1.1 VAM Digital will provide the Services and the Client will pay for the Services, in accordance with the Agreement.
1.2. The Agreement is made up of:
(a) the Quote; and
(b) these Terms and Conditions,
and applies to the Services to the exclusion of all other terms and conditions.
1.3 The Client is taken to have accepted the terms of the Agreement upon the earlier of:
(a) the time the Quote is signed by or on behalf of the Client; or
(b) (if earlier) the time the Client makes any payment of any Fees under this Agreement, including any deposit payable under clause 6.2.
1.4 For the Services to achieve the best result, the parties must use reasonable endeavours to work in a collaborative manner. These reasonable endeavours will include:
(a) the Client providing information promptly upon request; and
(b) the Client at all times providing complete and accurate information unless clearly identified as information that cannot be relied upon.
2.1 The Quote will outline the Services to be provided by VAM Digital and estimate the Fees payable for those Services.
2.2 The Client acknowledges that the estimated Fees provided in the Quote are based on information provided by the Client and, subject to clause 2.3, are valid for a period of 1 month after the date of the Quote.
2.3 The actual Fees payable for the Services may differ from the estimates Fees in the Quote in certain circumstances, including:
(a) if the Scope changes after the date of the Quote;
(b) to reflect charges levied by any government authority; or
(c) the information the Quote was based on was not accurate.
VAM Digital will inform the Client before any increase to the Fees in excess of the amount estimated in the Quote.
2.4 All disbursements incurred by VAM Digital in relation to the provision of the Services will be invoiced to and payable by the Client.
2.5 VAM Digital will update the Client from time to time in relation to the progress of the Services.
2.6 The Quote does not include a provision for the release of Working Files. If the Client wishes to be supplied with any Working Files, it must make a request to VAM Digital in writing which VAM Digital may accept or reject in its absolute discretion. Additional Fees will be changed for the provision of Working Files.
3.1. If the Scope includes the provision of Ongoing Services, VAM Digital will provide the Ongoing Services for a minimum term of 1 month (or such other length of time nominated in the Quote) (Ongoing Services Minimum Term).
3.2 The Client may terminate the Ongoing Services prior to the expiry of the Ongoing Services Minimum Term upon providing written notice to VAM Digital. If the Client terminates the Ongoing Services under this clause 3.2, the Client will incur the Ongoing Services Cancellation Fee, which will become a debt due and payable to VAM Digital as at the date of the notice of termination.
3.3 Upon expiry of the Ongoing Services Minimum Term, VAM Digital will continue to provide the Ongoing Services on a month-to-month basis until the Ongoing Services are terminated under clause 3.4.
3.4 After the expiry of the Ongoing Services Minimum Term, the Client may terminate the Ongoing Services upon 30 days’ written notice to VAM Digital.
3.5 If the Ongoing Services are terminated in accordance with clause 3.2 or clause 3.4, VAM will issue an invoice to the Client for all Ongoing Services performed up to the date of termination.
4.1 If included in the Scope, VAM Digital will provide Project Based Services on and from the Commencement Date and will use reasonable endeavours to complete the Project Based Services by the Completion Date.
4.2 The Client acknowledges and agrees that the Completion Date may be extended upon written notice by VAM Digital due to reasons which are beyond its reasonable control.
4.3 The Client may terminate the Project Based Services prior to the Completion Date by written notice to VAM Digital. If the Client terminates the Project Based Services in accordance with this clause 4.3, the Client will be liable for:
(a) the Fees for the Project Based Services performed up to the date of termination, which becomes a debt due and payable upon receipt of a tax invoice in accordance with clause 6; and
(b) the Project Cancellation Fee, which becomes a debt due and payable on the date of the Client’s notice of termination.
5.1 If the Scope includes work which VAM Digital deems Specialist Services, the Fees will be at cost to VAM Digital despite any estimate contained in the Quote.
5.2 VAM Digital will notify the Client in advance of any further Specialist Services that are not contemplated in the Scope and which are required due to a change in the Scope.
5.3 If the Client objects to the addition of any Specialist Services beyond what is contemplated by the Quote, it must raise its objection within  Business Days of being notified by VAM Digital pursuant to clause 5.2. If the Client does not object within the required time, it is deemed to have agreed to the change in the Scope and to pay for the Specialist Services in accordance with clause 5.1.
5.4 VAM Digital is not responsible for and is not liable, whether in contract, tort (including negligence) or otherwise, for the quality or suitability of any Specialist Services.
6.1 Fees payable for Ongoing Services and Project Based Services will be invoiced by VAM Digital from time to time at its election, and will be payable by the Client within 14 days of the date of each invoice.
6.2 The Client must pay a deposit 50% of the Fees nominated in the Quote for any Project Based Services as a condition precedent to the performance of any Project Based Services by VAM Digital under this Agreement.
6.3 If VAM Digital elects, the Client will pay the Fees in relation to any Specialist Services in advance of the performance of those Specialist Services on demand by VAM Digital.
6.4 Unless stated otherwise, all Fees are stated exclusive of GST and the Client must pay and GST component added to the Fees at the same time that it pays the Fees.
6.5 The Client will pay all Fees by electronic funds transfer into the bank account nominated in the Quote, unless otherwise directed in writing by VAM Digital.
7.1 The Client must provide VAM Digital with all business information and marketing objectives required for the effective provision of the Services upon request.
7.2 VAM Digital will have no liability for any errors or misrepresentations contained in any information provided in accordance with clause 7.1. Any alterations or revisions of the Services which are required due to the incompleteness of, or error in, the information provided under clause 7.1 will be at additional Fees to the Client as notified by VAM Digital.
7.3 The Client must provide all necessary text and graphic materials that make up the content of the Services. All content must be supplied in a suitable and easily accessible digital format unless agreed otherwise. Failure to supply material in such a format may result in additional Fees being incurred for retyping text or recreating graphics.
7.4 VAM Digital may make changes to content provided by the Client in order to better represent the messaging of the Services. VAM Digital will notify the Client of any changes which it considers substantial in nature for the Client’s prior approval.
7.5 All charts, graphs, and infographics to be supplied by the Client in accordance with the Agreement must be in Microsoft Excel format. VAM Digital may impose additional Fees for any charts, graphs, and infographics which are supplied by the Client in any other format.
7.6 Client supplied images must be high resolution at 300DPI for print purposes. If the image will solely be used for digital purposes, VAM Digital may accept lower resolution images at its discretion.
8.1 A party will not, without the prior written consent of the other party, disclose or use the other party’s Confidential Information otherwise than in accordance with this Agreement.
8.2 If a party discloses the other party’s Confidential Information in accordance with this Agreement, it must take all reasonable steps to ensure that the party receiving that information keeps it confidential.
8.3 The Client approves VAM Digital’s disclosure of the Client’s Confidential Information to VAM Digital’s agents, subcontractors, Related Bodies Corporate and employees to the extent reasonably required to perform the Services.
8.4 A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information or where the Confidential Information:
(a) was disclosed with the prior written consent of the other party;
(b) was in the public domain at the time of disclosure;
(c) become part of the public domain after disclosure, otherwise than through the disclosure by the other party or any person to whom that party has disclosed the Confidential Information;
(d) is independently developed by the other party without the use of the disclosing party’s information; or
(e) is or came lawfully into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence.
9.1 VAM Digital will own all Intellectual Property Rights in the VAM Digital Material. Nothing in the Agreement transfers any ownership rights in the VAM Digital Material to the Client.
9.2 Subject to the Client paying in full to VAM Digital the Fees, VAM Digital assigns all Intellectual Property Rights in the Services Material to the Client, subject to any limitations in the Third Party Materials.
9.3 Subject to clause 9.4 and prior to the assignment under clause 9.2, VAM Digital grants the Client an irrevocable, non-transferable, sublicensable and royalty-free licence to use the Services Material to the extent required for the Client to obtain the benefit of the Services.
9.4 The licence granted under this clause 9.3 will terminate upon VAM Digital ceasing to provide Services.
9.5 Subject to the Client paying in full to VAM Digital the Fees, to the extent that the VAM Digital Material is integrated or combined with the Services Material or is required for the Client to be able to use, exploit or execute the Services Material for its intended purpose, VAM Digital grants to the Client an irrevocable and non-exclusive licence to use the VAM Digital Material for the purposes of the Client making full and proper use of the Services. This licence does not give the Client any right to exploit or commercialise VAM Digital’s Intellectual Property Rights in the VAM Digital Material beyond making full and proper use of the Services.
9.6 In order to provide the Services, VAM Digital may be required to source and utilise third party proprietary software or public domain content. In such circumstances, the Intellectual Property Rights in such Third Party Material is retained by the originator and is released for use by third parties on the basis of a non-exclusive licence. The Client acknowledges that an assignment or exclusive licence of other Third Party Material may not always be possible and that there may be limitations upon the use of Third Party Material.
9.7 The Client will own all Intellectual Property Rights in the Client Material. Nothing in the Agreement transfers any ownership rights in the Client Material to VAM Digital. The Client grants VAM Digital a licence to use the Client Material solely for the purpose of providing the Services in accordance with this Agreement.
9.8 The Client acknowledges and agrees that VAM Digital retains the right to showcase any Project Based Services or other Services on VAM Digital’s website and design portfolio for the sole purpose of promoting the capabilities of VAM Digital. The Client grants VAM Digital a non-transferable, irrevocable licence of any Intellectual Property Rights in any Client Material necessary to facilitate the exercise of VAM Digital’s rights under this clause 9.8. The licence granted under this clause 9.8 will survive expiry or termination of the Agreement.
9.9 The Client must ensure that it has the right to use any text and images it provides VAM Digital for the purpose of modification, adaption or publication as part of the Services.
9.9 The Client indemnifies VAM Digital and its employees, agents and representatives from and against all liability, losses, damages, costs and expenses (including legal expenses) incurred as a result of any claim brought in relation to a breach of Intellectual Property Rights in connection with the Client Material.
9.10 VAM Digital indemnifies the Client and its employees, agents and representatives from and against all liability, losses, damages, costs and expenses (including legal expenses) incurred as a result of any claim brought in relation to a breach of Intellectual Property Rights in connection with the Client’s use of the Services Material for its intended purpose.
10.1 Subject to clause 10.3, and to the extent permitted by law, the parties agree that the maximum aggregate liability of VAM Digital under or in connection with the Agreement, whether for breach of contract (including a fundamental breach), repudiation, in tort (including negligence), under statute or on any other basis will be the amount of Fees paid by the Client under the Agreement.
10.2 Subject to clause 10.3, neither party will be liable to the other party for loss of profits, revenue (other than loss of profit or revenue that VAM Digital derives from its performance of this Agreement), business, opportunity or any other indirect loss whether for breach of contract (including fundamental breach), repudiation, in tort (including negligence), under statute or on any other basis.
10.3 Nothing in the Agreement limits or excludes the liability of a party in respect of:
(a) acts of fraud or misrepresentation;
(b) the indemnity under clause 9.9; or
(c) the indemnity under clause 9.10.
10.4 All implied conditions and warranties are excluded from the Agreement.
10.5 If the Australian Consumer Law implies any guarantee that cannot be excluded by contract, the Agreement is to be read as not excluding that guarantee (except to the extent permitted by law) and VAM Digital’s liability for breach of that guarantee is limited to (as VAM Digital elects) supplying the Services again or paying the cost of having the Services supplied again.
11.1 If the Client breaches the Agreement, VAM Digital may:
(a) suspend performance of the Services until the breach is cured or the Agreement is terminated; and/or
(b) issue the Client with a breach notice, requiring the Client to rectify the breach (Breach Notice).
11.2 VAM Digital may terminate the Agreement:
(a) by giving the Client not less than 7 days’ written notice; or
(b) on notice, if the Client does not comply with a Breach Notice within the time stipulated in that notice (or if none, within 3 days of its receipt).
11.3 Notwithstanding any other provision of the Agreement, if the Agreement is terminated for any reason:
(a) the Client must pay VAM Digital all Fees payable with respect to Services performed prior to termination; and
(b) the parties are not released from liabilities accrued prior to termination or from obligations that survive termination.
11.4 If the Agreement is terminated under clause 11.2(b), the client will be liable for the reasonable costs incurred by VAM Digital, including the recovery of any debt due by the Client and legal costs.
12.1 Neither party will be liable to the other party for any failure or delay in the performance of an obligation under the Agreement if that failure or delay is due to a Force Majeure Event and the obligations under the Agreement are suspended to the extent to which they are affected by the relevant event as long as it or its effects continue, provided that the party takes all reasonable steps to minimise and work around such an event. However, nothing in this clause excuses a party from an obligation to pay money it is obligated to pay under the Agreement.
12.2 If a Force Majeure Event occurs and its effects continues for an aggregate period of 20 Business Days, the party not subject to the Force Majeure Event may terminate the Agreement on notice provided that the Force Majeure Event is continuing at the time notice is provided.
13.1 It is a condition precedent to any claim by the Client against VAM Digital for loss or damage that it gives VAM Digital a notice setting out:
(a) that it intends to make a claim against VAM Digital; and
(b) the circumstances giving rise to the claim,
within 6 months of the date on which the act or event giving rise to the claim occurred, or in any event within 6 months of termination of the Agreement.
13.2 If the Client fails to comply with clause 13.1, the Client irrevocably releases VAM Digital from, and is absolutely and forever barred from making, any claim for such loss or damage.
13.3 If the Client issues a notice under clause 13.1, the parties must meet within 14 days of its receipt by VAM Digital and use their best endeavours to resolve the issues the subject of the claim.
13.4 The Client must not commence and legal proceedings (except urgent interlocutory proceedings) unless it has complied with clauses 13.1 and 13.3.
13.5 VAM Digital may, at the Client’s cost, engage the services of a debt collector in the event that any Fees remain unpaid by the Client 30 days after they are due to be paid under the Agreement.
The Client acknowledges that it has had the opportunity to seek legal advice in relation to the Agreement.
15.1 In the Agreement:
Agreement has the meaning given in clause 1.2.
Australian Consumer Law has the meaning given to it in the Competition and Consumer Act 2010 (Cth).
Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia.
Breach Notice has the meaning given in clause 11.1(b).
Client means the client entity nominated in the Quote.
Client Material means any material or content provided to VAM Digital by or on behalf of the Client in connection with this Agreement including without limitation content, advertising or campaign material, publications, artwork, documents, equipment, software, information, data and customer lists, and any Client logo, trade mark or indicia.
Commencement Date means the date on which each Project is to commence, as stipulated in the Quote.
Completion Date means that date identified in the Quote as the Completion Date.
Confidential Information means any information relating to a party or its related entities or clients, its products, business methods, systems, software, finances, strategies, trade secrets, client lists, and other information which, by its nature or the way it is disclosed, could reasonably be expected to be regarded as confidential.
Fees means all amounts payable by the Client to VAM Digital for the performance of the Services.
Force Majeure Event means any situation which has arisen due to something beyond the reasonable control of a party that could not have been overcome by the exercise of reasonable diligence which prevents the performance by that party of one or more of its obligations under the Agreement.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all intellectual, commercial and industrial property rights, including trademarks, copyright, inventions, patents, designs, circuits and other eligible layouts, database rights and other intellectual property rights.
Ongoing Services means the Services provided by VAM Digital on an ongoing basis as initially outlined in the Quote, which may include social media management, search engine optimisation and email marketing.
Ongoing Services Cancellation Fee means the cancellation fee payable in accordance with clause 3.2, the amount of which is nominated in the Quote.
Ongoing Services Minimum Term has the meaning given in clause 3.1.
Project means a project described in the Quote, which may include web design, traditional advertising or content creation.
Project Based Services means the Services provided by VAM Digital in relation to each Project.
Project Cancellation Fee means the cancellation fee payable in accordance with clause 4.3(b), the amount of which is nominated in the Quote.
Quote means the quote provided by VAM Digital to the Client, attached to, provided with, or referring to, these Terms and Conditions.
Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth).
Scope means the scope of Services set out in the Quote.
Services means the services referred to in the Quote or otherwise provided under the Agreement, including Ongoing Services, Project Based Services and Specialist Services.
Services Material means materials developed by or on behalf of VAM Digital for the purpose of the Services and expressly detailed in this Agreement, which may include reports, proposals, designs or other works, but excludes VAM Digital Material, Client Material or Third Party Material.
Specialist Services means all Services which involve the engagement of a third party, including media buying, video production, sound recording, animation designs and the engagement of freelancers.
Terms and Conditions means the terms and conditions contained in this document.
Third Party Material means any material (including software) purchased, commissioned or licensed from a third party for the purpose of VAM Digital providing the Services.
VAM Digital means [VAM Digital Pty Ltd].
VAM Digital Material means all content, software, materials, documents, works and property (including know how) owned or developed by or on behalf of VAM Digital prior to this Agreement or independent of the Services, along with any content, software, materials, documents, works and property developed by or on behalf of VAM Digital for general use in VAM Digital’s business and not specifically developed for the sole purpose of performing the Services.
Working Files means any material developed in the process of performing the Services which does not form part of the final product.
15.2 In the Agreement:
(a) words in the singular include the plural of vice versa;
(b) a promise on the part of 2 or more persons binds them jointly and severally;
(c) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation includes consolidations, amendments, re-enactments and replacements;
(d) a reference to currency, $ or dollars is to Australian currency; and
(d) ‘includes’ in any form is not a word of limitation.
15.3 The terms and conditions cannot be varied except for by written agreement signed by the parties.
15.4 VAM Digital’s remedies under the Agreement are without prejudice to any other remedies it has under the Agreement or at law.
15.5 No provision of the Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.
15.6 No waiver by VAM Digital of a breach of this Agreement by the Client constitutes a waiver for any subsequent or continuing breach by the Client.
15.7 The Agreement is governed by the laws of Western Australia and the parties submit to the jurisdiction of the court of Western Australia and any courts which have jurisdiction to hear appeals from any of those courts.
15.8 If any of the provisions of the Agreement are held by a court of competent jurisdiction to be invalid or otherwise unenforceable, that provision may be severed and the remainder of the Agreement will continue to be effective and valid notwithstanding such severance.
15.9 The Client must not assign its interest under the Agreement without the prior written consent of VAM Digital. Any purported assignment in breach of this clause is invalid, unenforceable and otherwise void and does not bind VAM Digital.