These Terms and Conditions that follow form the Agreement (“the Agreement”) between the you (the Client) and Annie Murray t/as Annieography (ABN 82 925 871 946). No other terms and conditions or other documents are relevant unless expressly acknowledged and referenced in or attached this document.
TERMS AND CONDITIONS
1. APPOINTMENT, INTERPRETATION & DEFINITIONS
1.1 In this Agreement, unless otherwise indicated by the context the words defined in the Schedule and in clause 12 apply.
1.2 This Agreement sets out the terms and conditions on which Annieography will provide the Services to the Client.
1.3 Annieography is an independent contractor and is not for any purpose a partner, joint venturer, servant, agent or employee of the Client.
2. THE PARTIES’ REPRESENTATIVES
Each party represents that its Key Contact is authorised to exercise the duties, discretions and powers vested in them under this Agreement. Each party may rely on the representations given by the Key Contact as that party’s position. Either part can at any time by notice change its Party Representative.
3. SUPPLY OF SERVICES
3.1 The Client agrees to appoint Annieography to deliver the Services on the terms set out in this Agreement.
3.2 Annieography agrees to supply the Services to the Client:
(a) exercising all due care, skill and judgement;
(b) in an efficient and professional manner;
(c) in accordance with all applicable laws;
(d) in a way that promotes the Client’s image and reputation; and
(e) in a manner that does not harm the Client or bring the Client (and/or its employees, directors or associates) into disrepute.
3.3 The Client acknowledges and agrees that Annieography provides the Services on as is basis.
3.4 The Client grants all authority required to Annieography in order to carry out the Services. Annieography acknowledges that it does not have the authority to bind the Client or act as the Client’s agent.
3.5 The Client agrees to provide all reasonable assistance to Annieography to enable it to deliver the Services including providing Annieography with appropriate incorporation, identification, promotional and marketing material in relation to the client’s business upon request.
4.1 The Client agrees to pay the Fee to Annieography in accordance with this Agreement.[VM2]
4.2 In the event that the Client has opted to pay the Fee upfront, the Client agrees that the Fee will be immediately debited from the credit card provided.
4.3 In the event that the Client has opted to pay the Fee in monthly instalments, the Client agrees that the Fee will be debited monthly on the date specified by Annieography and advised to the Client from the credit card provided in equal instalments (Instalment Payment Dates). The Client will ensure that adequate funds are available in the account of the credit card provided on each of the Instalment Payment Dates.
4.4 Annieography agrees to provide the Client with a tax invoice for the Fee upon request.
4.5 In the event that the Client does not pay the Fee in accordance with this Agreement, Annieography reserves the right to suspend delivery of the Services until such time as all outstanding amounts have been paid to Annieography.
4.6 Upon reasonable request by the Client and provision of evidence that the Client has completed the work required for Annieography to deliver the Services to the satisfaction of Annieography at its absolute discretion, Annieography agrees to refund the Fee to the Client in the period that is 30 days after the Client’s acceptance of these Terms and Conditions (30 Day Period). The Client’s change of mind in relation to its want or need for the Services will not be considered a reasonable request.
4.7 The Fee is not refundable under any circumstances after the expiry of the 30 Day Period.
5.1 Unless otherwise stated, all amounts payable under this Agreement are expressed to be inclusive of GST.
5.2 Both parties acknowledge that if GST applies to a taxable supply made under this Agreement the party to which the taxable supply is made must pay GST on that taxable supply, in addition to any consideration (excluding GST) that is payable for that taxable supply. It must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply.
6.1 Notwithstanding the expiry or termination of this Agreement, no party to this Agreement will disclose to any third party any Confidential Information without the party to which the information relates prior written consent.
6.2 If any party is required by law to disclose any information which would be deemed Confidential Information, it should do so, provided that as soon as reasonably practicable before making a disclosure, that party informs the relevant party of the intended disclosure.
6.3 The Client must not use any Annieography Confidential Information for its own benefit (or the benefit of any third party) or to the detriment of Annieography. The Client acknowledges that any breach of this clause will result in Annieography suffering loss and damage and the Client indemnifies Annieography for such loss and damage including any costs that Annieography incurs to enforce its rights under this Agreement.
7. INTELLECTUAL PROPERTY
7.1 The ownership of any Intellectual Property Rights produced as a result of this Agreement shall vest solely in Annieography immediately on its creation.
7.2 The Client agrees that Annieography is not liable for any Loss that the Client may incur or suffer, as a direct or indirect result of a breach by Annieography of the Intellectual Property Rights of a third party in connection with this Agreement.
7.3 The Client grants to Annieography a perpetual royalty free licence to use any and all Intellectual Property Rights belonging to the Client that Annieography requires in order to deliver the Services.
7.4 The Client also grants to Annieography a perpetual royalty free licence to use the Client’s trademark, logo or branding in the promotion and marketing of the association between the Client and Annieography. This licence survives the termination or expiry of this Agreement.
7.5 In the event that the client provides a testimonial about the Services to Annieography directly or on a social media platform operated by Annieography (Testimonial), Annieology may use the Testimonial in whole or in part together with the first name of the person submitting it for marketing or other purposes.
7.6 The Client indemnifies Annieography for any and all Loss that Annieography may incur or suffer as a direct result of a breach by the Client of the Intellectual Property Rights of any third party in connection with this Agreement including the licences granted in clause 7.4.
8. TERM AND TERMINATION
8.1 This Agreement commences on the date that the Client accepts these Terms and Conditions until terminated in accordance with this Agreement.
8.2 Any party may terminate this Agreement at any time by providing one (1) month written notice to the other party.
8.3 Without prejudice to any other rights, remedies or liabilities, the Agreement may be immediately terminated by any party upon written notice if:
(a) any other party becomes incapable of continuing by reason by death, bankruptcy, or insolvency (as defined by the Corporations Act); or
(b) any other party is in breach of this Agreement and fails to remedy the breach within 7 days of notice requiring it to do so.
8.4 Without prejudice to any other rights, remedies or liabilities, the Agreement may be terminated immediately by Annieography if the Client breaches this Agreement and Annieography considers that the breach cannot be remedied.
8.5 Any clause of this Agreement that makes provision for continued operation or is intended to survive expiry or termination of this Agreement will survive the expiry or termination of this Agreement.
8.6 Upon termination or expiry of this Agreement all amounts owing by the Client to Annieography become immediately due and payable to Annieography.
The Client indemnifies Annieography against any loss or damage reasonably incurred or suffered by Annieography arising out of the Client’s breach of this Agreement or any negligent act or omission of the Client in respect of this Agreement.
10. DISPUTE RESOLUTION
Without prejudice to any right of a party to institute proceedings in a court of competent jurisdiction, any dispute between the parties shall, in good faith, first be sought to be resolved by negotiation between each party’s Key Contact. If the dispute is not resolved within 30 days from the referral to the Key Contacts (or within some other period which the Key Contacts all agree is appropriate), the parties may pursue their rights at law.
11. TRANSFER OR ASSIGNMENT
No party may transfer, assign, mortgage, charge or encumber all or any part of this Agreement without the prior written approval of all parties to this Agreement.
12. INTERPRETATION & DEFINITIONS
12.1Expect where the context requires to the contrary and as set out in the Schedule, the following definitions apply to the interpretation of this Agreement:
Confidential Information means all information relating directly or indirectly to any party to which any other party has access, and includes information that is by its nature is confidential, information and information that the disclosing party knows or ought to know is confidential including but not limited to the business performance, strategy and processes of a party.
Fee means the amount to be paid by the Client to Annieography in exchange for the Services.
GST means goods and services tax as imposed by the GST law.
GST Law includes A New Tax System (Goods and Services Tax) Act 1999 and all associated legislation.
Intellectual Property Rights means all rights comprised in any patent, invention, copyright, design, trademark, eligible layout or similar right, whether at common law or conferred by statute, including the right to apply for registration in respect of those rights, and the rights to protect trade secrets, know-how and goodwill.
Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage.
Services means the service package selected by the Client and provided by Annieography.
12.2The variation or waiver of a provision of this Agreement or a parties’ consent to a departure from a provision by another party will be ineffective unless in writing executed by the party.
12.3Each party will do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.
12.4This Agreement may be executed in any number of counterparts which together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by all of the parties.
12.5If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
12.6This Agreement does not create a partnership, employment, fiduciary or any other relationship, except the relationship of contracting parties, between the parties. No party is liable for an act or omission of the other party.
12.7This Agreement is governed by the laws of Victoria. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.
12.8In this Agreement, unless otherwise indicated by the context:
(a) capitalized terms have the meanings set out in this clause 12.1 or the Schedule;
(b) words importing the singular include the plural and vice versa;
(c) headings are for convenience only and do not affect interpretation of this Agreement; and
(d) a reference to a clause or, paragraph or schedule is a reference to a clause or, paragraph or schedule of the Agreement.