Services Agreement (Terms and Conditions)
This Agreement terms and conditions apply to the provision of services by PUNCH digital ABN 90 596 268 500 (“Agency”) and you as the user and customer (“Client”).
This agreement with us (“Contract” or “Terms”) for each service or services including (but not limited to) search engine optimisation services, Google Ads and search pay per click services, social media management, social media paid adverting services, content services or web design & development (or variations of these).
1.1 Scope of work: Client does hereby retain and engage Agency to provide the services as agreed.
1.2 Performance of Services: The Agency agrees that it will perform the Services with the degree of skill, care and diligence expected of a service provider experienced in performing similar services; and in accordance with all reasonable directions given by the Client from time to time.
1.3 Time frames: While the Agency will use its best efforts to meet these time frames, it reserves the right to extend these time frames including where the Client does not meet its obligations or there is a change in requirements, provided that it will endeavour to keep the Client informed and updated of progress for all steps.
1.4 No Agency: The Agency is not the agent of the Client and it will not hold itself out as the agent of the Client in its dealings with third parties. The Agency will not incur any obligations or make any promise, contract, undertaking, warranty or representation on behalf of the Client otherwise than in accordance with this Agreement, or with the prior consent of the Client.
2.1 Term: This Agreement shall commence on the agreed date between the Client and the Agency and shall continue until such a time either party terminates the agreement, subject to any rollover and termination provisions in this Agreement.
2.2 Rollover: at the end of each month the Services will automatically rollover to the next month until such a time either party terminates the agreement.
2.3 Period of Performance: Either party may terminate this agreement upon 7 days-notice to the other. Refer section 12 Termination below. The duties of confidentiality shall remain in effect after termination. Cancellation fees may apply.
3.1 Remuneration: In consideration of the Services to be provided under this Agreement, the Client will pay the Agency as per the agreed monthly retainer (fees) for the agreed services as per supplied invoice(s).
3.2 Expenses: The Client will reimburse the Agency for all costs, expenses and disbursements incurred by the Agency on its behalf, or otherwise in the course of providing the Services (“Expenses”).
3.3 GST: Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as they are given in the said Act. If GST applies to any supply made under this Agreement, then the party making that supply may, in addition to any other amount payable in this Agreement, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate. Any GST amount payable under this Agreement is set out in the service fees.
3.4 Payment terms: Payment will be made to the Agency monthly by the Client via a nominated Direct Debit or Credit Card account (fees may Apply) for services provided.
3.5 Late/Default Payments: late payments will incur late payment fee calculated at the daily rate of 10% per annum. Late payment fees come into effect when an invoice falls 7 business days overdue from the payment date included on the invoice. At its discretion, the Agency may waive or reduce late fees based on agreeable payment terms being reached.
3.6 Debt Recovery Costs: In the event the Agency must take action to recover Service fees and/or expenses, all costs incurred by the Agency in recovering the debt including any legal fees and debt collection costs will be recovered from the Client. In addition to all other remedies, the Agency is entitled to cancel, block or refuse any and all Services until all outstanding payments are made in full.
3.6 Disputed amounts: If the Client disputes part or all of an invoice it must notify the Agency immediately in writing within 7 business days of receipt of the invoice clearly setting out the reasons for the dispute. If the Client does not dispute an invoice within 7 days of its receipt the Client will be deemed to have accepted the invoiced amount in full.
4. General Terms
4.1 Approvals: In the case of Project work, the Agency will provide cost estimates for each Project to the Client for approval via an Estimate or other written document including emails. Upon receipt of such written approval the Agency has the authority to commence the applicable Project. Written approval which can include emails must be received before the Agency proceeds with the Services, or takes out any applicable insurance.
4.2 Client Personnel: The Client must advise the Agency in writing of the Client’s project team members from time to time. The Agency is entitled to assume that the person who approved the Services Agreement, or any approval under this Agreement (whether or not a Client employee or agency acting on its behalf), had the authority to do so and is entitled to take this as a binding authority by the Client to proceed.
4.3 Ownership of Data: The Client will own Client’s Confidential Information. The Client will not own the Agency’s Confidential Information nor Intellectual Property.
4.4 Client Responsibilities: The Agency’s performance of the Services depends upon Client fulfilling its responsibilities in a timely and sufficient manner. The Client’s failure to perform the responsibilities could negatively impact the marketing activities.
(a) Client shall provide relevant information and feedback in a timely manner and in accordance with any project requirements.
(b) Client shall make its personnel available to actively participate in the project in a timely manner
(c) Client shall allow and provide access for the Agency or provide necessary resources to make reasonable updates or revisions to the Client’s websites (Websites) which the Agency believes may assist with the Client’s digital marketing.
(d) Client shall manage any third parties the Client employs and be responsible for any acts, omissions, or failures of those third parties.
(f) Client shall not modify, or permit any person other than the Agency to modify, any part of the social media management accounts, search engine marketing accounts, social media advertising accounts or Google Ads accounts at any time without formal approval from the Agency.
(g) To the extent any portion of the Services rely on any third party specifications or integration with any third party platforms and such third party platform or specification is changed during the course of the service delivery, the Client shall be responsible for any additional costs or expenses related to rectify issues with such changes.
4.5 External Factors: In addition to the Client’s responsibilities outlined above “Client Responsibilities”, the Client acknowledges that factors beyond the Agency’s reasonable control may affect the effectiveness of the Services, including but not limited to:
(a) Changes in search engine algorithms used by third parties to rank search results;
(b) Changes to third-party software, platforms or business models including but not limited to Facebook, Instagram, Google and YouTube;
(c) Websites or accounts being hacked into or infected with viruses;
(d) Instability of the facilities (including servers, modems and other networking equipment) used to store, host or deliver Websites and other accounts;
(e) The underlying code or structure on which existing Websites have been built.
4.6 Privacy: Save as otherwise provided in this Agreement, each party must comply with the Privacy Act 1988 (as amended by the Privacy Amendment (Private Sector) Act 2000), and any other applicable laws and codes dealing with privacy, in relation to any personal information:
(a) collected, handled, used for, or disclosed to, the other party in performing obligations in this Agreement; or
(b) used in any Deliverables produced under this Agreement
4.7 Tracking: The Client acknowledges that, in order to track the effectiveness of its Services, the Agency will place Tracking Code and/or Tags on the Client’s web pages. Ownership of Tracking Codes and/or Tracking Pixels linked to Agency Advertising Accounts used in the delivery of the Services remain the property of the Agency. The Agency expressly retains all right, title and interest in any tracking codes used as part of the Services, unless otherwise agreed to by the Agency.
4.8 Disclaimer: The Client acknowledges that the Agency has no affiliation with any search engines; and the Agency makes no guarantee, representation or warranty, express or implied, regarding search engines optimisation, search engine marketing and related optimisation activities and results from those activities.
4.9 Warranty and Acceptance: In the case of Deliverables provided under a Project:
(a) The Agency warrants that the Deliverables will be free from Defects during the period of 15 Business Days after delivery (“Warranty Period”). The Agency agrees that it will use all reasonable endeavours to remedy any Defect where the Client notifies it of same during the Warranty Period.
(b) The Client agrees that it will notify the Agency of the existence of all Defects in the Deliverables during the Warranty Period, in writing, in such a form as required by the Agency. The notice will usually require a detailed description of the Defect, the steps taken by the user prior to the Defect, the actual wording of any error notice and / or screen grabs.
(c) If the Client does not provide such notice during the Warranty Period, the Deliverables are deemed to be accepted.
5. Cancellation and changes
5.1 Services Cancellation and Change Costs: In the event of any cancellation of Services, the Client shall:
(a) pay the Agency within 7 days all amounts incurred in relation to the agreed Services for that month (monthly retainer), including any fees and expenses;
(b) pay the Agency any charges or costs payable by the Agency (including but not limited to non-cancellable third-party costs);
(c) where applicable, pay the Agency any cancellation/change fees; and
(d) indemnify the Agency against any Loss or Claim incurred or suffered by or brought or made or recovered against the Agency which arises as a result of or in connection with the Agency acting in accordance with the agreement.
5.2 Change Orders for Projects: At any time upon reasonable notice either party may in writing, initiate a change order (Change Order) to request a change to the scope of work. All proposed Change Orders and the implications of the proposed changes, including without limitation scheduling and pricing changes, will be discussed in good faith by the parties. The SOW may only be modified if both parties sign an agreed Change Order. Any change or cancellation will only be accepted by the Agency to the extent that this is permissible within the terms of any contracts between the Agency and any relevant third party. The Agency shall take all reasonable steps to comply with any such Change Order as soon as reasonably practicable, to the extent that the Agency can do so within its contractual obligations to suppliers or other third parties.
6. Intellectual Property
6.1 Client Material: The Client will own all Intellectual Property Rights in the Client Material. Nothing in this Agreement transfers any ownership rights in the Client Material to the Agency. The Client grants to the Agency (and to the relevant media vendors and publishers) a revocable, royalty free, non-transferable, non-exclusive license for the Term to use the Client Material solely for the purpose of providing the Services in accordance with this Agreement.
6.2 Pre Existing Works: The parties acknowledge that in connection with providing the Services it may be required or appropriate to use Pre Existing Works. The Agency will own all Intellectual Property Rights in the Pre Existing Works.
6.3 Deliverables: In the case of Deliverables provided as part of a Project, all Intellectual Property Rights in the Deliverables will be owned by the Agency. Subject to the payment of all applicable fees and expenses, the Agency grants to the Client a revocable, royalty free, non-transferable, non-exclusive licence to use the Deliverables, and to maintain and update the Deliverables, but only to the extent that they are being used to operate and run the Deliverables for the purpose for which they were provided. The Client will not modify, remove or obscure any notices on or in the Deliverable.
6.4 Code, files, accounts and software: All Intellectual Property in the Agency’s materials pre-existing and subsequently produced by the Agency in connection with the Services, other than the Clients pre-existing Intellectual Property, will remain owned by the Agency.
The Agency expressly retains all right, title and interest in any source or HTML code, make-up files, Agency proprietary software, other software, Agency advertising accounts, programs, tools, templates, tracking codes/pixels and systems used by the Agency or its contractors and agents in providing the Services. The Client acknowledges and agrees that it must not, and must not attempt to, access, copy, reproduce, republish, transmit, reverse engineer or otherwise access or use such source or HTML code, make-up files, software and systems without the express prior written consent of the Agency.
6.5 Self promotion: The Client hereby agrees that the Agency may use the Client Material or the Services material for self-promotional purposes including without limitation in show reels, portfolio, industry or agency internet material, award or competition submissions, internal training and historical archive.
7. Confidential Information
7.1 Confidentiality: Each party will ensure that any Confidential Information relating to the other party is treated as strictly confidential, and is not used or disclosed to any other person, other than:
(a) persons strictly requiring the information for the purpose of properly performing its obligations under this Agreement, including but not limited to contractors that the Agency may engage to provide the Services, provided that they are made aware of the obligations in this clause;
(b) with the other party’s prior consent;
(c) as required by law;
(d) to that party’s related body corporate if necessary for reporting purposes;
(e) to that party’s professional advisers in confidence; or
(f) where the information is generally or publicly available other than through a breach of this Agreement.
7.2 Survival: This clause survives termination of this Agreement.
8.1 Client Warranties: The Client represents and warrants that it will provide all information, Client Material, approvals, support and assistance which the Agency reasonably requires in providing the Services, and the Client Material is true, accurate, complete, not misleading and can be substantiated, and complies with any applicable laws, regulations and codes, and will not cause the Agency to breach any applicable law, regulation or code.
9.1 Client Indemnity: The Client will indemnify the Agency against any Loss or Claim arising from or relating to:
(a) the Agency complying with, obeying or acting in accordance with express directions, approvals or instructions issued or provided by the Client in connection with the provision of the Services;
(b) the Client Material;
(c) the products or services of the Client;
(d) a breach of this Agreement by the Client (which shall include failure to pay any amount due and payable by the Client under this Agreement by the due date); or
(e) a negligent act or omission by the Client.
9.2 Agency Indemnity: The Agency will indemnify the Client against any Loss or Claim arising from or relating to:
(a) a breach of this Agreement by the Agency; or
(b) a negligent act or omission by the Agency.
9.3 Survival: This clause survives termination of this Agreement.
10. Legal Liability
10.1 Agency Liability: the Agency is not liable for:
(a) failure to perform any Services, or for any other consequences, which arise directly or indirectly in connection with any delay (including a failure to provide timely approval) or act or omission of the Client.
b) any Deliverables breaching any law or infringing upon the rights of any third party arising directly or indirectly in relation to: (i) a modification made to the Deliverables without the Agency’s consent, (ii) Client’s use of the Deliverables with other materials not approved by Agency, or (iii) the Client’s use of the Deliverables for any purpose other than the purpose for which it was delivered by the Agency.
10.2 Consequential Loss: The Agency shall not be liable in any circumstances for any indirect, special, economic or consequential loss or damage suffered by the Client or any other entity including without limitation loss of income, profits, business, goodwill or data, or loss of anticipated savings.
10.3 Force Majeure: If, due to Force Majeure, the Agency fails or is unable to provide any Services or complete any task in the manner and within the time required by the terms of the Agreement or as otherwise agreed by the parties in writing, the Agency shall not be in breach of the Agreement, and the Agency shall not be held responsible for any loss or damage which may be incurred by the Client or any other person as a result of such failure. For as long as the Force Majeure continues, the obligations of the Agency under this Agreement which cannot be performed shall be suspended.
10.4 Limitation of Liability: to the full extent permitted by law, the Agency excludes all liability for costs, loss or damage suffered in connection with this Agreement. To the full extent permitted by law, and except as expressly provided in this Agreement, the Agency excludes all terms and conditions, warranties and representations, whether express or implied. Neither party makes any guarantees, representations or warranties, express or implied, as to the level of consumer response that shall result from the Services.
10.5 Maximum Liability: without limitation and subject to the terms of this Agreement, the maximum aggregate liability of the Agency to the Client in connection with this Agreement or the provision, supply, performance and/or supply of any Services, shall be limited to a sum equal to the maximum aggregate amount of the Service fees received by the Agency from the Client during the 1 months immediately preceding the event giving rise to the Agency’s liability.
11. Dealings with third parties
11.1 Third parties: the parties acknowledge and agree that:
a) in accordance with usual practice in the advertising and media industry, the Agency will be required to and may enter into contracts or incur contractual liabilities to suppliers in its own name;
(b) the Agency may, at its sole discretion, sub-contract to another party, including its Related Bodies Corporate (as defined in the Corporations Act 2001) or any person affiliated or associated with it to perform any of the Services, provided that the Agency will remain responsible for the performance of any third party sub-contractor to the Client; and
(c) as part of the Services the Agency may enter into contracts with third parties for licensing, hosting and other arrangements on the Client’s behalf. The Client warrants that it will comply with the terms of such agreements as if it were a party. The Client will be responsible for any costs incurred pursuant to such agreements and will indemnify the Agency for any breach insofar as this is caused by the Client.
12.1 Termination for Convenience: either party may terminate this Agreement by giving 7 days prior written notice to the other party for any reason. In the event of termination under this clause by the Client, the Client must pay all outstanding invoices and expenses within 7 days.
12.2 Termination for Cause: Either party may terminate this Agreement immediately by written notice if any of the following events occur:
(a) the other party becomes insolvent under administration as defined in the Corporations Act;
(b) any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for the winding up or dissolution of the other party or for the appointment of an administrator, receiver, receiver and manager or liquidator to the other party or any of its assets, or an administrator, liquidator, receiver, manager, or official manager is appointed to the other party or over part of its property;
(c) the other party resolves to enter into or enters into a scheme of arrangement or composition with, or assignment for the benefit of all or any class of, its creditors or proposes a reorganisation, moratorium or other administration involving any of them;
(d) the other party becomes unable to pay its debts when they fall due, is wound up, resolves to wind itself up or otherwise dissolve itself;
e) an event analogous to any of those set out in (a) to (d) above occurs; or(f) the other party commits a breach of this Agreement (which shall include failure to pay any amount due and payable by it under this Agreement by the due date) unless such breach can be remedied and such remedial action has commenced within 21 days of the breach being notified to the other party in writing.
12.3 Actions upon Termination: Upon termination of this Agreement:
(a) all non-completed work relating to Services and/or Projects will be terminated;
(b) the Agency will immediately cease to provide the Client with the Services, subject to any obligations of either party to discharge in full obligations in relation to the Services accrued prior to the date of termination;
(c) the Agency shall be entitled to all remuneration relating to any Services provided during the notice period and prior to the effective date of termination;
(d) the Client will assume any contracts entered into by the Agency on behalf of the Client pursuant to this Agreement prior to the effective date of termination, be responsible for costs or obligations arising under those contracts and indemnify the Agency for any Loss or Claim arising with respect to those contracts; and
(e) each party will return to the other party all Confidential Information of the other party and such other information and documentation which belongs to the other party and to which the other party is entitled under this Agreement or otherwise.
13. Resolving disputes
13.1 Resolving Disputes: the dispute resolution procedures in this clause will arise upon a party notifying the other parties in writing providing reasonable details as to the existence and nature of the Dispute and setting out the reasons for its dissatisfaction or claim of breach of the Agreement (“Dispute Notice”). The parties must use their best endeavours to settle the Dispute within 5 Business Days after service and receipt of a Dispute Notice. If the Dispute remains unresolved after this time, the respective parties must authorise a person or persons holding the required level of authority to meet within 5 Business Days to attempt to resolve the Dispute.
14. Non solicit
14.1 Non Solicit: during the Term, and for a period of one year thereafter, the Client will not solicit the employment of, employ, or contract with, any Agency current or former personnel with whom the Client had contact under this Agreement, either individually or through another party or employee. The Client will promptly notify the Agency of any communications with any Agency personnel seeking employment with the Client.
15.1 Governing Law: this Agreement and the transactions contemplated by this Agreement are governed by the law in force, in Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts of the State of Victoria.
15.2 Relationship: The relationship between the parties is that of independent contractors and nothing in this Agreement will be construed as giving rise to the relationship of principal and agent, trustee and beneficiary, joint ventures or partnership.
15.3 Assignment: A party may not assign its rights under this Agreement without the consent of the other party, other than as provided for under this Agreement.
15.4 Entire Agreement: This Agreement, together with any proposal and/or estimate documents or similar including emails from the Agency, constitutes the entire agreement of the parties about its subject matter and any previous agreements, understandings and negotiations on that subject matter cease to have any effect.
15.5 Waiver: A provision in or right created under this Agreement may not be waived except in writing signed by the party granting the waiver.
15.6 Variation: This Agreement may not be varied or amended unless in writing and agreed to by the parties.
15.7 Survival: Each indemnity in this Agreement is a continuing obligation and survives termination of this Agreement.
15.8 Severability: Any term of this Agreement which is fully or partly void or unenforceable is severed to the extent that it is void or unenforceable, and the remainder of this Agreement continues in force.
Service & Fees
Services – digital marketing services are customised for individual clients based on their requirements including business goals and budgets. As per 15.4 above, this Agreement, together with proposal and/or estimate documents or similar including emails from the Agency, constitutes the entire agreement of the parties about its subject matter.
Fees – Service fees will be determined as per individual client’s requirements. GST will be payable.
Agreement Terms – Services a billed monthly in advance or as otherwise agreed. Projects or development work are costed based on project by project basis.
Cancellation Fees – the Agency does not have cancellation fees for services. All outstanding invoices for service fees and expenses must be paid within 7 days of cancellation of the service. For Projects, all expenses as per the SOW must be paid within 7 days of cancellation.