This agreement sets out the terms under which Whitehat Digital Group Pty Ltd ABN 34661618097 (Whitehat Agency) provides services to you or the company you represent (the Client).
You will be taken to have accepted these terms and conditions if you sign these terms and conditions or otherwise indicate your assent, or if you order, accept or pay for any services provided by Whitehat Agency after receiving or becoming aware of these terms.
1. STATEMENTS OF WORK
These terms will apply to all the Client’s dealings with Whitehat Agency, including being incorporated in all agreements, quotations or orders under which Whitehat Agency is to provide services to the Client (each a Statement of Work) together with any additional terms included in such Statement of Work (provided such additional terms are recorded in writing).
In the event of any inconsistency between these terms and conditions and any Statement of Work the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms set out and described as such in a Statement of Work) will prevail over the other terms of this agreement to the extent of any inconsistency.
2. TERM OF AGREEMENT
This agreement commences on the Commencement Date specified in the Key Agreement Details and will continue until terminated earlier in accordance with this agreement (the Term).
In consideration for the payment of the Fees, Whitehat Agency will provide the Client with the services set out in a Statement of Work (Services).
Unless otherwise agreed, Whitehat Agency may, in its discretion:
- not commence work on any Services until the Client has paid any fees or deposit payable in respect of such Services; and
- withhold delivery of Services until the Client has paid the invoice in respect of such Services.
4. HOSTING SERVICES
If the Services to be provided by Whitehat Agency include services to host the Client’s website, application or other information or data (Hosting Services), the following terms apply unless otherwise specifically agreed in writing:
- (hosting location) The Client acknowledges that Whitehat Agency uses storage servers that may be located outside Australia.
- (service quality) While Whitehat Agency will use its best efforts to select an appropriate hosting provider, it does not guarantee that:
- the Hosting Services will be free from errors or defects; or
- the Hosting Services will be accessible or available at all times;
- (security) Whitehat Agency will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely, however Whitehat Agency does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) If Hosting Services include backups and disaster recovery, Whitehat Agency will use its best efforts to create scheduled daily backups of Client Data stored by Whitehat Agency. In the event that Client Data is lost due to a system failure (e.g. a database or web server crash), Whitehat Agency will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
- (maintenance) Whitehat Agency’s Hosting Services do not include troubleshooting, maintenance or fixing application or data-based failures and additional fees may apply for these sorts of services.
5. WEB DESIGN SERVICES
If the Services to be provided by Whitehat Agency include web development services, including building or customising websites or online applications (Web Apps), the following conditions will apply unless otherwise agreed between the parties in writing:
- Whitehat Agency reserves the right to determine the choice of programming language(s) used in the Web Apps;
- Whitehat Agency will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Web Apps;
- Whitehat Agency will not provide any graphics for the Web Apps, and if Whitehat Agency requires the Client to provide graphics, the Client must provide Whitehat Agency with graphic files in an editable, high resolution, vector digital format;
- Whitehat Agency only tests websites in desktop resolution in the following web browsers;
- Google Chrome latest 3 versions; Mozilla Firefox latest 3 versions and Microsoft Edge latest version for Windows browsers; or
- Safari latest version for Mac browsers.
- Whitehat Agency will not guarantee that any Web Apps will be mobile responsive. If Whitehat Agency does specifically agree to provide mobile responsive Web Apps, then it will test only on iOS Safari and Google Chrome on Android phones.
6. MOBILE APP DEVELOPMENT SERVICES
In relation to any Services involving web development services, including building or customising mobile applications (Mobile Apps) the following conditions will apply unless otherwise agreed between the parties in writing:
- Whitehat Agency reserves the right to determine the choice of programming language(s) used in the Mobile Apps;
- Whitehat Agency will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Mobile Apps;
- Whitehat Agency will not provide any graphics for the Mobile Apps, and if Whitehat Agency requires the Client to provide graphics, the Client must provide Whitehat Agency with graphic files in an editable, high resolution, vector digital format; and
- Whitehat Agency only tests Mobile Apps on iOS Safari and Google Chrome on Android phones.
7. SOFTWARE AND TECHNOLOGY DEVELOPMENT SERVICES
If the Services to be provided by Whitehat Agency include software and/or technology development services, including building or customising software and/or other technology (Technology), the following conditions will apply unless otherwise agreed between the parties in writing:
- Whitehat Agency reserves the right to determine the choice of any programming language(s) used in the Technology;
- Whitehat Agency reserves the right to determine the choice of any materials used to create the Technology;
- Whitehat Agency warrants that the Technology will work to any Specifications agreed by the parties, and excludes all other warranties, except those the Client is entitled to under the Competition and Consumer Act 2010 (Cth).
8. PAID ADVERTISING SERVICES
In relation to any Services involving cost-per-click advertising services such as Google Adwords, and Facebook Ads (Paid Advertising) the Client acknowledges and agrees that:
- Whitehat Agency makes no promise or guarantee regarding the effectiveness of any Paid Advertising;
- the effectiveness of the Paid Advertising may be affected by circumstances outside Whitehat Agency’s control including:
- the Client’s account that is used by Whitehat Agency to perform the Paid Advertising Services being cancelled or disabled on a temporary or permanent basis; or
- the platform that is used by Whitehat Agency to perform the Paid Advertising Services changes its functionality,
and Whitehat Agency will not be liable for any loss or damage suffered by the Client arising from such circumstances.
9. SEO SERVICES
In relation to any Services involving search engine optimisation (SEO Services), Whitehat Agency makes no promises or guarantees regarding the effectiveness of any SEO Services, but instead by using its professional skills aims to deliver an incremental improvement to the Client’s website traffic.
The Client acknowledges and agrees that the effectiveness of the SEO Services may be affected by circumstances outside Whitehat Agency’s control, including:
- changes in the policies and/or ranking algorithms of the search engines;
- changes to the Client’s account occasioned by a party other than Whitehat Agency; or
- the platform that is used by Whitehat Agency to perform the SEO Services changing its functionality,
and Whitehat Agency will not be liable for any loss or damage suffered by the Client arising
from such circumstances.
10. DIGITAL AD SPEND
- The Fees charged by Whitehat Agency do not include digital marketing ad spend amounts, and the Client will be responsible for paying these fees directly to the relevant platform.
- If requested by Whitehat Agency, the Client must provide Whitehat Agency with its credit card, direct debit or other financial details for the purposes of making digital advertising payments on the Client’s behalf.
- The Client consents to Whitehat Agency using the Client’s credit card, direct debit or other financial details on its behalf to make payments for digital advertising services and any other related services reasonably necessary for Whitehat Agency to perform the Services.
11. SUPPORT SERVICES
This clause applies if Whitehat Agency is required to provide support services to a Client:
- During the hours of 9:00am to 5:00pm, Whitehat Agency will use its best endeavours to perform the support services in accordance with the service levels in Table 1 (Service Levels).
- The Goal Response Timeframes are indicative only. The timeframes may not be met due to reasons beyond Whitehat Agency’s control or where the resolution requires replacement parts to be ordered.
|Priority||Goal Response Timeframe|
- The severity and priority of calls are classified as follows:
- Critical – an issue that affects more than one user and prevents a critical business function. There is no work around. Also affects single user but issue is likely to have an impact on business revenue;
- Standard – an issue that affects one or more users and is not critical to business operations; and
- Low – low priority issue or an issue where a workaround is available.
- Whitehat Agency will use its best endeavours to provide the Client with 8 hours prior notice of any planned downtime.
12. VIDEOGRAPHY SERVICES
Unless otherwise agreed in a Statement of Work, in relation to any Videography Services, the Client acknowledges and agrees to the following.
- the Client must obtain any necessary consent or permission and pay any fees which may apply for Whitehat Agency to film at a particular venue, location or event;
- the Client must obtain any necessary consent or permission and pay any fees which may apply to the hire of any talent, such as models, actors etc;
- While Whitehat Agency takes all reasonable care in creating the Video Material, Whitehat Agency will not be liable for any compensation except for the return of any deposit paid, should a failure occur in all or any of the electronic equipment used or due to illness of the operators or person(s) employed or engaged by Whitehat Agency or because of an unforeseen event or any dispute regarding the ownership of the Client Content or Video Material;
- The Client may purchase Raw Footage in viewable format for an additional fee of $3000 per day of recording. If the Client requires any Raw Footage to be provided by way of a separate hard disk, then the Client must pay Whitehat Agency an additional fee of $500;
- the Client acknowledges and agrees that it will not alter or manipulate any Video Material without Whitehat Agency’s written permission; and
- Whitehat Agency will retain the Video Materials for up to twelve (12) months only and will then dispose of the Video Material.
- Prices subject to change depending on requirements or circumstances
13. PHOTOGRAPHY SERVICES
Unless otherwise agreed in a Statement of Work, in relation to any Photography Services, the
Client acknowledges and agrees that:
- the Client must obtain any necessary consent or permission and pay any fees which may apply for Whitehat Agency to photograph at a particular venue, location or event;
- the Client must obtain any necessary consent or permission and pay any fees which may apply to the hire of any talent, such as models, actors etc;
- while Whitehat Agency takes all reasonable care in creating the Photographs, Whitehat Agency will not be liable for any compensation except for the return of any deposit paid, should a failure occur in all or any of the electronic equipment used or due to illness of the photographer/s or person(s) employed or engaged by Whitehat Agency;
- all Photographs will be delivered via an electronic download link in the form of JPG, PNG, TIFF, RAW or GIF.
- The Client may purchase the RAW Photographs for an additional fee of $250 per file. If the Client requires any RAW Photographs to be provided by way of a separate hard disk, then the Client must pay Whitehat Agency an additional fee of $500;
- the Client will not alter or manipulate any Photograph without Whitehat Agency’s written permission;
- if the Client requires additional copies of any Photograph after delivery, Whitehat Agency will provide such copiers at a fee of $125 per image; and
- Whitehat Agency will retain the Photographs for up to twelve (12) months only and will then dispose of the Photographs.
- Prices subject to change depending on requirements or circumstances
14. LIMITATION OF USE OF DELIVERABLES FOR PHOTOGRAPHY AND VIDEOGRAPHY
In relation to Videography Services and Photography Services, the Client agrees and warrants that it will only use any Deliverables, including any Photograph or Video Material, for the purpose and/or project specified in the Statement of Work and will not allow or encourage a third-party to use any such deliverables.
15. CANCELLATIONS OF PHOTOGRAPHY OR VIDEOGRAPHY SERVICES
- If the Client has engaged Whitehat Agency to provide Videography Services or Photography Services on a specified date, the Client may notify Whitehat Agency in writing (between 9:00am to 5:00pm) that the Client does not require the services to be provided on that date (Service Cancellation).
- If notification of the Service Cancellation is provided outside of normal business hours, it is deemed to have been provided at the commencement of the following business day.
- If the Service Cancellation is made more than 48 hours prior to the day on which Whitehat Agency has been engaged to provide the Videography Services or Photography Services, the Client must reimburse Whitehat Agency for any expenses incurred by Whitehat Agency in preparation for provision of the services.
- If the Service Cancellation is made between 48 and 24 hours prior to the day on which Whitehat Agency has been engaged to provide the Videography Services or Photography Services, the Client must pay 50% of Videography Services Fee and/or Photography Services Fee, as applicable.
- If the Service Cancellation is made within 24 hours of the time at which Whitehat Agency has been engaged to provide the Videography Services or Photography Services or during the provision of the services, the Client must pay the Videography Services Fee and/or Photography Services Fee, as applicable, in full.
- Any amount payable pursuant to this clause must be paid by the Client within 15 days of the Cancellation.
16. GRAPHIC DESIGN SERVICES
- If, in its provision of the Graphic Design Services, Whitehat Agency is required to create an original typeface or logo (Graphic Design), then Whitehat Agency retains all rights in relation to that Graphic Design;
- Whitehat Agency may, at its discretion, license any original Graphic Design to be used by the Client or any third party. Any such licence is not and does not form part of this agreement.
- If, in the provision of the Graphic Design Services, Whitehat Agency is required to use material belonging to a third party, then the Client must acquire a license to use such designs, whether for a fee or otherwise.
17. THIRD PARTY TERMS & CONDITIONS
- If the Services involve Whitehat Agency acquiring goods and services supplied by a third party on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) may apply. The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing the Deliverables, and Whitehat Agency will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
- If Whitehat Agency recommends any third party software or other goods and/or services (Third Party Goods and Services) to the Client, the Client agrees to satisfy themselves that such Third Party Goods and Services are fit for their intended purpose and are of the requisite quality. Whitehat Agency will not have any obligations or liabilities to, and will not be a party to any contract between the Client and the relevant third party in relation to any Third Party Goods and Services or any other claims otherwise resulting from recommending the Third Party Goods and Services.
Whitehat Agency may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
- If required, the Services include up to two rounds of revisions:
- must be requested by the Client within 3 days after the Client receives a Deliverable;
- must be sent in no more than two emails in total (any requested Revisions after the initial two emails will be considered Changes in accordance with clause 24); and
- only include revisions that in the sole discretion of Whitehat Agency are not significant in nature.
- The Client must provide feedback on any amendments carried out by Whitehat Agency as a result of the requested revisions within 5 days of receiving the amendments. If feedback is not provided, Whitehat Agency will assume approval. Any feedback provided after the two day period will be considered Changes in accordance with clause 24.
20. CLIENT OBLIGATIONS
20.1 PROVIDE INFORMATION
The Client must promptly provide Whitehat Agency with all documentation, information and assistance reasonably required by Whitehat Agency to perform the Services. Failure to do so in a timely manner (within two days of Whitehat Agency requesting) will jeopardise the results and timeline.
20.2.01 The Client agrees to provide Whitehat Agency with access to:
- the Client’s premises and Personnel, to the extent required to perform the Services;
- the Client’s Paid Advertising accounts (including login details and passwords);
- any other third party or other accounts used by the Client (including login details and passwords; and
- the Client’s website (but only where Whitehat Agency is providing Services that involve making updates or changes to the Client’s website),as reasonably required by Whitehat Agency to perform the Services.
20.3 COMPLIANCE WITH LAWS
The Client agrees that it will not by receiving or requesting the Services:
- breach any applicable laws, rules and regulations (including any applicable privacy laws); or
- infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
20.4 SIGN OFF
The Client agrees to promptly approve and/or provide feedback on any milestones, Deliverables and/or Services.
- The Client must conduct Acceptance Tests within seven days or the number of days stated in the Statement of Work from the date of submission of Deliverables, whichever is earlier (Acceptance Period). In conducting the Acceptance Tests the Client will satisfy themselves that the Deliverables meet any agreed Specifications. Upon the expiry of the Acceptance Period, the Client shall be deemed to have accepted the Deliverables unless the Client communicates otherwise within the expiry of the Acceptance Period. The Client shall not be entitled to reject or seek modification of Deliverables in a manner not set out in the Specification.
- If the Client rejects or seeks modification of Deliverables during the Acceptance Period due to any faults in the workmanship of Whitehat Agency, the Client shall grant additional time to Whitehat Agency to provide, at no additional charge to the Client, the corrected Deliverables (Corrected Deliverables). Whitehat Agency may seek and the Client shall provide extension of time, if the correction to any Deliverables is expected to take longer than the additional period initially granted by the Client. The process for acceptance of the Deliverables outlined in clause 21(a) above shall apply to any Corrected Deliverables.
- In the event the Client rejects the Corrected Deliverable, the Client may reject the same the Statement of Work in accordance with clause 32.2(b). In such event the Client will not have any right, title or interest in any rejected Deliverables or Services.
As part of the Statement of Work or in the course of Whitehat Agency performing the Services, the parties may agree a schedule for providing certain Services and Deliverables, including estimated dates of completion, deadlines or schedules (Schedules).
Whitehat Agency will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, Whitehat Agency will use its best efforts to minimise the impact of such changes.
Whitehat Agency reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide timely feedback or other information reasonably requested by Whitehat Agency in order to perform the Services.
The Client must pay to Whitehat Agency fees and any other consideration (including equity) in the amounts and at the times set out in the Statement of Work (Fees) or as otherwise agreed in writing. If Additional work is required, that is not mentioned in a Statement of Work or Agreement/Contract Document, it will be charged according to an effort day daily rate which is defined as 8 hrs. during business hours with a standard blended rate of $1,500 AUD (Exc GST). This daily rate may change based on the work that is required. Weekdays outside of business hours has an effort rate of 1.5x the standard rate. Weekend, Public Holiday and National Holiday rates are 2x of the standard rate. Minimum billing blocks are 0.25 standard days (2 hrs).
23.2 TIME FOR PAYMENT
Unless otherwise agreed in a Statement of Work:
- if Whitehat Agency issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
- in all other circumstances, the Client must pay for all goods and services within 15 days of receiving an invoice for amounts payable.
Unless otherwise agreed:
- the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Whitehat Agency in connection with a Statement of Work; and
- any third-party costs incurred by Whitehat Agency in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Statement of Work.
Unless required by applicable law, including the Competition and Consumer Act 2010 (Cth), Whitehat Agency will not provide any refunds for work already performed.
Unless otherwise indicated, amounts stated in the Statement of Work do not include GST. In relation to any GST payable for a taxable supply by Whitehat Agency, the Client must pay the GST subject to Whitehat Agency providing a tax invoice.
23.6 CARD SURCHARGES
Whitehat Agency reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
23.7 LATE PAYMENT
If the Client does not pay Whitehat Agency the amounts due and payable under an invoice on or before its due date, without limiting any of Whitehat Agency’s other rights under this agreement:
- the Client must pay Whitehat Agency interest at the rate of 10% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by Whitehat Agency.
- Whitehat Agency will have the right to terminate this agreement under clause 32.1(i) and claim all the amounts set out in clause 32.3.
- 90 days after the invoice due date, Whitehat Agency will have the right to refer the unpaid amounts to a debt collection agency and/or law firm, an all the associated collection and/or legal costs will be payable by the Client.
The Client must pay additional charges for changes to Services requested by the Client which are outside the scope set out in the relevant Statement of Work (Changes).
Unless otherwise agreed in a Statement of Work:
- changes will be charged on a time and materials basis, at Whitehat Agency’s standard hourly rates as notified to the Client and/or set out in the attached Rate Card; and
- Whitehat Agency may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed:
- all displays or publications of any Deliverables provided to the Client as part of the Services must, if requested by Whitehat Agency, bear an accreditation and/or a copyright notice including Whitehat Agency’s name in the form, size and location as directed by Whitehat Agency; and
- Whitehat Agency retains the right to describe the Services and reproduce, publish and display the Deliverables in Whitehat Agency’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
26. CONFIDENTIALITY & RESTRAINT
Except as contemplated by this agreement or a Statement of Work, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
- information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
- information required to be disclosed by any law; or
- information disclosed by Whitehat Agency to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
For the duration of any Statement of Work, and for 1 year thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Whitehat Agency with which the Client had contact during the Term.
27. INTELLECTUAL PROPERTY
27.1 CLIENT CONTENT
The Client grants to Whitehat Agency (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
- warrants that Whitehat Agency’s use of Client Content as contemplated by a Statement of Work will not infringe any third-party Intellectual Property Rights; and
- will indemnify Whitehat Agency from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
27.2 WHITEHAT AGENCY IP
Unless otherwise expressly agreed in a Statement of Work, the Client will not under these terms or any Statement of Work acquire Intellectual Property Rights in any Whitehat Agency IP or Developed IP. Any Whitehat Agency IP and Developed IP will be solely and exclusively owned by Whitehat Agency. This includes and is not limited to all digital marketing that Whitehat Agency sets up including landing pages, ad copy and other IP. Whitehat Agency exclusively owns the IP built in our ad accounts and Whitehat Agency will work on ad campaigns through those accounts on behalf of the client.
Whitehat Agency grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Whitehat Agency IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables.
For the purposes of this clause 27:
- “Client Content” means any documents or materials supplied by the Client to Whitehat Agency under or in connection with this agreement or a Statement of Work, including any Intellectual Property Rights attaching to those materials.
- “Developed IP” means any materials produced by Whitehat Agency in the course of providing Services or Deliverables including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
- “Whitehat Agency IP” means all materials owned or licensed by Whitehat Agency that is not Developed IP and any Intellectual Property Rights attaching to those materials.
- “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.
- Both parties agree to comply, and ensure that their Personnel complies, at all times, with the Privacy Laws.
- Without limiting or otherwise affecting clause 28(a), either party must:
- ensure Personal Information held or handled by it in connection with this agreement is protected against misuse, interference and loss and against unauthorised access, use, modification or disclosure;
- immediately notify the other party if:
- it becomes aware or suspects there has been unauthorised use, copying, or disclosure of, or other security breach in relation to, Personal Information held or handled by it in connection with this agreement; or
- it becomes aware that a disclosure of Personal Information held by it in connection with this agreement is, or may be, required by Law;
- not do anything with Personal Information that will cause the other party to breach any Privacy Law; and
- comply with any reasonable request, direction or inquiry made by the other party in relation to Personal Information or the Privacy Laws.
To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement or a Statement of Work are excluded.
Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Whitehat Agency’s liability for breach of that non-excludable condition, warranty or guarantee will, at Whitehat Agency’s option, be limited to:
- in the case of goods, their replacement or the supply of equivalent goods or their repair; and
- in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
30. LIMITATION OF LIABILITY
Without limiting any remedies the Client might have under Competition and Consumer Act 2010 (Cth) and to the maximum extent permitted by applicable law, Whitehat Agency’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement or a Statement of Work:
- is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
- is limited, insofar as concerns other liability, to the total money paid to Whitehat Agency under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
- not liable for any damages when co-locating to client or third-party space
The Client indemnifies Whitehat Agency from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
- any breach of this agreement by the Client; or
- any negligent, fraudulent or criminal act or omission of the Client or its personnel.
- Whitehat Agency cannot be liable to the Client or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate it’s services, even if you have advised us of the possibility of such damages.
32.1 TERMINATION BY WHITEHAT AGENCY
- Whitehat Agency may terminate these terms or any Statement of Work in whole or in part immediately by written notice to the Client if:
- the Client is in breach of any term of these terms or any part of a Statement of Work;
- the Client becomes subject to any form of insolvency or bankruptcy administration.
- Whitehat Agency may terminate these terms and any Statement of Work in whole or in part for convenience by giving the Client 30 days’ notice.
32.2 TERMINATION BY CLIENT
The Client may terminate this agreement:
- if Whitehat Agency has committed a material breach of this agreement or a Statement of Work and has failed to remedy the breach within 30 days written notice by the Client;
- if Whitehat Agency consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
- Whitehat Agency becomes subject to any form of insolvency or bankruptcy administration.
32.3 EFFECT OF TERMINATION
Upon termination of this agreement, the Client must promptly pay (at Whitehat Agency’s
- Whitehat Agency’s expenses to date;
- payments required by Whitehat Agency’s suppliers to discontinue their work, including but not limited to payments to any hosting providers;
- usual time charges for the work of Whitehat Agency’s staff to date;
- Whitehat Agency’s standard fees in relation to work already performed; and/or
- an equitable amount by way of profit margin on the preceding items.
Any provision of these terms (including in a Statement of Work) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination, including without limitation clauses 23 – 36.
33. DISPUTE RESOLUTION
- The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
- The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
- The terms of the Guidelines are hereby deemed incorporated into this agreement.
34.1 FORM OF NOTICE
A notice or other communication to a party under this agreement must be:
- in writing and in English; and
- addressed to that party to:
- the email address of that party that has been regularly used by the parties to correspond during the term of this agreement (unless such email address is known to be inactive by the party giving notice).
34.2 HOW NOTICE MUST BE GIVEN
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
|Method||When Notice is regarded as given and received|
|By email to the nominated email address||Unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address, 24 hours after the email was sent.|
35. FORCE MAJEURE
35.1 If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement or a Statement of Work (other than an obligation to pay money) due to Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
- reasonable details of the Force Majeure Event; and
- so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
35.2 Subject to compliance with clause 35.1, the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
35.3 The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
36.1 GOVERNING LAW
This agreement is governed by the law applying in New South Wales, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
This agreement may only be amended by a document signed by each party.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
36.6 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
36.7 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
36.8 PRICING AND TIMINGS
Prices and timings subject to change depending on requirements or circumstances.
37. DEFINITIONS AND INTERPRETATION
- In this agreement, the following rules of interpretation apply:
- (singular and plural) words in the singular include the plural (and vice versa),
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it, including the cover page and Statement of Work;
- (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
- (currency) a reference to “$” or “dollar” is to Australian currency;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
- In this agreement, the terms that have not been defined in a Statement of Work or elsewhere have the following meanings:
|Acceptance Tests||means each of the tests to be carried out as set out in specific Statement of Work.|
|Commencement Date||means the date both parties have signed the cover page of this agreement, or if not the same date, the later date.|
|Confidential Information||means information of or provided by a party to the other party under or in connection with this agreement or a Statement of Work that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.|
|Deliverable||means a deliverable agreed on by the parties in the Statement of Work.|
|Force Majeure Event||Force Majeure Event means any:(a) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;(b) strikes or other industrial action outside of the control of either party; and(c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic, but only where such events or circumstances:(d) are beyond the reasonable control of the affected party;(e) where the affected party is the Client, are such that a competent contractor would not have been able to prevent or overcome the effect of such events or circumstances on the performance of the Client’s obligations under this agreement if it had exercised the care, skill, diligence, prudence and foresight reasonably or ordinarily expected of a competent, qualified, skilled and experienced contractor supplying similar goods and services; and(f) are not caused or contributed to in whole or in part by a breach by the affected party of this agreement, and the following will be taken not to be a Force Majeure Event:(g) any failure or inability to pay any Fees; and(h) any act or omission of a Client (except where that act or omission was caused by a Force Majeure Event).|
|Personal Information||has the meaning given in the Privacy Laws, or, if the GDPR applies, the meaning ‘personal data’ is given in the GDPR.|
|Personnel||means, in relation to party, their employees, contractors, agents and officers.|
|Photograph||means all photographic material produced by Digital Origin under this agreement whether in the form of a digital file, a negative, a transparency, a print or any other type of physical or electronic material.|
|Raw Footage||means master footage recorded by Digital Origin as part of provision of the Videography Services.|
|Raw Photograph||means a Photograph in RAW format.|
|Video Material||means Raw Footage, video files, audio files and edited video files produced by Digital Origin under this agreement whether in the form of a digital file, a cassette, a DVD, a CD or any other type of physical or electronic material and in any format.|
|Privacy Laws||means the Privacy Act 1988 (Cth) as amended from time to time and includes the Australian Privacy Principles in Schedule 1 of that Act, and the General Data Protection Regulation (EU) 216/679.|