LEGAL
This Agreement outlines our respective rights and obligations in relation to the Services Daap Company (DAAP) provides to its clients. If you (“the Client”) have any difficulty in understanding the terms below, please contact the DAAP management team. When interpreting this Agreement, refer to the ‘Definitions’ and ‘Interpretations’ clauses at the end of this Agreement.
1. Agreement & Acceptance
• The Agreement is comprised of the following documents (“Contract Documents”) which together for the entire agreement between the parties:
• Quotes and any Additional Terms contained therein; and this document, as amended from time to time by written notification to the Client.
• To the extent of any inconsistency between the Contract Documents, this Agreement applies.
• This Agreement becomes binding immediately on written, verbal or electronic acceptance of the Quote and can be accepted by any person holding themselves out to be authorized by the Client to do so, including by the Client giving instructions to proceed with any works or acting in a manner which would suggest that the Client wishes to proceed with any works that have been communicated to the Client.
• DAAP may vary this Agreement at any time by giving the Client 14 days’ written notice.
2. Provision of Services
We will provide the Client with the Services in accordance with the Quote on and from the date this Agreement is accepted pursuant to clause 1 and any required initial payment is received, until such time as:
• the Services are complete and/or the Materials are delivered;
• the minimum period stated on the Quote has expired (in the case of Retainer Work); or
• the Agreement is terminated in accordance with clause 12.
3. Company Obligations & Responsibilities
DAAP acknowledges that it shall be responsible for performing the Services in a professional, reasonable and timely manner and shall use its best endeavors to:
• coordinate & communicate with the Client on the progress of the Services;
• lead and coordinate decision-making with third parties as instructed or required to perform the Services;
• briefing the Client on any Project details and assembling the relevant team for the Services; and
• obtaining Client approvals for any final Proofs before releasing to third parties.
4. Communications
• The Client agrees to exchange information generally in writing, electronically. Whilst DAAP will take reasonable precautions including encryption, virus protection and other cyber security measures, to the maximum extent permitted by law.
• Where deemed appropriate by DAAP or if engaged for a live project, the Client agrees to contact DAAP via Video Conference or our project management system of choice.
• Except where expressly provided otherwise in this Agreement, any notice to be given by either Party to the other may be sent via email.
5. Client Obligations & Responsibilities
5.1 General
• The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
• providing instructions to DAAP's team as and when needed;
• provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly agreed;
• final proofreading; and ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
• The Client will be sent a ‘New Client Form’ to complete and agrees to provide accurate and complete information.
• All necessary decision makers/key stakeholders must be present at a briefing session to ensure they can contribute to the agreed Deliverables. Should a key decision maker/stakeholder join the project who has not had input into the original briefing, we reserve the right to hold a new briefing session and additional charges may apply.
• In the event that the Client has approved Deliverables but errors, including (but not limited to) typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.
• The Client acknowledges that the quality of the Services and Materials we provide is dependent on the full cooperation and assistance of the Client. The Client warrant to us that it will: promptly provide accurate and complete instructions and any necessary files or materials required to complete the Services and meet its obligations under clause 4;
• respond to any requests made by us for additional documentation, including (but not limited to) any working logins, images, videos, brand style guides, Client information, consents, or assistance relevant to the delivery of the Services; and
• not cause the delivery of the Services to be unreasonably delayed.
5.2 Client Delay Fee
• The Client acknowledges that DAAP reserves time exclusively to perform Services for its clients. In the event a Client causes a delay in the Services (“Client Delay”), Client shall pay to DAAP, in addition to Fees already incurred through the date of the Client Delay, a Client Delay fee equal to the specified hourly fees for idle time caused by the Client Delay, unless DAAP is able to secure other work for that time for the same or greater compensation.
• The Client acknowledges that if DAAP accepts other work because of a Client Delay, DAAP may adjust the allotted time to complete the Services as necessary to accommodate such other work.
6. Reschedules & Administration Charges
• Once a Deliverable has been scheduled any cancellations must be communicated to DAAP in writing at least two (2) business days prior to the scheduled date.
• The Client is entitled to a maximum of one (1) reschedule, following which, all cancellations and reschedules will incur an administration fee of $250 + GST.
7. Payment Terms
In return for the provision of the Services, the Client agrees to pay DAAP:
• the Fees, including any deposit required before the commencement of work; and
any Expenses.
• Where it is practical to do so, DAAP will endeavor to obtain the Client’s consent before incurring any Expenses. However, the Client’s liability is not contingent on DAAP obtaining prior consent, if the Expense is required for completion of a Deliverable.
• DAAP will invoice the Client for the Fees and Expenses in accordance with the terms set out in the Quote. Invoices are billed 50% on engagement and are required to be paid before we start any work, and either 2 x 25% installments or 50% on completion, provided the project can be completed within a month.
• The Client must pay any invoice issued by DAAP within 7 calendar days of receipt to the bank account nominated in the invoice.
• The Client agrees to provide thorough and accurate information about their business on commencement via a New Client Form and DAAP reserves the right to conduct reasonable due diligence on the company based on the information provided.
• If the Client contracts DAAP for a recurring service or several recurring services, they agree to: pay by direct debit and to give DAAP authority to automatically debit the Client’s nominated card or account for the required payment and to ensure their nominated credit card remains valid;
• invoices are required to be paid upfront a month in advance each month via auto-debit & the Client will be required to fulfil the minimum term outlined on the estimate. Should the Client wish to cease prior to fulfilling the term, we reserve the right to bill all outstanding charges;
• potential variations to the service – If it becomes apparent to DAAP that the Fees for a Retainer Services are not sufficient for the services required, DAAP may increase during the Retainer Period on notice to the Client acting in good faith; and
• request suspension due to exceptional circumstances. Such requests must be made by emailing the relevant DAAP Account Manager providing the reasons for the request which will be escalated to management for their consideration and for approval at their discretion.
• If the Client prefers not to pay by direct debit for a recurring service, the Client agrees to:
• become a DAAP ‘Approved Customer’ which will see DAAP conduct a Credit Check of their registered details including ABN and other relevant data.
• provide two trade references which will be contacted; and directors to provide personal guarantor of payment.
Where any adverse credit detail is discovered, DAAP reserves the right to decline any further engagement or this payment method and will be entitled to place a hold on their account or DAAP credit limits have been reached.
• If the client chooses to pay using QuickaPay or similar services, the Client understands that these are separate third-Party organisations and agrees to indemnify DAAP from any potential loss incurred.
• If the Client does not communicate with DAAP for any 12 month period, it will forfeit any amounts held in credit.
• All invoices issued by DAAP do not include advertising expenditure spend, which will be debited from the client’s account.
• DAAP has no obligation to provide the Client with a refund due to a change of mind, business circumstances or any other unforeseen circumstance.
8. Consequences of Non-Payment
• If the Client fails to make a payment as required under this Agreement, in addition to termination under clause 12, DAAP may at its discretion:
• charge interest on any outstanding amount due under this Agreement at a rate of 4% per month; and
• temporarily pause or suspend the provision of the Services until such time as the particular payment is made by the client in full (together with any interest); and/or
• prioritise other client work whose deposits or progress payments have been paid.
• The Client will be liable for and indemnifies DAAP for any reasonable costs incurred by us in recovering any unpaid amounts under this Agreement, including but not limited to any legal, bank or collection agency fees.
9. Goods & Services Tax (GST)
• Where words and expressions used in this clause 9 shall have the same meaning as those words and expressions in the GST Act.
• All invoices issued by DAAP will be exclusive of GST, unless otherwise indicated, and will not include any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the supply of the Services. DAAP will be entitled to invoice the Client for GST and the Client agrees to indemnify TCC for any for such taxes, duties or charges.
• Subject to clause 9, if DAAP makes a taxable supply in connection with this Agreement then the party liable to pay for the taxable supply must also pay the amount of any GST payable in respect of the taxable supply.
• If this Agreement requires the Client to pay, reimburse or contribute to an amount paid or payable by DAAP in respect of an acquisition from a third party for which DAAP is entitled to claim in input tax credit, the amount required to be paid, reimbursed or contributed to by the Client will be the value of the acquisition by DAAP plus, if DAAP’s recovery from the Client is a taxable supply, any GST payable under this clause 9.
• A party who has a right to payment under this Agreement must give the party liable to pay for the taxable supply a valid tax invoice in accordance with the GST Act.
10. Additional Services & Variations
• Where the Client wishes DAAP to vary the Services by changing the scope of work in the quote or requesting additional services (“Additional Services”), the Client must provide DAAP with written notice, which must detail the request and all relevant details.
• The Client acknowledges that DAAP may not be able to facilitate this request within the parameters of the Quote. Subject to clause 10, should DAAP agree to the request, DAAP may issue the Client a new Quote and the terms of this agreement will apply to the same, once accepted by the Client.
• DAAP reserves the right to charge the Client additional fees at its Hourly Rate for all time spent carrying out Additional Services in addition to the Services contemplated in the Quote. This includes but is not limited to the Client not providing necessary logins, files, imagery, documents or other items required to commence or progress the Services. Where a client requires assistance in resolving access issues, establishing the correct set up, or resolving any other issues which may prevent us from commencing, progressing the work, additional charges may be incurred.
• In the event that the Client wishes to vary the Term of the Agreement by suspending the Services temporarily during the Term, the Client must provide to DAAP fourteen (14) days’ written notice prior to the commencement date of the requested suspension.
• DAAP will allow the Client to suspend the subscription for a maximum of three (3) consecutive months during the Term and the Term will be extended only by the period of the Suspension.
• During the suspension period, DAAP will not be obliged to provide the Services and the Client will not be charged for those Services not rendered.
• Neither party will exercise its rights under clause 12 during any period of suspension and a suspension period is not considered a breach of the Agreement under clause 12.
11. Confidentiality
• Neither party may disclose any Confidential Information to a third party, unless required to do so by law, in which case they must, where possible, give the other party reasonable notice and opportunity to challenge such disclosure.
• Each party agrees to use all practical steps to protect the Confidential Information and ensure it is not disclosed to anyone other than its employees or persons acting on its behalf to perform its obligations under this agreement.
• Each party must immediately notify the other if it believes that there has been unauthorized access to, or disclosure of any Confidential Information.
• This confidentiality undertaking will continue to remain in force after this Agreement has ended.
12. Termination
• Either party may terminate this Agreement at any time by providing the other with 30 days written notice.
• On termination of this agreement all unpaid Fees and Expenses will become immediately due payable.
The interpretation and construction of this Agreement will be governed and determined in accordance with the law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that state.
Last Updated 24 September 2021