Client terms and conditions.

1Definitions

Agreement means the Contract, and these Terms relating to the supply of Services.

Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth).

Contract means the proposal document which describes the Services we will provide you.

Corporations Act means the Corporations Act 2001 (Cth).

Developed IP means all Intellectual Property Rights which are developed or created by us in the course of performing the Services.

Force Majeure means an event or circumstance beyond the reasonable control of the party claiming force majeure, including but not limited to an act or omission of a third party, acts of god, riot, war, strikes, labour disturbances, epidemics, pandemics or disease. For the avoidance of doubt, a Force Majeure event will include a global pandemic such as COVID-19.

GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Law has the same meaning as in the A New Tax System (Products and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all present and future copyrights, patents, trade marks, designs, semiconductor or circuit layout rights, trade secrets, know how, the right to have confidential information kept confidential, and any other intellectual or industrial property rights, whether registered or not, recognised anywhere in the world, together with the right to seek or obtain registration or renewal of any such rights.

our IP means all Intellectual Property Rights which are legally and beneficially owned by us.

Paused Services means Google ‘Adwords’ and/or any social media services including without limitation services related to Facebook, Instagram, Snapchat, Twitter and LinkedIn.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Service Fees means the fees payable by you under this Agreement as set out in the Contract.

Services means the services we have agreed to provide you under this Agreement as outlined in the Contract or these Terms.

Terms means these terms and conditions as may be reasonably amended or updated by us in order to protect our legitimate business interest from time to time.

we, us or our means ZIB Production Pty Ltd (ACN 646 187 680) and our successors and assigns.

you or your means the person(s) who have accepted these Terms and your has a corresponding meaning.

your IP means all Intellectual Property rights which are legally and beneficially owned by you.

2When these Terms apply

1. 2.1

   These Terms apply to and form part of the Agreement between the parties relating to the supply of our Services.

2. 2.2

   In the event of any inconsistency between the Contract, these Terms, and any other written agreement between you and us relating to the provision of Services, these Terms will prevail to the extent of the inconsistency.

3Assignment, subcontracting and agency

1. 3.1

   You acknowledge that we are part of the ZIB group of companies and to efficiently operate the ZIB network, enhance our customer experience and/or flexibility restructure where it would be in our legitimate commercial interest, we may from time to time transfer, assign, subcontract or delegate any of our rights and obligations under this Agreement,, including our obligation to provide the Services to you, to an associated entity (including a Digital Partner or related company) without your prior written consent, provided that nothing in this clause of itself may cause a derogation from the provision of Services.

2. 3.2

   Acting reasonably, we may appoint a third party as our agent for the purposes of invoicing and collecting payment of any amounts due under this Agreement. Such third party may enforce all rights, powers and entitlements granted to or conferred on us under this Agreement in relation to payment.

4Commencement and Term

1. 4.1

   This Agreement commences on the earlier of:

   1. (a)

      the date on which you confirm your acceptance of the Contract (whether by email or otherwise); or

   2. (b)

      the date on which you sign or otherwise confirm that you agree to the terms of this Agreement.

2. 4.2

   This Agreement will continue for the initial term set out in the Contract, unless it is terminated earlier in accordance with clause 16 of these Terms. If no term is specified in the Contract, then this Agreement will continue for an initial term of six months.

3. 4.3

   At the end of the initial term where no subsequent term has been entered into, this Agreement will continue on a month-to-month basis, subject to an annual increase to the Service Fees to current market rates or10% increase unless and until:

   1. (a)

      a subsequent term is agreed to between the parties prior to the expiry of the initial term or any relevant subsequent terms;

   2. (b)

      One party provide the other party with sixty days’ notice that it wishes to terminate this Agreement; or

   3. (c)

      this Agreement is terminated in accordance with clause 16.

5Our Obligations

1. 5.1

   We will use all reasonable endeavours to ensure that the Services are provided to you:

   1. (a)

      in accordance with the terms of this Agreement;

   2. (b)

      using all reasonable care and skill; and

   3. (c)

      in a manner which:

      1. (i)

         complies with all applicable laws;

      2. (ii)

         is timely and efficient; and

      3. (iii)

         is not intentionally prejudicial to your interests or reputation.

2. 5.2

   You acknowledge that certain Services may be provided to you through third parties such as Facebook or Google. While we will use all reasonable endeavours to ensure that such Services comply with the terms of this Agreement, you acknowledge and agree that we have no control over those third parties. Accordingly, we cannot:

   1. (a)

      be responsible for any decisions, instructions or changes made by the third party; or

   2. (b)

      guarantee that the Services will achieve any stated or expected outcome or result.

3. 5.3

   Our obligations under this Agreement are owed solely to you. We do not accept any responsibility to any third parties who may be affected by the performance of our obligations, except as expressly agreed by us in writing.

6Your Obligations

1. 6.1

   You must:

   1. (a)

      provide all information reasonably required by us to provide the Services to you;

   2. (b)

      pay all amounts due under this Agreement on or before the due date for payment;

   3. (c)

      pay all amounts due to any third party advertising provider on or before the due date

   4. (d)

      allow us to provide the Services during the initial term (and any subsequent terms) without any interruption from you, except as may be provided on reasonable written notice to us, in this Agreement or by law to the contrary;

   5. (e)

      provide any reasonable assistance to us as may be requested from time to time when providing the Services;

   6. (f)

      comply with all reasonable requests from us in connection with the Services or for the purposes of this Agreement; and

   7. (g)

      otherwise comply with the terms of this Agreement.

2. 6.2

   You must not use any of the Services:

   1. (a)

      for any purpose which is improper or unlawful;

   2. (b)

      in a manner which operates as a breach of any applicable laws, confidence, privacy or of any third party rights, including Intellectual Property Rights; or

   3. (c)

      to post, share or transmit any material that is defamatory, obscene or otherwise objectionable.

7Variation to the Services

1. 7.1

   The Services to be provided to you are as described in the Contract and may only be varied or altered with our prior written agreement, acting reasonably.

2. 7.2

   If we agree to vary the Contract or the Services at any time during the term of this Agreement, acting reasonably, all Service Fees and any other expenses and disbursements relating to Services provided prior to the variation will remain due and payable by you. The cost of any variation to the Services will be as agreed by you and us (acting reasonably) and will form part of the Service Fees once agreed.

3. 7.3

   We are not required to provide you with any Services or perform any obligation which falls outside the scope of this Agreement unless we expressly agree to do so.

8Service Fees

1. 8.1

   Unless otherwise agreed by us in writing, the Service Fees:

   1. (a)

      are in Australian dollars; and

   2. (b)

      do not include GST.

2. 8.2

   In addition to the Service Fees, you must reimburse us for any expenses and disbursements we reasonably and properly incur:

   1. (a)

      in connection with the performance of the Services; and

   2. (b)

      as otherwise agreed by you in writing in advance of the expenses and/or disbursements being incurred.

9Terms of payment

1. 9.1

   The initial invoice for the Service Fees and any other applicable expenses and disbursements shall be issued upon the execution of this Agreement. Subsequent invoices shall be issued monthly thereafter throughout the term of this Agreement, unless otherwise specified in this Agreement or agreed between the parties in writing acting reasonably.

2. 9.2

   You must pay us the Service Fees, together with GST and any other expenses and disbursements:

   1. (a)

      at the time specified in the relevant invoice, or if no such time is specified, within five business days of the date of the invoice;

   2. (b)

      in accordance with the payment method(s) specified in the Contract, or such other payment method we deem to be acceptable (acting reasonably); and

   3. (c)

      without any set-off or deduction of any kind without our prior written consent, which shall not be unreasonably withheld.

3. 9.3

   If you authorise payments to be made by credit card, debit card or direct debit, then we may draw payments as and when those payments fall due without further notice to you, unless you expressly withdraw or vary your authorisation in writing.

4. 9.4

   If you elect to pay by one of the methods described in clause 9.3, you must ensure that all account and/or card information you have provided to us remains valid until all Service Fees, GST and other expenses and disbursements have been paid. If any such information changes or expires before this time, you must as soon as practicable before the next billing date for the Services notify us of the new or updated information.

5. 9.5

   If you elect to pay via invoice, there may be an administration fee of $25 per invoice to cover our reasonably incurred costs to process the invoice. We may pass on to you any reasonable third party costs of payment processing we incur for payments you make to us. This includes, without limitation, any bank cheque processing fees and credit or debit card surcharges.

6. 9.6

   If any payment you make is dishonoured or rejected, including for reasons connected with a lack of available funds or using an invalid or unacceptable payment method, and we incur any fees or charges as a result, you must reimburse us for those fees and charges immediately on demand by us.

7. 9.7

   If any payment is not received by the due date for payment, then without prejudice to any other rights we may have, we may:

   1. (a)

      charge default interest on the amount overdue at the rate of 3% per month or any part thereof; and

   2. (b)

      suspend the performance of all Services, including any email accounts, websites, domains and hosting accounts,

   until payment has been received in full (whether before or after judgment). Default interest will not be charged where payment is outstanding for less than two business days, or an event has occurred beyond your reasonable control to prevent payment.

10GST

1. 10.1

   In this clause 10, words and expressions used which are defined in the GST Law have the same meaning given to them in the GST Law.

2. 10.2

   Any consideration to be paid or provided for a supply made under or in connection with this Agreement does not include an amount of GST (GST Exclusive Consideration), unless it is expressly stated in this Agreement to be inclusive of GST.

3. 10.3

   If any supply by one party (Supplier) to another party (Recipient) under or in connection with this Agreement is a taxable supply, then the amount due to the Supplier for that supply will be the sum of:

   1. (a)

      the GST Exclusive Consideration; and

   2. (b)

      the amount of GST payable by the Supplier in respect of that supply (the GST Amount).

4. 10.4

   The Recipient’s obligation to pay the GST Amount is subject to the Supplier first providing to the Recipient a tax invoice conforming with the requirements of GST Law.

5. 10.5

   If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

6. 10.6

   A party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.

11Intellectual Property Rights

1. 11.1

   You acknowledge and agree that we may require the use of your IP for the purpose of performing the Services. Accordingly, you grant us a limited, irrevocable, worldwide, non-exclusive, royalty free licence to use your IP for the purpose of performing the Services and anything properly incidental to the performance of the Services.

2. 11.2

   All of our IP will remain our property. No rights, title or interests in our IP will be assigned to or vest in you unless we expressly agree in writing.

3. 11.3

   Notwithstanding clause 11.4, all of your IP will remain your property. No rights, title or interest in your IP will be assigned to or vest in us unless you expressly agree in writing.

4. 11.4

   You agree that all rights, title and interests in all Developed IP will vest in us absolutely on creation, unless otherwise agreed with us in the Contract or in writing.

5. 11.5

   Subject to clause 11.2 and to you complying with the terms of this Agreement, we grant to you a revocable, limited, royalty-free and non-exclusive licence to use our IP and any Developed IP, solely for the purpose of you obtaining the benefit of the Services, which will expire on the termination or end of this Agreement. For the avoidance of doubt, you may not use our IP and the Developed IP for any other purpose.

12Warranties

1. 12.1

   Both parties warrant that they have the necessary authority to enter into and to perform the obligations contemplated by this Agreement.

2. 12.2

   While we will use all reasonable care and skill in providing the Services to you, you acknowledge and agree that because of the technology involved, there may be unforeseen interruptions or errors. We do not warrant or guarantee that our Services will be uninterrupted or otherwise error-free, and we will not be liable to you for the consequences of any interruptions or errors except where we have acted with gross negligence or wilful misconduct, or such consequences have been directly caused by an act or omission of us or our employees or agents.

3. 12.3

   To the extent permitted by law, all guarantees, conditions and warranties (whether express, implied by law, or otherwise) are expressly excluded.

4. 12.4

   If and to the extent that any Services are provided to you for your business purposes, the provisions of the Competition and Consumer Act not apply.

13Liability

1. 13.1

   To the fullest extent permitted by law, neither party will be liable to the other for any consequential loss suffered by the other in connection with this Agreement or the Services. This includes, without limitation, any loss of anticipated profits, revenue, savings, loss of opportunity, pure economic loss or any other consequential, special or indirect loss or damage, and whether arising in contract, tort (including for negligence) or otherwise.

2. 13.2

   Zib’s maximum amount of liability to you arising out of any claim or remedy for a “minor failure” to which you may be entitled will be limited to, at our option:

   1. (a)

      the Service Fees in relation to the subject matter of the claim or remedy; or

   2. (b)

      the reperforming the relevant Services (if possible).

3. 13.3

   In the event of any claim, both parties must, in good faith, make all reasonable efforts to minimise the amount of any loss.

4. 13.4

   Nothing in this Agreement excludes any implied warranty or statutory guarantee that cannot be excluded at law, nor any remedies that you may have in relation to a “major failure”, as that term is defined in the Competition and Consumer Act.

14Representations

You agree that other than as disclosed to you in writing about the Services, you will not make any further representations or statements about the Services to any third party, and agree to indemnify us against any third party claims in respect of any other representations or statements you may make to any third party.

15Confidentiality and privacy

1. 15.1

   Both parties agree to hold in confidence all information concerning each other and each other’s affairs that is acquired during the term of this Agreement, including information relating to each other’s finances and commercial dealings. Both parties will only disclose confidential information if it is necessary or desirable to comply with the other’s instructions, to perform the Services, if it is required by law or if it has entered the public domain other than through the other’s actions.

2. 15.2

   You acknowledge that to enable us to provide the Services to you, we may collect and use information (including Personal Information).

3. 15.3

   You acknowledge that in performing any obligations or services under this Agreement you agree to comply (and to ensure that all of your employees, officers, agents and personnel also comply) with the National Privacy Principles and all related provisions of the Privacy Act 1988 (Cth) and all other applicable privacy laws in Australia in respect of all Personal Information collected, used, disclosed and otherwise handled by you or your employees, officers, agents and personnel under or in connection with this Agreement.

4. 15.4

   You authorise us to disclose information (including Personal Information) (acting reasonably) to third parties where those third have been engaged to:

   1. (a)

      provide Services to you;

   2. (b)

      invoice or collect any payment under this Agreement; or

   3. (c)

      carry out credit checks, obtain credit reports or collect debt,

   and the disclosure is reasonably necessary for the relevant purpose.

16Termination

1. 16.1

   Either party may terminate this Agreement immediately by written notice to the other party in the event that the other party:

   1. (a)

      breaches a material provision of this Agreement and:

      1. (i)

         the breach is not capable of being remedied; or

      2. (ii)

         the breach is capable of being remedied, but the other party fails to remedy that breach within seven days of receiving written notice requiring that the breach be remedied; or

   2. (b)

      ceases to carry on business; or

   3. (c)

      is subject to an Insolvency Event.

2. 16.2

   Either party may terminate this Agreement after the initial term or any subsequent term has ceased upon providing 60 days’ written notice to the other party.

3. 16.3

   You may terminate this Agreement during the initial term by providing us with seven days’ written notice. In the event you elect to terminate with seven days’ written notice, you will be required to pay up to an amount equal to 75% of the outstanding Service Fees as at the date of termination (Outstanding Service Fees).. The Outstanding Service Fees shall be calculated as the total Service Fees payable for the initial or subsequent term (as relevant) of the Agreement, minus the value of the Service Fees already provided and paid for by you as at the date of termination. For the avoidance of doubt, the Outstanding Service Fees will not be payable where either party terminates this Agreement after the initial or subsequent term in accordance with clause 16.2 or clause 4.3.

4. 16.4

   On termination of this Agreement for any reason:

   1. (a)

      you must immediately pay us:

      1. (i)

         all outstanding invoices;

      2. (ii)

         the Service Fees to the extent that the Services have been performed;

      3. (iii)

         if you have terminated pursuant to clause 16.2, the Outstanding Service Fees; and

      as at the time of termination;

   2. (b)

      all licences granted to either under this Agreement to use your IP, our IP and the Developed IP, will immediately cease.

5. 16.5

   Completion of the Services or the earlier termination of this Agreement will not affect the accrued rights or liabilities of either party nor will it affect the continuation in force of any terms intended to survive completion of the Services or termination, including clauses 13, 14 and this clause 16 of these Terms.

17Paused Services

1. 17.1

   You may pause the Paused Services upon 5 days’ written notice to us, for a minimum of one month (Paused Services Period) and maximum of 6 months.

2. 17.2

   You may not request a Paused Services Period within the first month of the Term.

3. 17.3

   During the Paused Services Period:

   1. (a)

      you must continue to pay 50% of the Services Fee;

   2. (b)

      all third party ad spend will be removed; and

   3. (c)

      you will not be entitled to a refund of any expenses, disbursements or Service Fees already paid by you.

4. 17.4

   To end the Paused Services Period, you must provide five business days’ written notice to us.

5. 17.5

   No accrued rights or liabilities of either party will be affected during the Paused Services Period nor will it affect the continuation in force of any terms intended to survive completion of the Services or termination, including clauses 13, 14, 16 and this clause 17 of these Terms.

18Force Majeure

1. 18.1

   Neither party will be liable to the other for you for any delay or failure in delivery or performance of any of its obligations under this Agreement where such delay or failure has been occasioned by an event of Force Majeure.

2. 18.2

   Where a Force Majeure event occurs, the non-affected party may, acting reasonably, extend the time for performance or waive performance any or all of the affected party’s obligations under this Agreement.

3. 18.3

   The affected party must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of a Force Majeure event.

4. 18.4

   If a Force Majeure event occurs for a period of in excess than 3 months, either party may terminate this Agreement by giving 20 business days’ notice to the other party claiming Force Majeure, without any prejudice to the rights of any party accrued prior to the date of termination.

19Dispute Resolution

1. 19.1

   If a dispute arises out of, or in relation to, this Agreement, both parties must meet in good faith and attempt to resolve the dispute. If the parties are unable to resolve the dispute, then either party may refer the dispute to mediation by notice in writing, with a mediator to be appointed by agreement within five business days of that notice, or failing agreement, by the President of the Law Institute of Victoria or his or her nominee.

2. 19.2

   Mediation shall be conducted in good faith, in the state of Victoria, Australia and in accordance with the relevant guidelines. We will share the costs of the mediator with you equally.

3. 19.3

   If a dispute has not been settled 14 days after appointment of a mediator or other timeframe as agreed in writing between the parties, either party may refer the dispute to litigation.

20General

1. 20.1

   Any amendments or modifications to this Agreement must be in writing and signed by an authorised representative of both parties.

2. 20.2

   A reference to any legislation in this Agreement includes a reference to any amended or substitute legislation and any regulations enacted under that legislation.

3. 20.3

   Each term of this Agreement is separately binding. If any term is held to be invalid, unenforceable or ineffective for any reason, the offending term will be deemed to be amended to the minimum extent required by law to be valid and binding, and the remaining terms will continue in full force.

4. 20.4

   If either party fails to enforce any provision of this Agreement, that will not be treated as a waiver of that provision, nor will it affect a party’s right to subsequently enforce that provision.

5. 20.5

   This Agreement is subject to, governed by and interpreted in accordance with laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia in respect of any dispute arising out of or relating to this Agreement.