Terms of Trade
This is a legal document setting out the terms and conditions upon which Just Boost Digital will provide services to you. Please read it carefully.
Agreement means an agreement for professional services (including the recitals, schedules, annexures and exhibits to it), as may later be amended or supplemented by the Parties in writing;
Assignment means the project, work, or content described in the Proposal.
Audio/Photo/Video Media Release/Waiver means an agreement for the capture, recording, and use of audio recordings, photographs, and video recordings (including the recitals, schedules, annexures, and exhibits to it), as may later be amended or supplemented by the Parties in writing. This includes, but is not limited to, the use of the Media for marketing, advertising, educational, training, public displays, and internal use, granting a non-exclusive, royalty-free, perpetual, and worldwide license to the Company, and waiving any rights to inspect, approve, or receive royalties from the use of the Media. The Participant also releases the Company from any claims, damages, or liabilities arising from the use of the Media.
Business Day means Tuesday to Friday, excluding public holidays;
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, a claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained or immediate, future or contingent;
Client Intellectual Property means pre-existing Intellectual Property of the Client used in but not created as part of the development of the Deliverables by the Consultant, including the look and feel of the Client’s website;
Commencement Date means the date specified as such in item 2(a) of the Schedule, or if not specified in that place, the date of execution or signature (as the case may be) by the last Party to execute or sign (as the case may be) this Agreement;
Competitor of the Client means any third party that does or intends to develop, manufacture, promote, sell, licence, distribute or provide products or services that are substantially similar to the Client’s products or services;
Completion Date means the date specified in item 2(b) of the Schedule or as otherwise agreed;
Confidential Information means information that:
(a) is by its nature confidential;
(b) is designated by any Party as confidential; or
(c) a Party knows or ought to know is confidential, and includes
(a) information of, or about, any entity in the Client, including financial information and other reports or records of or relating to the Client and its operations, acquired by the Consultant solely by virtue of the performance of the Services pursuant to this Agreement;
(b) information created, discovered, developed or made known to the Consultant by the Client during the period of, or arising out of, the Consultant’s performance of the Services;
(c) trade secrets, procedures, designs, processes, inventions and marketing information of either Party;
(d) matters of a technical nature, research and development details, financial statements, books and records, details of asset holdings, liabilities, planning, management, marketing and promotional procedures, quotations, concepts, methods, Customer information, systems, databases, and all sources of computer hard and software either Party;
(e) information relating to either Party’s customers and the consultants, including lists of customers and the Consultants, details of contracts and dealings with customers, the Consultants and other parties; and
(f) any other information classifiable in equity as confidential information;
Content means any and all material, including links, words, and images.
Defect means any performance characteristic of a deliverable that makes the whole or any part of the deliverable materially inoperable, unable to meet the project specifications, or materially inconsistent with them. Defective has a corresponding meaning;
Deliverables mean an item, whether module development, software, website design, documentation, data migration services or otherwise, to be delivered or supplied by the Consultant under this Agreement, including those items specified in the Project Specifications;
Deliverables Acceptance Date means the date on which the Client must give notice to the Consultant confirming acceptance of the Deliverables as provided or, if any Defects are located, give notice for the Consultant to rectify such Defects;
Expenses mean any expenses incurred by the Consultant in performing the Services;
Fee means the price for the Assignment or project agreed upon in the Proposal.
Force Majeure means any event beyond the reasonable control of the Party affected and includes any event due to natural causes that happen independently of human intervention;
GST means any tax, levy, charge or impost levied on the value of any facilities, Deliverables, services or other things supplied by the Consultant to the Client under this Agreement by any other Bill or Act of the Parliament of the Commonwealth of Australia;
Intellectual Property means:
(a) copyright;
(b) all rights conferred under statute, common law or equity in relation to inventions (including patents);
(c) registered and unregistered trademarks;
(d) registered and unregistered designs;
(e) circuit layouts;
(f) confidential information; and
(g) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
Material means any material, whether tangible or intangible, and includes:
(a) documents, records, equipment and any other Deliverables; and
(b) software (whether in human or machine-readable form), data and any other information;
Payment means the fees payable to the Consultant for Services performed as referred to in item 4(a) of the Schedule;
Project Specifications means the Project Specifications as referred to in selected item 3 of the Schedule;
Proposal means the outline of our Services for your Assignment or project.
Services means the social media marketing services outlined in the Proposal and any other services that may be agreed upon in writing from time to time.
Social Media Manager means the person who is engaged and agrees to perform the social media marketing Services for the Client.
Taxes means all taxes imposed by any government or authority of Australia or elsewhere, including, but not limited to, all income tax, PAYG tax, capital gains tax, stamp duty, financial institution duty, Customer tax, payroll tax and GST;
Tax Invoice means an invoice that has been submitted to the Client and:
(a) the amount claimed in the tax invoice is due for payment pursuant to this Agreement;
(b) the tax invoice complies with the requirements of the GST law;
Term means the period from the Commencement Date to the Completion Date unless otherwise terminated earlier by either party pursuant to Clause 9 of this Agreement;
Termination Payment means the fees payable by the Client to the Consultant on termination of this Agreement pursuant to Clause 9, as calculated under item 4(c) of the Schedule;
Third Party Materials means textual, graphical, audio, or like materials, together with any software, that are incorporated into Deliverables;
Third Party Rights means Intellectual Property Rights owned by or licensed to third parties, including:
(a) computer programs owned by third parties and licensed by the Consultant and any subcontractors of the Consultant to develop Deliverables; and
(b) any literary, dramatic, artistic and/or musical works owned by third parties and licensed to the Consultant for inclusion in a deliverable;
Third-Party Software means any computer program or modification or enhancement of a computer program, which is not owned by the Consultant or a related corporation of the Consultant and which is used by the Consultant in connection with performing the Services, or which is at any time supplied to the Client by the Consultant or its subcontractors or incorporated into a deliverable;
Work Product means the finished product, as well as any drafts, texts, graphics, photos, videos, designs, visual elements, trademarks, code, and anything else that the Consultant works on, conceives, creates, designs, develops, invents, or reduces to practice as part of this project.
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1.1.
The Social Media Manager agrees to provide the Services in a professional manner and in accordance with generally accepted industry practice and standards. Any specific terms and requirements, relating to the Services required by the Client, must be agreed in writing and notified to the Social Media Manager in advance.
1.2. The scope of the Services will be limited to the description provided in the Proposal and as agreed in writing from time to time. Similar or equivalent Services may be substituted from time to time if, in the sole opinion of the Social Media Manager, it would benefit the Client or be required to meet these Terms.
1.3. The Fee for Services may be a one-off fee or may be an ongoing monthly or annual fee in accordance with the Proposal. If the Fee is ongoing, by providing the Social Media Manager with your payment or credit card details, you authorise payments to be made on a recurring basis, until the full payment has been made or until cancellation or termination of Services in accordance with these Terms. It is your responsibility to keep your contact and payment details up to date. If the Social Media Manager does not receive prompt payment in accordance with the Proposal and these Terms, the Social Media Manager has a right to immediately suspend the Services.
1.4. The Client acknowledges that the Social Media Manager may be reliant on the provision of certain information to enable the Services to be performed. Any late delivery of information or Content by the Client to the Social Media Manager may result in a delay to finalisation of any Assignment, as the Social Media Manager may have blocked their time out for other work and clients.
1.5. The Content and Services will be managed by the Social Media Manager. In the event there are inappropriate, illegal, defamatory or other potentially damaging comments or issues involving any Client social media account, that arise during the course of the provision of the Services, the Social Media Manager will use their professional judgement and discretion to remove any such comments as soon as reasonably possible. The Social Media Manager will then consult with the Client to make them aware of such comments and obtain advice from the Client on any further action. The Client acknowledges and agrees that the Social Media Manager may not be held responsible for any direct or indirect loss or damages, including special or consequential, which may arise as a result of any such comment or action taken by the Social Media Manager.
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2.1. The Client warrants that any Content provided to enable the Services to be performed is either owned by the Client or the Client has the license to use and republish the Content. The Client further indemnifies the Social Media Manager against any and all claims, including by the Client or any third party for the use of this Content as part of the Services.
2.2. The Client acknowledges that the Social Media Manager will require the right to access Client social Media accounts (‘Accounts’) and passwords to enable the Services to be performed. As part of the Services, the Social Media Manager may upload posts and images on the Accounts, engage with users on the Accounts, as well as edit, add and remove content from time to time.
2.3. The Client agrees to indemnify and reimburse the Social Media Manager for all pre-agreed costs that may be incurred during provision of the Services, including but not limited to any advertising campaigns with a maximum agreed advertising spending.
2.4. The Social Media Manager will provide the Client with regular reports on the Assignment and results of the Services.
2.5. The Client acknowledges that the Services are provided without any warranties or guarantees including any increase in traffic, business, sales or any particular result.
2.6. The Client may edit the Content produced from the Services as they deem appropriate for publication or any other use after the Assignment has been provided by the Social Media Manager. The Social Media Manager cannot be held responsible for how, where or the manner in which the Client may use the Content.
2.7. The name of the Social Media Manager must not be listed as author on any Content or work resulting from these Services, unless agreed in writing by the Client and the Social Media Manager.
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3.1. While the Social Media Manager makes all efforts to ensure that the Assignment is proofread, grammatically accurate and factually referenced where applicable, there is no guarantee that every Assignment is completely free from typographical, grammatical or factual errors. In addition, as the Assignment and Services are based on the materials and information provided by the Client, the Social Media Manager is not responsible for errors in the Assignment or projects related to the Assignment after approval of the Assignment by the Client.
3.2. The Social Media Manager cannot control where and when any Assignment may be posted, published, amended or otherwise used by the Client and, for this reason, the Client agrees the Social Media Manager is not responsible for any Assignment or Content after being provided and approved. The Client will indemnify the Social Media Manager for any direct or indirect claims in relation to use of the Assignment.
CONFIDENTIALITY
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4.1. Confidential Information may be disclosed to the Social Media Manager by the Client from time to time to enable provision of the Services and includes any written or oral information, provided by or disclosed directly or indirectly through any means, that is not already in the public domain.
4.2. The Social Media Manager shall exercise due care not to disclose Confidential Information to any third party without express written permission of the Client and will only use the Confidential Information in order to enable provision of the Services.
4.3. Despite anything contained in this clause, the Social Media Manager may disclose Confidential Information to the extent required by law or a regulatory authority.
4.4. During the term of this Assignment and after its termination, all information concerning fees, payment arrangements, Terms and any other information disclosed by the Social Media Manager, shall be treated as Confidential Information by the Client.
WARRANTIES AND ACKNOWLEDGEMENTS
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5.1. The Social Media Manager warrants the following:
- Any Content provided by the Social Media Manager will be original and unique work and will not knowingly breach any third party rights.
- The work performed to provide the Services will be done to a high standard in accordance with best practice.
- The scope of the Services will be limited to the description provided in the Proposal, these Terms and as may be agreed in writing from time to time.
- They will provide all relevant information required for the Social Media Manager to carry out the Services in a timely manner.
- They will supply the outline for the work and Services and any research material that the Social Media Manager may require to complete the Services, including any person to be available to respond to queries or additional information that the Social Media Manager may require to finalise the Assignment.
- They warrant that any Content provided to the Social Media Manager by the Client will not breach any third party rights and the Client will remain responsible for any action or claims that may arise as a result of the use of this Content.
- All work is completed based on and in accordance with the Client’s instructions.
5.2. The Client acknowledges the following:
LIMITATION OF LIABILITY AND INDEMNITY
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6.1. Legislation may confer certain rights, warranties, guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law. At no time are these statutory rights sought to be excluded.
6.2. Except for your statutory rights, all services are provided to you without warranties of any kind including but not limited to implied warranties of merchantability or fitness for a particular purpose.
6.3. The Client agrees to indemnify and hold the Social Media Manager harmless from and against all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including settlement costs) or associated expenses (including legal fees) resulting from written or published material produced for the Client, or arising in connection with any information or material supplied by the Client, or from any act or thing done on the Client’s instructions or with the Client’s approval.
6.4. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
INTELLECTUAL PROPERTY (‘IP’) AND OWNERSHIP
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7.1. Subject to full payment of invoices by the Client, all ownership and IP in content of the Assignment and Services belongs to and vests in the Client. Any outstanding work, Assignments and Services remain the property of the Social Media Manager and may not be used, altered, redistributed or published by the Client until payment in full has been made and received by the Social Media Manager.
7.2. Any templates created by Just Boost Digital may be used, altered, or published by the Client. They may not be used for redistribution by the Client unless a written request is sent, approval is received, and a fee is paid to release all ownership and IP.
7.3. Templates created by Just Boost Digital, all ownership and IP belong to Just Boost Digital. Just Boost Digital may redistribute templates created for Client.
IMAGES, GRAPHICS AND LOGOS (‘IMAGES’)
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8.1. Generally, any Images required for any Content of the Assignment is to be provided by the Client. The Client takes full responsibility for ensuring their imagery is correctly licensed by a third-party designer, employee or freelance contractor for the purposes of the intended use or is otherwise owned by the Client.
8.2. If the Client is unable to prove that a valid license exists and was purchased, the liability of any infringement will fall on the Client. Any third party claims are to be managed by the Client.
8.3. From time to time, the Client may request the Social Media Manager to provide Images as part of the Services. All Images, materials and work is provided without warranties of any kind, both express and implied. In the event of any such request by the Client for Images, the Client agrees to pay any additional fees for licensing or use as may be incurred and invoiced by the Social Media Manager.
8.4. As a consequence of engaging the Services, the Social Media Manager has the right and permission to use the Client’s name and logo for their own business promotional and advertising purposes. If the Client does not wish to have their name and logo used for such purposes, they agree to inform the Social Media Manager in writing of such refusal and the Social Media Manager agrees to remove any reference to the Client in relation to their business and Services.
INVOICES, PAYMENT AND CANCELLATION
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9.1. The Client agrees to pay all invoices by the date specified in the invoice or, where recurring payments have been agreed, as per the Proposal. Any late, overdue or unpaid invoice amounts will incur penalty interest at the interest rate stated in the invoice or otherwise at an annual rate of 1.5% pro rata.
9.2. To cancel the Services, the Client must provide a minimum of thirty (30) days written notice to the Social Media Manager to ensure there is no additional charge for the following month. In the event of cancellation of the Services by the Client, all outstanding payments and Fees become immediately due and payable.
9.3. As the Social Media Manager has set aside time for completing the work, and once the Services have been provided, all monies are non-refundable. Any cancellation of work or Assignment, once confirmed by the Client, will forfeit any deposit.
9.4. In the event that the Client fails to pay any invoices in accordance with the terms of the invoice, these Terms or does not perform its obligations under these Terms, the Social Media Manager may refuse to continue to provide the Services and may terminate the Assignment immediately without notice. The Social Media Manager may also commence proceedings to collect any outstanding debts owed.
AUDIO/PHOTO/VIDEO MEDIA RELEASE/WAIVER
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10.1. You grant permission to Just Boost Digital Pty Ltd and its employees to use images, video, and audio taken of you or your business. These materials may be used in educational, documentary, and commercial materials such as Public Service Announcements, Grant Applications, Video Documentaries, Commercial Television, printed and online newsletters, and newspapers. Furthermore, you authorise the use of your images, likeness, and voice for all program promotion, materials, and any other purposes in connection with the program deemed appropriate and necessary by Just Boost Digital Pty Ltd.
10.2. You agree to release, defend, and hold harmless Just Boost Digital Pty Ltd and its agents or employees, including any firm publishing and/or distributing the finished product in whole or in part, whether on paper, via electronic media, or on websites, from any claim, damages, or liability arising from or related to the use of the photographs/video, including but not limited to any misuse, distortion, blurring, alteration, optical illusion, or use in composite form, either intentionally or otherwise, that may occur or be produced in taking, processing, reduction, or production of the finished product, its publication, or distribution.
10.3. You confirm that you are 18 years of age or older and fully understand the contents, meaning, and impact of the release.
10.4. You understand that you are free to address any specific questions regarding this release by submitting those questions in writing prior to signing, and you agree that your failure to do so will be interpreted as a free and knowledgeable acceptance of the terms of this release.
10.5. Note: If you do not want your photos, videos, or any content created by Just Boost Digital Pty Ltd to be used in any form of advertising, please send an email to support@justboostdigital.com advising that you do not wish for us to use your business in any form of advertising with Just Boost Digital Pty Ltd.
DISPUTES
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11.1. If at any time, any aspect of the Services is not reasonably acceptable to the Client, or there is a disagreement at any time on the Services, the Client will notify the Social Media Manager of the specific reasons and will provide a reasonable amount of time to address any issues raised. If after this period the Client is not satisfied with the results or both parties agree to terminate the Services, the Social Media Manager will stop work and will be paid up to and including all finalised work. Once full payment has been made, the Social Media Manager will ensure that they transfer all proprietary ownership for all work that has been paid for.
11.2. In the event of any dispute on the work, quality or ownership that cannot be resolved, the Client and Social Media Manager agree to obtain an independent professional arbitrator to make a determination on the dispute and each party agrees to pay their own costs.
RELATIONSHIP
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12.1. The relationship under these Terms is that of principal and independent contractor. At no time is the Social Media Manager a partner, agent, employee or joint venture partner of the Client. No act or omission of either party is to bind the other party except as expressly set out in these Terms.
GOVERNING LAW
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13.1. This Agreement is governed by the laws from time to time in force in the State of the registered business location of the Social Media Manager. Both parties agree to unconditionally submit to the Courts of this State or Territory, in Australia, for determining any dispute concerning this Agreement.
