DIGITAL AGE MEDIA
MASTER SERVICES AGREEMENT
Last Updated: 23 April 2020
This Master Service Agreement (MSA) applies between the Service Provider, The Trustee for Digital Age Media Trust (Digital Age Media) (We, Us) and [Client business name] (You).
We provide a range of information technology and digital marketing services, including but not limited to:
- Lead generation services; and
- Digital design & development services; and
- Search engine optimisation (SEO) services; and
- Social media & Search ad platform management services.
This MSA sets out the terms and conditions (Terms) that will apply to the provision and your use of these Services, unless You and we agree to variations to the MSA (Agreed Terms).
Those Agreed Terms supersede the clauses contained herein, and shall have priority over these Terms in accordance with clause 2.8 to the extent of those variations. You shall be bound by the remainder of these Terms in respect of all other clauses not specified in those variations.
References herein to those Agreed Terms are solely for the purposes of determining priority in accordance with clause 2. For the avoidance of doubt, other than clause 2.8, Terms and Agreed Terms have the same meaning throughout the remainder of this MSA.
1.1 In this MSA, except where the contrary intention is expressed:
(a) a reference to the singular includes the plural and vice versa;
(b) the headings are used for convenience only and do not affect the interpretation of this MSA;
(c) a reference to a document includes the document as modified from time to time and any document replacing it;
(d) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(e) the word “month” means calendar month and the word “year” means 12 months;
(f) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(g) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
(h) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”;
(i) money amounts are stated in Australian Dollars (AUD) unless otherwise specified; and
(j) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body.
- The Contract
About the Contract
2.1 For each and every service engagement, you must agree and sign a separate Service Order relating to each such engagement, or express your confirmation to us in writing.
2.2 Your Service Order constitutes an offer by you to acquire the nominated Services on the terms and conditions of the Service Order and this MSA, subject to acceptance by us.
2.3 We may accept or reject your Service Order for any reason, or we may refuse to enter into an Agreement to supply a service to you for any reason.
2.4 Upon acceptance by us of a Service Order, an independent and binding Contract is created between the parties comprising the Service Order and any attachments or annexures thereto and the MSA to the exclusion of any quote, representations, terms and conditions of any other document issued or provided to or by you. Both parties agree to be bound by the terms of the Contract in relation to the provision of Services.
2.5 If there are any special conditions which you require to be included as part of the Contract, you must ensure these are negotiated as Agreed Terms or contained in a Service Order, otherwise they shall not apply.
2.6 Your Contract may be a Project based agreement, a fixed-length agreement or an ongoing agreement.
2.7 Where we provide Services in conjunction with any third party service providers, we will advise you of this. It is your responsibility to familiarise yourself with the details and the terms and conditions of the third party service provider. We will not be responsible for any adverse consequences that arise as a result of you breaching third party terms and conditions.
Priority and Inconsistency in the Contract.
2.8 Where there is any inconsistency between any part of the Contract, the documents and Terms are to be interpreted and applied in the following order of priority:
- Service Order
- Agreed Terms
- These Terms
- Start of Contract
3.1 The MSA has effect on and from the date of execution and continues unless terminated in accordance with these Terms.
3.2 The Contract starts when we notify you that we have accepted your Service Order or when we commence preparing to supply the service to you, whichever is the earlier.
3.3 You are bound by the Contract from when the Contract starts as per Clause 3.2, and may only cancel the Service in accordance with Clause 6, even though Billing may not have commenced.
3.4 You acknowledge that when you request to withdraw a Service Order after we have accepted the Service Order but before the Service is ready for use, that we will have incurred costs, including committing to fixed term contracts with our suppliers, and payment of the Cancellation Charge in accordance with Clause 6 compensates us for these costs incurred
3.5 Unless stated on the Service Order, Billing will commence from the date when you are advised that your service is ready for use.
- Provision of Services
4.1 We will provide the Services to you in a professional and workmanlike manner.
4.2 We will commence providing the Services to you within a reasonable timeframe after receipt and acceptance of your Service Order, unless otherwise specified in the Service Order.
Intended Purpose of Services
4.3 Unless otherwise specified in the Service Order, you agree and acknowledge that the Services are not a kind ordinarily acquired for personal, domestic or household use or consumption.
Length of supply – Ongoing agreement
4.4 If the Contract is an ongoing agreement, the agreement shall continue, and we shall continue to supply the service to you, until such times as the service is cancelled pursuant to Clause 6.
Length of Supply – Fixed Length Agreement
4.5 If the agreement is a fixed length agreement, the agreement shall continue for the minimum term and we shall continue to supply the service to you for that minimum term unless the service is cancelled pursuant to Clause 6.
4.6 Following the last day of the minimum term a fixed length agreement becomes an ongoing agreement and we will continue to supply the service to you in accordance with clause 4.4 unless you notify us that you want to Cancel the Service or we notify you that we wish to cancel the service pursuant to Clause 6.
Length of Supply – Project Based Agreement
4.7 If the agreement is a project based agreement, the agreement shall continue until completion and delivery of the Service and/or Product specified in the Service Order.
Reasonable Cooperation to supply and maintain service
4.8 You must reasonably cooperate with us and do all things we reasonably require you to do, as notified from time to time, in order to allow us or an agent to supply or continue supplying the service to you, safely and efficiently. This may include:
4.8.1 Providing clear and concise additional instructions and information to us within a reasonable timeframe upon request;
4.8.2 Making yourself or an agent able to make decisions on your behalf available to us at a time and place notified by us;
4.8.3 Taking delivery of any equipment, documents, invoices or other things relating to your service or your relationship with us;
4.8.4 Making logins, usernames, passwords, hosting, registrar and other details available to us relating to our supply of Services to you..
4.9 If you do not cooperate with us to allow the service to be supplied or that supply to be maintained, we may be entitled to cancel or suspend the service pursuant to Clause 6.1.
4.10 In order to supply and maintain the service, we may access or keep any records that we deem necessary, including to comply with any laws.
- Fees and Payment
5.1 The applicable Fees payable by you will be specified in the Service Order.
5.2 Fees are due and payable by you in the amounts and according to the payment schedule set in the Service Order.
5.3 Any other Fees are payable on the due date specified on the invoice.
5.4 You must pay all Fees specified in the Service Order or on any invoice in full. If following a dispute, we conclude that we have made an error or you are entitled to a refund, we will reverse the transaction appropriately.
5.5 In the event that you fail to pay the Fees in accordance with Clauses 5.2 to 5.4, we may suspend the provision of the Services and we may charge you interest on the overdue amount at the NSW pre-judgment interest rate, which will accrue on a daily basis from the date payment becomes overdue.
5.6 Where applicable, you must pay, in addition to the Fees, any GST levied or imposed upon us as a result of the Contract. Unless otherwise expressly stated, all prices or other sums payable or Fees to be provided under or in accordance with the Contract are exclusive of GST.
5.7 At the end of each 12 months from the Commencement Date of the Contract, we may increase the Fees in accordance with CPI for the previous 12 month period. CPI means the weighted average of 8 capital cities Consumer Price Index published by the Australian Bureau of Statistics.
5.8 During the Term and in addition to our rights under clause 5.7, we may increase the Fees on written notice to you following any increase in the costs of providing the Services as a result of any change or increase in costs passed on to us by any third party service providers.
6.1 In addition to any other termination right available to us in the Contract or at Law, we may without any notice or liability to you suspend the Services and/or terminate the Contract in whole or in part at any time if:
6.1.1 You fail to pay any of the Fees by the due date or fail to make full payment within 14 days after you receive written notice from us;
6.1.2 You breach a material term of the Contract and, where the breach is capable of being remedied, you fail to remedy the breach within 14 days after you receive written notice from us;
6.1.3 You suffer an insolvency event, or we reasonably believe that you are likely to suffer an insolvency event;
6.1.4 You die, or your organisation is dissolved, deregistered, wound up or otherwise ceases to exist as an entity capable of purchasing and receiving Services
6.1.5 We reasonably suspect that you or your agents have acted fraudulently in relation to the Service (including administrative and billing matters associated with the service);
6.1.6 You are in breach of an applicable law, licence, permit, authorisation or directive of any competent authority relating to the use of the Services;
6.1.7 We become aware or are advised by any regulatory authority that applicable or relevant laws, rules, regulations or authorities, or any decision of a court or government authority, prohibits the provision of the Service;
6.1.8 Any application for a consent or permit required for the provision of the Service is rejected or is cancelled, lapses or is otherwise terminated and no further replacement, consent or permit can reasonably be obtained; or
6.1.9 We are the subject of an insolvency event.
6.2 If you have an ongoing Agreement, either you or us may cancel the Services by giving the other at least 7 days written notice that you or we intend to cancel the Services prior to the issue date of the next invoice.
6.3 If you have a fixed length agreement, you may cancel your Service by giving us at least 30 days written notice that you intend to cancel your Service and paying us the Cancellation Charge.
6.4 If you have a project based agreement, you may cancel your service by giving us written notice. You agree that you will forfeit any deposit or applicable progress payments specified in the Service Order, or, where a deposit or progress payments are not specified in the Service Order, paying us for the Services we have completed.
6.5 You may terminate the Contract, in whole or in part, by way of written notice to us if:
6.5.1 We breach a material term of the Contract and fail to remedy the breach within 14 days of your written notification; or
6.5.2 We suffer an insolvency event.
6.6 You will be liable to pay to us any and all charges or fees, howsoever incurred, up to and including the date when we ceased supplying the Services.
- Force Majeure
7.1 Neither party will be liable to the other party for any delays or errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) third party service provider changes and updates, natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
7.2 Either you or us may cancel the service by giving as much notice as is reasonably possible to the other if a Force Majeure event adversely affects either you or us (in relation to the service) for more than 30 days.
- Confidential Information
8.1 Both parties acknowledge that in the course of performing their obligations under the Contract, they may receive information which is proprietary and confidential to the other party.
8.2 Both parties agree not to use confidential information of the other party except in the proper performance of their obligations, and not to disclose the confidential information to any person or entity other than their own employees or agents directly involved in the performance of the Services.
8.3 Where it is necessary to disclose the confidential information to external agents or contractors, these are to be bound by a separate written undertaking to protect the confidentiality of such Confidential Information, on the same terms as this Agreement.
8.4 Notwithstanding the above, both parties may use or disclose Confidential Information to the extent necessary to:
8.4.1 Comply with any law, binding directive of a regulator or a court order;
8.4.2 Comply with the listing rules of any stock exchange on which its securities are listed; or
8.4.3 Obtain professional advice in relation to matters arising under or in connection with this document
9.1 You acknowledge and agree that you are responsible for the collection, use, storage and otherwise dealing with Personal Information. You will comply and ensure that all of your Personnel Information complies with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with.
- Intellectual Property Rights
10.1 You represent and warrant to us that
10.1.1 You own all right, title, and interest in, or otherwise have full right and authority to permit the use of elements of text, photographs, and anything else that you provide to us (Your Content),
10.1.2 to the best of your knowledge, your Content does not infringe the rights of any third party, and use of Your Content as well as any Trademarks does not and will not violate the rights of any third parties,
10.1.3 You shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
10.1.4 You shall comply with all laws and regulations as they relate to the Services and/or Product.
10.2 Your Content, including all pre-existing Trademarks, shall remain your sole property or its respective suppliers, and you or your suppliers shall be the sole owner of all rights in connection therewith. You hereby grant to us a nonexclusive, nontransferable license to use, reproduce, modify, display and publish your Content solely in connection with our provision of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
10.3 All of the Intellectual Property Rights comprised in the Services, Cloud and any other equipment or materials used by us to provide the Services are, and remain, owned exclusively by us and/or our third party service providers.
10.4 Subject to clause 10.3, all right, title and interest in the Content and any data generated solely by you as a direct result of using the Services is retained by you and you grant us a nonexclusive, royalty-free licence to use the Content to perform the Services during the Term.
10.5 If any additional Third Party Software or applications are required to access the Services, unless otherwise specified in a Service Order you are responsible for procuring the rights to such items and for any configuration, interoperability issues, maintenance and storage of the Third Party Software.
10.6 All Third Party Materials are the exclusive property of their respective owners. You shall obtain the license(s) necessary to permit your use of the Third Party Materials consistent with the usage rights granted herein.
10.7 Subject to Clause 10.9. and expressly subject to full payment of all fees, costs and expenses due, when we provide Website, Logo and other Design Services to you, upon completion we hereby assign to you all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Website.
10.8 When we provide services to you, with your permission we may use your company IP on our own or third party properties, including your logo, text and images for the purposes of the Service.
10.9 We represent and warrant to you that
10.9.1 except for Third Party Materials and Your Content, the Final Product shall be the original work by us and/or our independent contractors,
10.9.2 in the event that the Final Product includes the work of independent contractors commissioned for the Services by us, we shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Product sufficient for us to grant the intellectual property rights provided in this Agreement, and
10.9.3 to the best of our knowledge, the Final Product provided by us and our subcontractors does not infringe the rights of any party, and use of the same in connection with the Services will not violate the rights of any third parties.
10.9 The ownership of copyright and other intellectual property rights in all Works produced by us which are not ultimately used in the Website remains with us including:
10.9.1 Draft concepts;
10.9.2 Working notes and any other internal written materials
10.9.3 Preliminary drafts, drawings, illustrations, photographs, and designs;
10.9.4 Preliminary electronic works including website drafts, source code development tools, programs, multimedia applications and programmers’ notes;
10.9.5 Draft videos, sound recordings, outtakes, storyboards, scripts;
10.9.6 Designs which are rejected by you.
11.1 You indemnify and hold us harmless from any damage, loss, liability, cost, charge, expense, outgoing or payment of any kind suffered or incurred by us arising out of or in respect of any breach of your responsibilities or obligations, representations or warranties under the Contract.
- Limitations of Liability
12.1 With the exception of clause 12.3, our liability to you for all proven loss and damage arising from a breach of the Contract, or a claim under common law or tort (including negligence) is limited, in aggregate, to the Fees received by us from you or on your behalf under the Contract in the 12 month period preceding the event giving rise to the cause of action.
12.2 Any representation, warranty, condition or undertaking that would be implied in the Contract by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
12.3 Nothing in the Contract excludes, restricts or modifies any condition, warranty, right or remedy conferred on the parties by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement. If a warranty or condition is implied by the Competition and Consumer Act 2010 (Cth) or other Law which may not be excluded, then our liability for any breach of such an implied warranty is limited solely to the resupply of the relevant Services or the payment to you of the cost of having the Services provided again (at our option).
12.4 To the extent permitted by Law, and notwithstanding any other provisions of the Contract, in no event will either party be liable for loss of profits, downtime costs, loss of revenue, loss of reputation, loss of data, loss of rankings, loss of traffic, loss of use, loss of goodwill, failure to realise anticipated savings, anticipated profit or revenue or any indirect or consequential loss arising out of or in connection with the Contract, howsoever caused.
12.5 We are not liable to you for failing to provide the Services, unless the failure directly results from a breach of the Contract, or directly results from our negligence or wilful misconduct.
13.1 Any notice, consent, application or request that must or may be given or made under this Agreement is sufficiently given or made if:
13.1.1 Delivered personally to that party at its address set out in a Service Order;
13.1.2 by pre-paid post to that party at its address set out in a Service Order;
13.1.3 by email to that party at an email address set out in a Service Order.
13.2 Either party must give the other at least three (3) business days’ notice of any change of its address or email address, for it to be a valid address under this agreement.
13.3 Any notice, consent, application or request is to be treated as given or made at the following time:
13.3.1 if it is delivered, when it is left at the relevant address;
13.3.2 if it is sent by post, three (3) business days after it is posted unless proved otherwise; and
13.3.3 if it is sent by email, it is taken to have been given or made at the time of receipt.
13.4 If any notice, consent, information, application or request is delivered on a day that is not a business day, or if on a business day, after 5pm on that day in the place of the party to whom it is sent, it is to be treated as having been given or made at the beginning of the next business day
14.1 Nothing in the Contract removes or limits any rights that cannot be excluded or modified under existing laws or regulations.
14.2 The Contract must as far as possible be read in the way that makes it legal, enforceable and valid.
14.3 If anything in the Contract is illegal, unenforceable or invalid, that clause, or part of a clause, shall be severed from the agreement without affecting in any way the legality, enforceability and validity of any other part of the agreement.
- Governing Law
15.1 The Contract will be governed by the laws of New South Wales, Australia and each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia. You nor we will not object to the exercise of jurisdiction by those courts on any basis.
16.1 A right may only be waived by us in writing, and no other conduct by us (including a delay in exercising, relaxation of or failure to exercise the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
- Entire Agreement
17.1 The Contract constitutes the entire agreement between you and us and supersedes any prior agreement, understanding or arrangement between you and us, whether oral or in writing. No representation, undertaking or promise will be taken to have been given or implied from anything said or written in negotiations between you and us prior to this Agreement except as expressly stated in this Agreement. Neither you or us can rely on an earlier document, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this document was executed, except as permitted by law.
- Surviving Provisions
18.1 The provisions of the Contract which are intended or capable of having effect after the expiration or termination of your agreement with us (including provisions relating to warranties, indemnities, liability, licence, Intellectual Property Rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the Services.