepts, techniques, know-how and any other material created, developed, modified or adapted by us, during the course of the performance of the Services or in connection with this Agreement excluding the Deliverables.
9.2 Intellectual property rights
Unless otherwise specified in the SOW:
- Each Party retains all right, title and interest in and to its pre-existing IPR’s.
- All right, title and interest in the IPR’s in the Deliverables vest in and are assigned to you upon the payment of all fees owing to us under this Agreement.
- You grant us an revocable, royalty free, world-wide license to use and exploit the IPRs in the Deliverables provided they are not sold to another party that is in or could foreseeably be in competition with you.
- We own all IPR’s in the Project Materials.
- We grant you an irrevocable, royalty free, world-wide license to use and exploit the IPRs in the Project Materials strictly for your own internal business’ purposes (Purpose).
- We will ensure that all moral rights that exist in the Project Materials are waived, but such waiver will only be to the extent that the IPRs in the Service deliverables are used for the Purpose.
- For the avoidance of doubt nothing in these Terms prohibits us from using our IPR’s to provide the Services to third parties, even if they are the same or substantially the same as those provided to you.
10. Fees, charges and payments
10.1 Initial deposit
We may require you to make payment of an initial deposit, in accordance with our SOW, before we commence the provision of our Services. The initial deposit will be applied by us to Services rendered, following the issue of our invoice/s to you.
10.2 Hourly rates
Unless otherwise set out in the SOW, all Services we provide will be charged in accordance with the rates set out in our SOW.
10.3 Fixed fee
Services we provide on a fixed fee basis will be subject to our assumptions (clause 5.4(b)), any other provisions of this Agreement and will be provided strictly in accordance with the scope detailed in our SOW, as reasonably determined by us in our sole discretion.
10.4 Additional work
- Any additional work that has not been specifically detailed in our SOW will be charged in accordance with clause 10.2.
- Subject to a varied SOW being agreed to under clause 3 additional work that is considered by us to be new work (i.e. not included in original scope), will amount to a minimum charge of 2 hours.
Any costs and reasonable out-of-pocket expenses which are necessary to provide our Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you regarding the incurring of the Expense. We will submit documentation and evidence as is reasonably required by you to verify the Expenses that have been incurred.
We will invoice you as per our SOW or where it does not specify, each calendar month that we provide Services. We will ensure each invoice:
- contains sufficient detail to enable you to identify the Services provided and corresponding fees;
- is emailed to your nominated email address; and
- complies with applicable GST laws.
- You must pay us all fees outlined in our invoice in the manner reasonably nominated without set-off, counter-claim, holding or deduction.
- Subject to clause 10.8, if you fail to pay any of our fees in accordance with sub-clause (a), we may charge you:
- for all costs and expenses incurred by us in recovering our outstanding fees from you; and
- compound interest at a rate of 10% per annum on the overdue amount which will begin accruing on the first day that payment is overdue.
10.8 Disputed fee
- If you dispute the whole or any portion of the amount claimed in an invoice, you must pay the portion of the invoice which is not in dispute (in accordance with clause 10.7) and provide notice to us within 7 days of receipt of the invoice of your reasons for dispute.
- Upon receipt of your disputed invoice notice, we will within a reasonable time provide you with evidence substantiating the invoice and addressing your reasons of dispute, to enable a prompt and amicable resolution.
- If the dispute cannot be resolved within 7 days of our substantiation under sub-clause (b), the dispute must be referred to the dispute resolution procedure in clause 12.
- Unless otherwise expressly stated in our SOW, all amounts payable to us under this Agreement are exclusive of GST.
- If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST. That amount is equal to the value of the supply calculated in accordance with the A New Tax System (Goods and services Tax) Act 1999 (Cth) multiplied by the prevailing GST rate.
11. Confidentiality and data protection
In this clause and in clause 15:
Confidential Information means information that is by its nature confidential and:
- is designated by a party as confidential;
- is described in the SOW as confidential; or
- a party knows or ought to know is confidential,
but does not include information that:
- is or becomes generally available in the public domain, other than through any breach of confidence;
- is rightfully received from a third person other than as a result of a breach of confidence; or
- has been independently developed by a party without using any Confidential Information of the other.
Customer Data means all data, information, text or other materials embodied in any electronic or tangible medium which relate to your business or your customers and which you supply to us, or make available to us, under this Agreement.
11.2 Recipient must keep Confidential Information confidential
Each party must:
- keep confidential all Confidential Information;
- only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
- procure that its Personnel comply with sub-clauses (a) and (b).
11.3 Disclosure exceptions
The obligations in sub-clause 11.2 do not apply:
- to the extent necessary to enable a party to make any disclosure required by law;
- to the extent necessary to enable a party to perform its obligations under this Agreement;
- to any disclosure agreed in writing between the parties; or
- in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
11.4 Use of client’s details
You agree that we may publish your details on our website or other advertising medium representing you as our client for the purposes of advancing our own publicity provided we comply with the confidentiality obligations contained in clauses 11.2 – 11.3.
If we deal with any personal information, we must:
- comply with all applicable privacy laws in Australia; and
- not do any act, engage in any practice, or omit to do any act or engage in any practice that would cause you to breach any Australian privacy law.
11.6 Use of Data
- You grant us a licence to use Customer Data for the purposes of providing the Services to you.
- You agree that the Customer Data will be error free and that we are not responsible for any loss suffered as a result of the data containing errors, bugs or other defects.
- You acknowledge and agree that we are not liable for any data loss or corruption caused by third-party software except to the extent that any data loss or corruption is caused by our act or omission.
11.7 Data Security Requirements:
If we deal with any of your Customer Data, we must:
- comply with those policies relating to data security you have provided to us along with any reasonable requirements you make from time to time;
- treat your Customer Data as Confidential Information;
- implement, maintain and enforce reasonable technical and organisational measures to protect the Customer Data from any misuse, loss, interference unauthorised access, modification or disclosure;
- implement measures enabling you to access the Customer Data while it is in our possession or control;
- provide any of the Customer Data to you promptly following your request;
- if any of Customer Data is lost, destroyed, corrupted or altered in connection with the provision of the Services, take all practicable measures to immediately restore that data;
- immediately notify you if we become aware of any suspected or actual misuse or loss of, interference with or unauthorised access to, modification of or disclosure of, the Customer Data or any personal information (a Data Breach) or if we are required by law to disclose any of the Customer Data for any reason;
- comply with any reasonable direction from you with respect to remedying or addressing a Data Breach;
- inform and co-operate with you in the event of any risk regarding the security of Customer Data;
- ensure that our Personnel who have access to the Customer Data comply and agree to comply with this clause to the same extent as us; and
- comply with any additional data security requirements set out in the SOW.
- If a dispute (Dispute) arises between the parties to this Agreement which they cannot resolve, then the party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute (Dispute Notice).
- During the period of 10 business days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties to the Dispute (Participants) must meet in good faith in an attempt to resolve the Dispute.
- If the Participants cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, the Participants must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. All Participants must participate in the mediation in good faith.
- The mediator must be agreed on by the Participants within 10 business days after the Dispute Notice is given to the Participants and if they cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.
- The mediation concludes when:
- all the Participants agree in writing on a resolution of the Dispute; or
- a Participant, not earlier than 20 business days after appointment of the mediator, has given 5 business days’ notice to the other Participants and to the mediator, terminating the mediation, and that 5 Business Days has expired without all the Participants agreeing in writing on a resolution of the issue.
13.1 Exclusion of other Terms
- Subject to sub-clause (b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
- Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to the provision of the Services again (including providing the Service deliverables again) or the payment of the cost of having the Services supplied again.
13.2 Limit of liability
- a. Subject to clause 13.2(c), unless otherwise required by law, or as set out in this Agreement, our liability for damages arising from any breach of this Agreement or any issue with the Services we have provided in relation to it, in contract, tort or equity is limited to the amount paid by you to us under it.
- b. Subject to clause 13.2(c), to the maximum extent permitted by law, we will not be liable or responsible for any loss of profit, loss of contract, loss of goodwill, loss of opportunity or any other consequential loss incurred by you or any other person whether directly or indirectly related to our engagement under this Agreement.
- c. Any limitations set out in clauses 13.2(a) and 13.2(b) above, do not apply to our liability for damages arising from any breach of our obligations under clause 11, which in contract, tort or equity is limited to an amount of $5,000,000.00.
14. Mutual Indemnity
Each party agrees to indemnify the other party, and to keep the other party indemnified against any claim, loss, damage, liability, cost or expense that may be incurred by the other party arising from or in connection with:
- any breach or default of these Terms by the indemnifying party;
- a negligent act or omission by the indemnifying party or by a party it is responsible for;
- the indemnifying party’s failure to comply with any law; and/or
- the failure of a party the indemnifying party is responsible for in complying with any law.
15. Term and termination
These Terms commence on the date of your acceptance under clause 1 and continue until all Services specified in the SOW are completed and all payments owed to us are received.
15.2 Termination for breach
- If either party breaches any of these Terms and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 20 business days (Breach Notice).
- If a breach has not been rectified within 20 business days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
- If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this engagement immediately by notice in writing to the party in breach.
15.3 Consequences of termination
- Following termination you must:
- promptly pay all Expenses that have been incurred by us to date in accordance with sub clause 10.5 and all outstanding fees in accordance with sub clause 10.7; and
- return or delete all of our Confidential Information that has been provided to you during the provision of our Services.
- Following termination we must:
- promptly assist with the transfer any Software Licenses to you that are in our name or on our account;
- refund you the balance of any money that you have paid in advance, once we have set-off all of our outstanding fees and expenses; and
- return or delete all of your Confidential Information (including Customer Data) that has been provided to us during the provision of our Services, except where reasonably required for quality assurance or insurance purposes.
Any notice given under or in connection with this engagement:
- must be in legible writing and in English;
- must be addressed to a party’s contact address as shown on the SOW or as otherwise notified by a party to the other party from time to time;
- must be:
- delivered to that party’s address;
- sent by pre-paid mail to that party’s address;
- transmitted by facsimile to that party’s address; or
- sent by email to that party’s email address; and
- will be deemed to be received by the addressee:
- if delivered by hand, at the time of delivery;
- if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting;
- if sent by facsimile, on the business day on which the notice is received by the recipient’s facsimile receiving facility, and a correct and complete transmission report is received; or
- if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
17. General matters
In the Agreement:
- headings are for convenience only and will not affect interpretation of this Agreement;
- words in the singular include the plural and words in the plural include singular, according to the requirements of the context;
- a reference to a legislation or other law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them;
- a reference to any of the words “include”, “includes” and “including” is read as if followed by the words “without limitation”; and
- terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context otherwise requires.
17.2 Survival and essential terms
- Clauses 8, 10, 11, 12, 13, 14, 15.3, 17.5, 17.10and 18 are taken to survive this Agreement.
- Clauses 5, 8, 9, 10 and 11 are essential terms of this Agreement.
Any amendments to these Terms must be made in writing or if agreed verbally between us, must be confirmed in writing within a reasonable time after such verbal agreement.
- Subject to sub-clause 17.4(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
- You agree that if we are acquired or if we otherwise merge or amalgamate with another company or, business:
- or otherwise, we may transfer your matter, including all materials, personal information, confidential information and ideas supplied by you, to that other company, business or other entity, provided they agree to be bound on terms equivalent to those contained in this Agreement.
- You also hereby consent to us assigning, novating or transferring any of our rights or obligations under these Terms.
17.5 Further assurances
Each party must promptly do all further acts and execute and deliver all further documentation reasonably requested by the other party to give effect to the contemplations of this Agreement.
Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under these Terms. To be effective any consent under these Terms must be in writing.
17.7 Force majeure
A party will not be liable for any failure or delay in the performance of its obligations under the Agreement to the extent that such failure or delay:
- is caused by a circumstance not within the reasonable control of the party; and
- could not have been reasonably avoided, prevented or circumvented by the party.
- Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
- Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party.
- No waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
This engagement is governed by the law in force in the State of Queensland and each of us submit to the non-exclusive jurisdiction of the courts of Queensland.
Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which shall remain in force.
You acknowledge that:
- you have read, understood and agreed to be bound by the Agreement;
- you have received and will retain your own copies of these Terms and our SOW; and
- you have been informed by us that you should seek independent advice in relation to these Terms prior to accepting our offer of Services.