Service Agreement Terms and Conditions.

Archived 12 June 2024

Background

The Client is of the opinion that Squawk Digital (ABN: 73512735498) has the necessary qualifications, experience and abilities to provide services to the Client.

Squawk Digital is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement.

IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and Squawk Digital (individually the "Party" and collectively the "Parties" to this Agreement) agree as follows:

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Right to refuse project

All estimates are provided to you without any obligation on our part. If, for any reason, we do not believe that we can carry out a project, we can (in writing) refuse the project at any time up to the date upon which you write to accept our estimate and for 7 days after that date. If you have made any payment to us prior to the date upon which we refuse the project, we will refund the payment to you in full less any reasonable administrative costs.

Right to re-cost estimates

Estimates are based on all stages of a project being accepted by you exactly as specified in the estimate. Any estimate we provide remains valid for 14 days from the date of the estimate, unless otherwise noted. If (for any reason) you do not accept any of the stages, we reserve the right to re-cost the project and you will be bound by the new estimate.

If you request changes or additional work (to that specified on the approved estimate), the project may need to be re-costed and a new estimate will be provided.

The proposed delivery date will also be rescheduled to a suitable time agreed by both parties. If the project is cancelled or postponed prior to completion, you will be billed for the services and materials incurred up to that point. You are also responsible for increases in materials and third party services (eg. graphic designers and website developers) where the increases are beyond our reasonable control.

All fees quoted by Squawk Digital are exclusive of GST unless otherwise stated. Where GST is applicable, it will be added to the quoted fee at the current rate (10%) and itemised separately on the invoice. The Client is responsible for paying GST in addition to the quoted fee.

Variations & Additional Costs

If during the course of our engagement there are changes in the Services Provided, the changes will be treated as a Variation.

Where a Variation occurs Squawk Digital reserves the right to halt work and review the Service costings. Squawk Digital will discuss the Variation with you and where required will issue a written proposal which is to include the modifications to the Services and any associated costs.

Squawk Digital will not proceed with the Services until Squawk Digital receives your approval to proceed.

The following are examples of possible Variations:

• Introduction of additional requirements not discussed before accepting the project - content sourcing or editing, compliance with required online applications (Google Analytics or Google Ads)

• Additional Service management time

• Reschedules and delays due to to Client staff, process and procedures that was not known at time of quoting

• Overtime required to meet deadlines due to Client delays in obtaining approval, sourcing content or feedback.

It’s our process to, within the best of our knowledge and ability, factor Service Management time in all quotes however Squawk Digital are sometimes required to manage both our own team and yours - if this was not known at time of quoting it will be treated as a Variation.

If there are small changes to the service during our engagement Squawk Digital will contact you and provide an Additional Cost.

Where possible we will obtain approval from you regarding the additional costs before proceeding however at times deadline or availability constraints can prevent this and we will proceed with the work.

Additional Costs will be billed separately at current professional hourly rates.

Services Provided

The Client hereby agrees to engage Squawk Digital to provide the Client with the services outlined within their Letter of Engagement. Squawk Digital hereby agrees to provide such Services to the Client.

The Services will also include any other tasks which both Parties agree on in writing.

You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore:

• the Services will not be error-free or uninterrupted; and your access to the Service and the operation of the Service will not be error-free or uninterrupted.

• Squawk Digital reserves the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by Squawk Digital’s negligence or willful acts or omissions.

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Hours of Service

All Services will be carried out between 9:00 am and 5:30 pm (AEST), Monday to Friday excluding public holidays and the Christmas / New Year closure periods.

Retainer Arrangements

Where the Client has engaged Squawk Digital on a retainer basis, the following terms apply:

The retainer fee entitles the Client to a set number of hours of Services per calendar month, as specified in the Letter of Engagement (the "Retainer Hours").

Unused Retainer Hours do not accumulate, carry over, or roll over to any subsequent month. Any Retainer Hours not utilised within the calendar month in which they are allocated are forfeited without refund or credit.

The retainer fee is payable in full each month regardless of whether the Client utilises the full allocation of Retainer Hours in that month.

Where the Client requests Services that exceed the Retainer Hours in a given month, the additional hours will be treated as Additional Costs and billed at Squawk Digital's current professional hourly rate. Squawk Digital will notify the Client where possible before Retainer Hours are exceeded, however this may not always be possible due to campaign or deadline requirements.

Term of Agreement.

The term of this Agreement (the "Term") will begin on the date of your Letter of Engagement and will remain in full force and effect until the date listed, subject to earlier termination as provided in this Agreement. The Term of this Agreement may be extended with the written consent of the Parties.

In the event that either Party wishes to terminate this Agreement prior to date, that Party will be required to provide a calendar month’s notice (1 calendar month) written notice to the other Party.

Performance

The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.

Force Majeure

Neither Party will be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is caused by circumstances beyond that Party's reasonable control, including but not limited to acts of God, natural disasters, pandemic, government action, platform outages caused by third-party providers, or widespread internet disruptions ("Force Majeure Event").

The Party affected by a Force Majeure Event will notify the other Party as soon as practicable and will use reasonable endeavours to resume performance as quickly as possible.

If a Force Majeure Event continues for more than thirty (30) days, either Party may terminate this Agreement on written notice without penalty, and the Client will be liable only for Services performed up to the date of termination.

Payment

Squawk Digital will charge the Client for the Services at the rate and frequency listed within their Letter of Engagement (the "Payment").

The Client will be invoiced payment in advance. Invoices submitted by Squawk Digital to the Client are due within 14 days of receipt.

Squawk Digital is responsible for paying any Superannuation Guarantee contributions that may be required in relation to the work performed by Squawk Digital or by employees of Squawk Digital under this Agreement.

All fees quoted by Squawk Digital are exclusive of GST unless otherwise stated. Where GST is applicable, it will be added to the quoted fee at the current rate (10%) and itemised separately on the invoice. The Client is responsible for paying GST in addition to the quoted fee.

Unless all outstanding bills are fully paid, Squawk Digital reserve the right to:

(i) not begin, continue or deliver any work; and

(ii) retain any goods you supply to us and/or which have been produced for you.

Unless agreed otherwise, paying within time is essential to us continuing or completing any further work for you

Overdue accounts

Any late payments will trigger a fee of 10.00% per month on the amount still owing.

Confidentiality

Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.

Squawk Digital agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any confidential information which Squawk Digital has obtained, except as authorised by the Client or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement.

All written and oral information and material disclosed or provided by the Client to Squawk Digital under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to Squawk Digital.

Privacy and Data Handling

The Parties acknowledge that in the course of delivering the Services, Squawk Digital may have access to personal information (as defined under the Privacy Act 1988 (Cth)) belonging to the Client or the Client's customers.

Squawk Digital agrees to handle any such personal information in accordance with the Australian Privacy Principles under the Privacy Act 1988 (Cth), and will not collect, use, or disclose personal information except as necessary to deliver the Services or as required by law.

Squawk Digital will promptly notify the Client if it becomes aware of any actual or suspected unauthorised access to, or disclosure of, personal information held in connection with this Agreement.

The Client warrants that it has obtained all necessary consents and has authority to provide Squawk Digital with access to any personal information required for the delivery of the Services, including customer data used for advertising audiences, email marketing, and analytics purposes.

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Ownership of Intellectual Property

All intellectual property and related material developed or produced specifically for the Client under this Agreement ("Deliverables") will become the property of the Client upon receipt of full payment for the Services to which those Deliverables relate.

Until full payment has been received, all intellectual property rights in the Deliverables remain with Squawk Digital. Squawk Digital grants the Client a non-exclusive licence to use the Deliverables solely for the purposes for which they were created, which licence is conditional on payments remaining current.

Pre-existing intellectual property owned by Squawk Digital that is incorporated into the Deliverables (including templates, frameworks, processes, and methodologies) remains the property of Squawk Digital. The Client is granted a non-exclusive, non-transferable licence to use such pre-existing intellectual property solely as incorporated into the Deliverables and solely for the Client's internal business purposes.

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Return of Property

Upon the expiry or termination of this Agreement, Squawk Digital will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.

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Capacity/Independent Contractor

In providing the Services under this Agreement it is expressly agreed that Squawk Digital is acting as an independent contractor and not as an employee. Squawk Digital and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.

Equipment & Tools

Squawk Digital provides and maintains its own equipment, devices, software, and subscriptions required to perform the Services under this Agreement. The Client is not required to supply equipment or tools to Squawk Digital for the purpose of delivering the Services.

The provision of Squawk Digital's own equipment is consistent with Squawk Digital's status as an independent contractor and does not in any way create or imply an employment relationship between the Parties.

Where the Client's own platforms, tools, or systems are required for the delivery of Services (including but not limited to advertising platform accounts, CMS access, analytics platforms, and email marketing tools), the Client is responsible for providing Squawk Digital with appropriate access at no cost to Squawk Digital.

Notice

All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the address listed within their Letter of Engagement.

Modification of Agreement

Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorised representative of each Party.

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Time of the Essence

Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.

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Assignment

Squawk Digital will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client.

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Entire Agreement

It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.

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Enurement

This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.

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Titles/Headings

Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.

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Gender‍ ‍

Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.

Dispute Resolution

In the event of a dispute arising out of or relating to this Agreement, the Parties agree to attempt to resolve the dispute through good faith negotiation within fourteen (14) days of one Party notifying the other of the dispute in writing.

If the dispute is not resolved through negotiation within that period, the Parties agree to attempt mediation before commencing any legal proceedings. The mediator will be agreed upon by both Parties, or in the absence of agreement, appointed by the Tasmanian chapter of the Resolution Institute.

Nothing in this clause prevents either Party from seeking urgent injunctive or other interim relief from a court where necessary to protect their interests.

Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of Tasmania.

Limitation of Liability

To the maximum extent permitted by law, Squawk Digital's total liability to the Client arising out of or in connection with this Agreement — whether in contract, tort (including negligence), statute, or otherwise — is limited to the total fees paid by the Client to Squawk Digital in the three (3) months immediately preceding the event giving rise to the claim.

Squawk Digital is not liable for any indirect, incidental, special, or consequential loss or damage, loss of profits, loss of revenue, loss of data, or loss of business opportunity, even if Squawk Digital has been advised of the possibility of such loss.

Nothing in this clause limits liability for fraud, wilful misconduct, or any liability that cannot be excluded or limited under applicable Australian law, including the Australian Consumer Law.

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Severability

In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.