1 INTRODUCTION
These Terms and Conditions govern your purchase and receipt of services provided by Lakewin Pty Ltd trading as ‘pointdot’ (ABN 34 060 485 485) (“the Company”, “our” “us”).
By accepting our services, either by verbally indicating your acceptance of our Proposal, executing our Proposal or instructing us to commence and/ or perform the works described in our Proposal, you also agree to be bound by these Terms and Conditions.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have authority to bind such entity and its affiliates. If you do not have such authority, or if you do not agree with our Proposal and/ or these Terms and Conditions, you must not accept our Proposal and may not receive our services.
2 DEFINITIONS AND INTERPRETATION
2.1 Definitions
In these Terms and Conditions:
(a) Agreement means the agreement consisting of:
(i) the Proposal; and
(ii) these Terms and Conditions.
(b) Approvals means any certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this Agreement.
(c) Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
(d) Authority means any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person.
(e) Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.
(f) Client means the client described in the Proposal.
(g) Client Content means all documents, files, records, images, recordings, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by the Client to the Company in relation to the performance of the Services including but not limited to all login and access information for the Client’s Social Media Accounts.
(h) Commencement Date means the date that this Agreement starts, as set out in the Proposal.
(i) Company means Lakewin Pty Ltd (ABN 34 060 485 485) t/as pointdot.
(j) Company Content means all documents, files, records, images, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by the Company to the Client in relation to the performance of the Services.
(k) Consumer Guarantee means a consumer guarantee as it applies to supplies made under this agreement, as set out in under Part 3-2, Division 1 of the Australian Consumer Law.
(l) Default Rate means 10% per annum.
(m) Event of Default means an event of default described in clause 10.1.
(n) Force Majeure Event means an act of God, pandemic, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
(o) GST has the meaning given to that term in the GST Law.
(p) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(q) Insolvency Event means one or more of the following events:
(i) the Client is unable to pay their debts as and when they fall due;
(ii) an application is made, or a resolution is passed, to wind up the Client;
(iii) a controller or administrator is appointed in respect of the Client or any of its assets;
(iv) the Client commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or
(v) the Client dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.
(r) Intellectual Property means any and all items in which Intellectual Property Rights subsist, existing now or in the future and whether or not registered or registrable in connection with the Client Information or the Company Information.
(s) Intellectual Property Rights means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
(t) Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
(u) Project means any project being undertaken by the Client to which the Services relate or form part of.
(v) Proposal means the Proposal issued by the Company to the Client outlining the services to be provided by the Company to the Client.
(w) Services means the services described in the Proposal.
(x) Social Media Accounts means social media accounts in the name of the Client, including but not limited to, Facebook, Instagram, Snapchat, Twitter, TikTok,Pinterest, LinkedIn etc.
(y) Special Conditions means any special conditions set out in the Proposal.
(z) Term means the duration of this Agreement, starting from the Commencement Date as set out in the Proposal and ending when this Agreement is terminated by either party in accordance with its terms.
2.2 Interpretation
In these Terms and Conditions in the event of inconsistency the following order of priority should apply to the Agreement:
(i) Special Conditions;
(ii) Proposal;
(iii) Terms and Conditions.
3 GENERAL
(a) The Company agrees to supply the Services to the Client on the terms of this Agreement for the Term.
(b) The Company will provide the Services in a professional manner, with due care, skill and diligence.
(c) The Company will provide the Services on an ongoing basis as agreed in the Proposal.
4 DELIVERY
(a) The Company will provide the Client with updates in connection with the Services and any milestones on, at such intervals as the Company may determine are appropriate from time to time.
(b) The Company will use all reasonable endeavours to achieve the milestones in the Proposal.
(c) Any delivery time or milestone the Company gives the Client is only an estimate. The Company is not liable to the Client for any Loss or Claim arising from late delivery.
(d) The Company does not warrant that any of the Services shall receive a particular level of exposure, coverage or convert to any particular level of sales or income. Exposure, coverage and sales results may be impacted by various factors outside the control of the Company. The Client releases the Company from any and all claims and damages of any kind (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) suffered by the Client arising out of or related to, whether directly or indirectly:
(i) the level of coverage, interaction or engagement that the Services may generate including, the failure of any media outlet (including but not limited to print media, online media and/or television) to publicise or give coverage to, either entirely or to any specific degree, any event, story, product or promotion;
(ii) the level of engagement generated by any social media content generated as part of the Services; and
(iii) the degree or quantum of sales or income generated by the Client from the Services.
5 PRICE AND COSTS
(a) Unless the parties agree otherwise in writing, the Company will Invoice for Services supplied in accordance with the Proposal monthly in advance for the duration of the Term. Payment terms are 7 days from the date of invoice.
(b) The Client must pay all invoices by way of direct debit, unless otherwise agreed by the Company and must sign a Direct Debit Authorisation in the form required by the Company when requested to do so.
(c) The price of the Services quoted in the Proposal is exclusive of GST. In addition to the price payable for the Services, where required by law, the Client must pay to the Company the GST payable in respect of the supply of the Services.
(d) Any additional work undertaken by the Company at the written request of the Client, but not included in the Proposal, will be charged at the Company’s usual rates or hourly rates.
(e) The Company is entitled to require the Client to pay any out of pocket expenses reasonably incurred in connection with the performance of Services under this Agreement (i.e. third-party advertising fees). The Client may be required to provide its credit card details to enable the Company to pay these expenses on the Client’s behalf. Out of Pocket expenses incurred by the Company are in addition to, and do not form part of the total cost of the works disclosed in the Proposal. The Company may send a monthly cost summary or payment reconciliation notice to the Client for evidence of complete cost transparency.
(f) The Client must pay all amounts due to the Company (whether under these Terms and Conditions or otherwise):
(i) without set-off, deductions counterclaims or conditions; and
(ii) in available cleared funds.
(g) If the Client owes any amount to the Company (whether under these terms and conditions or otherwise), the Company may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(i) withhold all future supplies of Services until that amount has been paid in full;
(ii) set-off that amount against any amount owing by the Company to the Client; and/or
(iii) immediately demand all amounts due and payable under this Agreement from the Client.
(h) If an amount due under these Terms and Conditions is paid after the due date the Client must pay the Company, in addition to the overdue amount:
(i) interest at the Default Rate calculated based on a 365-day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
(ii) all costs and expenses incurred by the Company in collecting the overdue amount.
(i) The Client’s obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Services.
(j) If the Company suspends work or the provision of services to the Client due to the Client’s instructions or lack of instructions, the Company may increase the contract price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
6 CLIENT OBLIGATIONS
(a) To enable the Company to perform and provide the Services the Client must, at the Client’s cost, promptly:
(i) provide the Company with all Client Content which is to be used in the performance or provision of the Services;
(ii) provide the Company with access to all and relevant information regarding the Services and the Project, the Client and the Client’s business processes which is to be implemented, included or reflected in the provision of the Services; and
(iii) provide the Company with reasonable access to the Client’s facilities and personnel familiar with the Project as the Company may reasonably require from time to time.
(b) The Client warrants to the Company that it:
(i) will comply with all laws in connection with the Services and the Project;
(ii) has all necessary approvals in connection with the Services and the Project; and
(iii) no Client Content infringes any third-party Intellectual Property Rights.
(c) If the Company suspends work due to the Client’s failure to provide Client Content, the Company may increase the contract price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
7 CHANGE
7.1 Change
(a) Either party may request a change to any matter related to the Services, including the performance of any additional services by the Client.
(b) Any change request must be in writing and must give such details as will enable the other party to fully consider its impact, if accepted, on the parties’ rights and obligations under this Agreement.
(c) Neither party will be obliged to accept any change request made by the other party.
(d) If a change request is accepted, any matter identified in the relevant change request as being affected by that change request (e.g. the scope of the Services) shall be deemed to be immediately amended in the manner specified in the change request.
(e) If a change request is not accepted by the recipient and negotiations concerning it ensue between the parties which result in an agreed change, the matter identified in the relevant change request as being affected by that change request shall be deemed to be immediately amended, as so agreed, with effect from the date of the written agreement to the change.
(f) Until any change has been effected as specified in clauses 7.1(a) to 7.1(e) inclusive, both parties will continue to fully perform this Agreement as if the requested change had not been made. After a change has been affected as specified in this clause 7, both parties shall continue to fully perform this Agreement as varied only in accordance with that change.
8 LIMITATION OF LIABILITY AND INDEMNITY
(a) The Client acknowledges that any business insights given in the course of the Services are based upon our industry experience only. You should obtain independent financial and legal advice on any potential transactions and/or business decisions and return on investment from any strategies proposed by us.
(b) Subject only to clause 3(b), the Company makes no express or implied warranties under these Terms and Conditions in relation to the Services.
(c) To the maximum extent permitted by law, the Company limits its liability for any Loss or Claim in connection with this Agreement, to the price of the Services.
(d) To the maximum extent permitted under the Australian Consumer Law, the Company’s liability for breach of a Consumer Guarantee, if the Consumer Guarantees apply at law, is limited to any one or more of the following, at the Company’s election:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again by an alternative supplier.
(e) The Company’s liability in connection with the services is reduced proportionately in the event that the Client contributed to any Claim or Loss suffered by it.
(f) Subject to this clause 8, the Client indemnifies and holds the Company harmless to the full extent permitted by law for any loss or damage whatsoever arising in connection with the supply of the Services to the Client.
9 INTELLECTUAL PROPERTY
9.1 Ownership of Intellectual Property Rights
Unless specified otherwise in this Agreement or otherwise agreed by the parties in writing:
(a) Intellectual Property Rights owned by the Client in Client Content will remain the property of the Client, and Company acknowledges that nothing in this Agreement transfers title in or ownership of any Client Content to Company;
(b) Intellectual Property Rights owned by Company in the Company Content will remain the property of Company, and the Client acknowledges that nothing in this Agreement transfers title in or ownership of any Company Content to the Client;
(c) Intellectual Property Rights in all content developed by the Company in connection with the Services will vest on creation in the Company (Project Content).
9.2 Licence of Client Content
The Client grants to the Company a revocable, non-exclusive, non- transferable, royalty free licence to make such use of the Clients Content as is, in the reasonable opinion of the Company, necessary to provide the Services as set out in this agreement.
9.3 Licence of Company Content
The Company grants to the Client a revocable, non-exclusive, non-transferable, royalty free licence to make such use of the Company Content as is, in the reasonable opinion of the Company, necessary to complete the Project.
9.4 Assignment of Intellectual Property Rights in Project Content
On payment of all monies due and owing under this Agreement by the Client to the Company in connection with the Services, ownership of Intellectual Property Rights in the Project Content is assigned to the Client. The Company is granted a licence and reserves the right to make reference to the Project Content and the Client in promotional material howsoever it requires during and after the Term in all mediums and forums.
10 TERMINATION
10.1 Events of Default
Each of the following events is an Event of Default, namely:
(a) if the Client fails to pay any amount due and payable under this Agreement on the due date for payment and such failure continues for more than 5 Business Days;
(b) either party fails to perform or observe any of the covenants or provisions of this Agreement (except in the case of the Client, the default referred to in clause 10.1(a)) and (if capable of remedy) such default continues for more than 10 Business Days after notice from the non-defaulting party requiring remedy the breach;
(c) the Client sells or closes its business without written notice to the Company;
(d) either party suffers an Insolvency Event;
(e) where the Client is a partnership it is dissolved, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(f) the Client being a natural person dies.
10.2 Termination Rights
If an Event of Default occurs the non-defaulting party may at its option:
(a) by proceeding by appropriate court action, either at law or in equity, enforce performance of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and / or
(b) terminate this Agreement.
10.3 Termination for Convenience
(a) Despite any other provision to the contract, the Company may terminate this Agreement for any reason by providing the Client with 14 days written notice.
(b) If the Client wishes to terminate this Agreement, written notice of termination must be provided by the Client to the Company prior to the beginning of the next monthly billing cycle (Cancellation Notice).
(c) If the Client does not provide a Cancellation Notice strictly in accordance with clause 7.1(b), the cancellation will not take effect until the end of the billed monthly period and the Client will remain liable for the whole of the fees due for the billed month, even if the Client does not wish for the Company to provide any further services for that month. The Company shall not be obligated to provide any refund to the Client.
10.4 Termination does not affect accrued rights
Any termination of this Agreement by either party or its expiration shall be without prejudice to any other rights or remedies that either party might be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination or expiration.
11 SUB-CONTRACTING
The Company may subcontract the performance or provision of any part of the Services without obtaining the prior written consent of the Client.
12 FORCE MAJEURE
No party will be liable for any delay or failure to perform its obligations or any condition pursuant to this Agreement (other than an obligation to pay monies) if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations or any condition is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended until such time as the party can reasonably comply with its obligations.
13 GENERAL
(a) This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
(b) This Agreement may only be varied in writing by the parties.
(c) The Agreement operates as a ‘standing agreement’ and each Proposal issued shall constitute a separate contract for supply of the Services between the parties and the Company may enforce its rights under this Agreement against a Proposal, multiple Proposals or the Agreement as a whole.
(d) These Terms and Conditions will govern the future supply of services by the Company to the Client, unless new Terms and Conditions are issued by the Company to the Client.
(e) Except as required by law, the parties must not disclose to any person without the Company’s prior written consent the existence of, or details in, this Agreement or any other Client Content or Company Content which is confidential and not otherwise in the public domain.
(f) The Client may not, without the prior written consent of the Company, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
(g) The Company may, without the prior written consent of the Client, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
(h) If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these Terms and Conditions.
(i) All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these Terms and Conditions does not prevent any other exercise of that right or the exercise of any other right.
(j) Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
(k) Clause 2, 5, 8, 9 and any indemnities survive termination or expiration of this Agreement.
(l) The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia.
