Services Agreement
This agreement, which includes the Key Agreement Details below and the terms and conditions on the following pages (collectively, this agreement), sets out the terms on which we provide website design and development services to you.
By reading this agreement, you agree not to disclose the terms of this agreement (including fees charged by Woo Media) to any third party and agree that this agreement and its terms are confidential information.
You will be deemed to have accepted these terms and conditions if you sign them, pay the invoice, or otherwise indicate your assent by continuing to instruct us after becoming aware of them.
Terms And Conditions
1. Documents And Order Of Precedence
(a) This agreement is made up of:
(i) the Key Agreement Details;
(ii) these terms and conditions; and
(iii) Woo Media’s Website Design and Development Policy as in force on the Start Date (Policy).
(b) The Client acknowledges that it has been given access to and has read the Policy, and agrees that the Policy is incorporated into and forms part of this agreement.
(c) If there is any inconsistency between these documents, the following order of precedence applies to the extent of the inconsistency:
(i) the Key Agreement Details;
(ii) these terms and conditions; and
(iii) the Policy.
(d) Woo Media may update the Policy from time to time. The version that applies to the Client is the version in force on the Start Date, unless the parties agree otherwise in writing.
2. Term Of Agreement
(a) This agreement commences on the Start Date specified in the Key Agreement Details and will continue for the Minimum Term specified in the Key Agreement Details (Minimum Term) and any Renewal Terms pursuant to clause 2(b), unless terminated earlier in accordance with clause 14 (the Term).
(b) Upon expiration of the Minimum Term, this agreement will automatically renew for successive 30 day periods (each a Renewal Term) unless either party provides notice that the agreement will not automatically renew with 30 days’ written notice prior to the expiration of the Minimum Term or the then-current Renewal Term.
3. Services
3.1 Scope Of Services
(a) In consideration for the payment of the Fees, Woo Media will provide the Client with the services set out in the Key Agreement Details (Services).
(b) Unless otherwise agreed, Woo Media may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid the invoice in respect of such Services.
(c) Any time frame agreed for the performance of the Services is indicative only and subject to change on (with or without) notice by Woo Media.
3.2 Changes To Scope
(a) The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Woo Media (Change Fee) for changes to Services requested by the Client which alter the scope set out in the Key Agreement Details and requires Woo Media to perform additional work or incur additional costs (Changes).
(b) Woo Media may in its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(c) Woo Media will only be required to perform the Changes if:
(i) Woo Media agrees in writing to perform the Changes;
(ii) the Client confirms in writing that they wish for Woo Media to proceed with the Changes and the relevant Change Fee; and
(iii) the Client agrees to pays the Change Fee.
(d) This agreement will apply to any Services that are the subject of a Change without this agreement needing to be signed again.
(e) (Additional pages and rates) Without limiting clause 3.2(a) above, additional pages beyond those included in the Key Agreement Details are charged from $500 per page + GST, and any additional work or revisions beyond an included allowance are charged at $150 per hour + GST. These are indicative starting rates only. The final Change Fee depends on the scope and amount of work involved, and will be confirmed in a written quote which the Client must request and accept before Woo Media begins the relevant work.
3.3 Reports
(a) If the Key Agreement Details say that reports are included in the Services, Woo Media will provide reasonable reports on website traffic and end user metrics demonstrating the outcomes of the Services (Reports) in accordance with any terms agreed in the Key Agreement Details.
(b) However, Woo Media will not provide Reports on the processes, tactics, approach or other commercially sensitive information used in implementing any particular strategy for the Services.
(c) If the Key Agreement Details does not say that Reports are included in the Services, Woo Media may at its discretion provide Reports to the Client but is under no obligation to do so.
3.4 Security
Woo Media will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Woo Media does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
3.5 Disclaimer
The Client acknowledges and agrees that:
(a) all information provided as part of the Services is an opinion only, based on Woo Media’s experience and best practice;
(b) Woo Media does not guarantee any particular outcome, or any particular decision from any third party, on any issue, if the Client relies on the Services; and
(c) it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
3.6 Exclusivity
The Client agrees and warrants that:
(a) it appoints Woo Media to provide the Services on an exclusive basis for the Term;
(b) it will not make the same or similar arrangements with any third party while it is receiving the Services from Woo Media and
(c) it will not allow any third party to perform services in relation to their business that are the same as, or similar to, the Services, while they are receiving the Services from Woo Media.
4. Specific Services
4.1 SEO Services
If the Key Agreement Details state that the Services include search engine optimisation services (SEO Services):
(a) the Client must provide Woo Media access to its website, Google Ad accounts, Google Analytics and Google Search Console, allowing Woo Media to sign in or be added as a user or get marketing access;
(b) Woo Media makes no promise or guarantee regarding the effectiveness of any SEO Services. Woo Media only endeavours to use its professional skills to deliver an incremental improvement to the Client’s website traffic; and
(c) the Client acknowledges and agrees that the effectiveness of the SEO Services may be affected by circumstances outside Woo Media’s control, including:
(i) changes in the policies and/or ranking algorithms of search engines;
(ii) changes to the Client’s account occasioned by a party other than Woo Media; and
(iii) the platform that is used by Woo Media to perform the SEO Services changing its functionality,
and Woo Media will not be liable for any loss or damage suffered by the Client arising from any such circumstances.
4.2 Paid Advertising
If the Key Agreement Details state that the Services include cost-per-click advertising services such as Google Ads, Google shopping ads, Instagram, YouTube and Facebook/Meta Ads, display ads, retargeting ads, LinkedIn ads, or sales funnels, nurture emails or the design of landing pages (Paid Advertising), the Client acknowledges and agrees that (unless otherwise agreed in writing):
(a) Woo Media makes no promise or guarantee regarding the effectiveness of any Paid Advertising, including as to conversion rates, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results;
(b) the effectiveness of the Paid Advertising may be affected by circumstances outside Woo Media’s control including:
(i) the Client’s account that is used by Woo Media to perform the Paid Advertising being cancelled or disabled on a temporary or permanent basis;
(ii) the platform that is used by Woo Media to perform the Paid Advertising changes its functionality; or
(iii) fluctuations in market responsiveness and need for the Client’s products or services,
and Woo Media will not be liable for any loss or damage suffered by the Client arising from such circumstances.
(c) Unless otherwise agreed in writing (as set out in clause 4.2(c)), the Services Fees charged by Woo Media do not include Paid Advertising ad spend amounts or Woo Media’s service fees to perform the Paid Advertising Services (collectively, Paid Advertising Fees). The Client will be responsible for paying these fees in addition to the Services Fees, along with any deposit set out in the Key Agreement Details.
(d) If agreed, your Service Fees will include Paid Advertising Fees and Woo Media will charge you the Paid Advertising Fees as part of the Fees instead of separately.
(e) If Woo Media uses its own account to provide Paid Advertising Services, the account will be owned and operated by Woo Media (Woo Media Ad Account).
(f) Woo Media will own all Intellectual Property Rights in the information, data and other material in the Woo Media Ad Account.
(g) The Client will have no rights to access, operate or use the Woo Media Ad Account at any time, including after the Term.
(h) If Woo Media will use the Client’s Paid Advertising account (Client Ad Account) to provide the Paid Advertising Services, then Woo Media will ensure that, after the relevant Term:
(i) Woo Media will not access the Client Ad Account; and
(ii) the Client is provided access to the Client Ad Account.
4.3 Website Design Services
If the Key Agreement Details state that the Services include web development services, including building or customising websites (Website Design) the following conditions will apply unless otherwise agreed between the parties in the Key Agreement Details:
(a) Woo Media reserves the right to determine the choice of programming language(s) used in the Website Design;
(b) Woo Media may add content to the Website Design. However, Woo Media will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Website Design;
(c) if Woo Media is required to purchase the website domain on the Client’s behalf, Woo Media will not hand over access to that domain until the Client has made final payment for the domain to Woo Media;
(d) Woo Media will not provide any graphics for the Website Design, and if Woo Media requires the Client to provide graphics, the Client must provide Woo Media with graphic files in an editable, high resolution, vector digital format;
(e) Woo Media only tests websites in desktop resolution in the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox;
(f) Woo Media only tests websites mobile responsiveness on iOS Safari and Google Chrome on Android phones; and
(g) the Client must at all times cooperate with Woo Media, including by providing prompt and clear instructions in relation to the Website Design.
(h) Also refer more details on https://www.woomedia.com.au/website-design-and-development-policy
(i) (Handover on payment) Woo Media is not required to, and may withhold, any of the following until it has received all Fees payable in respect of the website in full:
(i) migrate, deploy or make the website live on the Client’s own hosting or domain;
(ii) transfer or provide administrative access, logins, passwords or control of the website, hosting or content management system;
(iii) provide source files, exports or backups of the website; or
(iv) transfer ownership of, or the Client’s right to use, the Client Deliverables, which is governed by clause 10.2.
(j) (Suspension for non-payment) If Woo Media has made the website live or provided any access before full payment, Woo Media may, without limiting its other rights, suspend, disable, restrict or take down the website, and revoke any access, if any Fee is not paid when due.
(k) (Support after the warranty period) Any support, maintenance, changes or fixes requested after the warranty period stated in the Key Agreement Details are outside the scope of the Services and are chargeable. Unless otherwise agreed in writing:
(i) standard support is charged at $150 per hour + GST;
(ii) complex work, including custom development, integrations, debugging, security or migration issues, is charged at $300 per hour + GST;
(iii) support is booked in minimum blocks of 3 hours per request, and Woo Media may determine whether work is standard or complex, acting reasonably; and
(iv) Woo Media is not responsible for issues caused by the Client’s or a third party’s changes to the website, or by updates to or failures of third-party plugins, themes, hosting or other services, after handover, and any time spent resolving such issues is chargeable at the above rates.
(l) (Third-party products and ongoing costs) The Services and Fees do not include the cost of any third-party products or services needed to operate, host or maintain the website on an ongoing basis, including web hosting, domain registration and renewal, SSL certificates, business email, CDN, backup and security services, booking or scheduling tools, email marketing or CRM tools, payment gateway fees, and premium or “pro” plugins, themes, fonts, stock assets and software licences (Third-Party Costs). Unless the Key Agreement Details say otherwise, the Client is responsible for all Third-Party Costs and for keeping the related accounts, subscriptions and licences current and in the Client’s own name. Woo Media is not liable for any loss, downtime, data loss or interruption to the website caused by a Third-Party Cost not being paid, or by the change, suspension, price increase, failure or discontinuation of any third-party product or service.
(m) (Domain, accounts and credentials) Where Woo Media sets up or holds any hosting, domain, DNS, content management or third-party account or credentials on the Client’s behalf:
(i) Woo Media holds them only to provide the Services, and clause 4.3(c) applies to any domain Woo Media purchases for the Client;
(ii) on full payment of all Fees, Woo Media will give the Client full access to the website by creating new administrator credentials for the Client, rather than disclosing Woo Media’s own passwords or login details;
(iii) at handover, agency tools and any premium or “pro” plugins, themes, fonts or licences used during development may be removed or deactivated, and the Client must obtain its own licences under clauses 4.3(l) and 10.2 if it wishes to keep using them;
(iv) Woo Media is not required to hand over its own development tools, agency accounts, or any accounts or licences it uses across multiple clients; and
(v) the Client is responsible for keeping its credentials secure after handover, and Woo Media is not liable for any loss arising from the Client’s handling of, or failure to maintain, those accounts or credentials.
(n) (Ongoing hosting and management) Woo Media may offer ongoing hosting, maintenance and management of the website as an optional service. If the Client opts in, Woo Media provides it under a separate arrangement for an additional monthly fee notified to the Client, and clause 4.5 (Hosted Services) applies to any hosting Woo Media provides.
(o) (Accessibility) Unless the Key Agreement Details expressly say otherwise, the Services do not include making the website compliant with the Web Content Accessibility Guidelines (WCAG) or any other accessibility standard or law. The Client is responsible for determining and meeting any accessibility requirements that apply to it, and Woo Media can quote separately for accessibility work if requested.
(p) (Search rankings and migration) Woo Media does not guarantee any search engine ranking, traffic or performance outcome. The Client acknowledges that launching or migrating a website can temporarily or permanently affect search rankings, indexing and traffic, and that these are affected by factors outside Woo Media’s control, including search engine algorithms. Woo Media is not liable for any loss of rankings, traffic, leads or revenue following go-live or migration.
4.4 Social Media Marketing Services
(a) If the Key Agreement Details state that the Services include social media marketing, Woo Media will manage the Client’s social media accounts nominated in the Key Agreement Details provided that the Client provides Woo Media with all relevant usernames and passwords or access via Meta Business manager.
(b) Unless otherwise specified in the Key Agreement Details, the social media marketing services will include creating content, engagement, and ongoing management.
(c) Woo Media’s performance of the social media marketing services may be affected by circumstances outside Woo Media’s control including:
(i) the Client’s account that is used by Woo Media to perform the social media marketing services being hacked, cancelled or disabled on a temporary or permanent basis; and
(ii) the social media platform changes its functionality,
and Woo Media will not be liable for any loss or damage suffered by the Client arising from such circumstances.
4.5 Hosted Services
If the Key Agreement Details state that the Services include services to host the Client’s website, application or other information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:
(a) (hosting location) The Client acknowledges that Woo Media uses storage servers that may be located outside Australia.
(b) (service quality) While Woo Media will use its best efforts to select an appropriate hosting provider, it does not guarantee that:
(i) the Hosting Services will be free from errors or defects; or
(ii) the Hosting Services will be accessible or available at all times;
(c) (backups & disaster recovery) Woo Media will use its best efforts to create scheduled daily backups of Client Data stored by Woo Media. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Woo Media will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
(d) (troubleshooting) Woo Media’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.
(e) (Data handling and breach) Woo Media will handle any personal information within the Client Data in accordance with the Privacy Act 1988 (Cth) and its privacy policy. The Client is responsible for ensuring it has the right to provide the Client Data and that doing so complies with applicable privacy and data protection laws. If Woo Media becomes aware of a data breach affecting Client Data it holds, it will notify the Client without undue delay and reasonably assist the Client, and each party remains responsible for its own obligations under applicable privacy laws.
4.6 Telco Services
If the Key Agreement Details state that the Services include telco services, including providing numbers and call recordings (Telco Services) the following conditions will apply unless otherwise agreed between the parties in the Key Agreement Details:
(a) Telco Fees will be set out in the Key Agreement Details or otherwise agreed with you; and
(b) you will have access to call recordings and other Telco Services as agreed with you.
4.7 Graphic Design
If the Client requires Woo Media to use content, graphics or other material belonging to a third party as part of a graphic design, the Client must acquire a licence to use such designs, whether for a fee or otherwise, and indemnifies Woo Media in relation to any loss or damage that may arise in connection with a breach of this clause.
4.8 Influencers
If the Services include Woo Media engaging social media influencers, including persons such as public figures, influential chefs or anyone similar (Influencers) on behalf of the Client to appear in marketing campaigns or otherwise be involved in the Client’s public or online presence (for example, through social media marketing campaigns), the Client acknowledges and agrees that:
(a) any Influencer engagement is directly between the Client and the Influencer;
(b) the Client is required to pay for the Influencers Fees;
(c) Woo Media is not responsible for, and will not be liable for any loss or damage suffered by the Client arising from:
(i) the Influencer’s failure to perform the services as agreed or at all;
(ii) any aspect of the Influencer performing any services for the Client (including any negative press about the Influencer or bad reviews written by the Influencer); and
(iii) any damage suffered to the Influencer in connection with performing the Influencer’s services.
4.9 Artificial Intelligence
If Woo Media uses artificial intelligence or machine learning tools (AI Tools) in the course of providing the Services, including to help produce content, copy, images, graphics, code or design, the following conditions will apply unless otherwise agreed between the parties in the Key Agreement Details:
(a) (Use of AI Tools) The Client acknowledges and agrees that Woo Media may use AI Tools to assist in performing the Services, and that any AI-assisted output is provided on a best efforts basis.
(b) (No guarantee of accuracy) AI-assisted output may contain errors, inaccuracies or omissions. Woo Media does not warrant that any AI-assisted output is accurate, complete, current or fit for any particular purpose, and the Client must review it before it is used or published.
(c) (Imagery and likenesses) Any image, graphic or likeness produced using AI Tools is illustrative only and does not depict, and must not be represented by the Client as, a real or identifiable person, product, premises or event, unless the Client has supplied that image or approved it in writing. Where the Client requires images of real people, including its staff, practitioners or premises, the Client must supply those images in accordance with clause 4.3(d).
(d) (Client review and approval) The Client is responsible for reviewing and approving all content, imagery and other output produced using AI Tools for accuracy, suitability and compliance before it goes live. Content that the Client approves, or that the Client does not review within the timeframe required under clause 6.1(b), is taken to have been accepted by the Client.
(e) (Regulatory compliance) The Client is solely responsible for ensuring that all website content, and the Client’s use of it, complies with all laws, regulations, licensing requirements and professional, industry, ethical or advertising standards that apply to the Client’s business, in every jurisdiction in which the Client operates or is regulated, whether in Australia or overseas. This includes, without limitation and depending on the Client’s industry, the requirements of bodies and regimes such as the Australian Health Practitioner Regulation Agency (AHPRA) and the Health Practitioner Regulation National Law; the Legal Profession Uniform Law and the applicable legal services or bar regulator; the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority (APRA), the Australian Financial Complaints Authority (AFCA) and applicable financial services, credit and consumer protection laws; the Australian Competition and Consumer Commission (ACCC) and the Australian Consumer Law; and applicable privacy and data protection laws; together with any equivalent, replacement or successor body, law or standard, and any overseas regulator or standard that applies to the Client. The Client warrants that it holds all licences, registrations and authorisations necessary for its business. Woo Media is not a regulatory, legal, financial or compliance advisor, and gives no advice, representation, warranty or assurance in relation to the Client’s compliance with any such requirement.
(f) (Responsibility and release) To the maximum extent permitted by law, and subject to clause 12(b), the Client is responsible for its use of any AI-assisted output once approved or published, and releases and indemnifies Woo Media from and against any loss, liability or claim arising out of or in connection with AI-assisted output that the Client has approved, published or failed to review, including any claim that such output is misleading, inaccurate or non-compliant.
(g) (Intellectual property) Clause 10 applies to any AI-assisted output produced by Woo Media as Developed IP, to the extent that Intellectual Property Rights are capable of subsisting in it. The Client warrants that any material it supplies for use with AI Tools does not infringe the Intellectual Property Rights or other rights of any third party.
5. Third Party Terms & Conditions
(a) If the Services involve Woo Media acquiring goods and services supplied by a third party on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) may apply.
(b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing any deliverables, and Woo Media will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
6. Client Obligations
6.1 Provide Information
(a) The Client must provide Woo Media with all documentation, information and assistance reasonably required by Woo Media to perform the Services.
(b) The Client must provide feedback on all documents or other mock-ups provided to the Client within the agreed time frame, if feedback is included in the Services. If the Client delays in providing any feedback, there may be delays in the Services which Woo Media will not be liable for. If a Client does not respond within the timeframe required by Woo Media for any feedback, the Client authorises Woo Media to publish any documents or other content, if required to not cause delays to the Services.
(c) The Client warrants that all information, documentation and other material it provides to Woo Media for the purpose of receiving the Services, including company information, marketing information, financial records and commercial information, is complete, accurate, compliant with any applicable laws and industry regulations, and up-to-date.
(d) The Client releases Woo Media from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.
(e) (Client delay and inactivity) The Client must provide the instructions, approvals, content and other information Woo Media reasonably requires within the timeframes Woo Media notifies. If the Client does not do so, or is otherwise unresponsive:
(i) Woo Media may pause the Services, and any affected timeframes are extended accordingly, and Woo Media is not liable for any delay or its consequences caused by the Client’s inactivity;
(ii) if the Client remains unresponsive for 14 days, Woo Media may treat the current stage as complete, issue any invoice due for work performed to that point, and store the project;
(iii) if the Client remains unresponsive for 30 days, Woo Media may treat the project as abandoned, finalise and invoice all Fees for the Services (whether or not the website has gone live or been reviewed), and close the project; and
(iv) if work is resumed after being paused for more than 30 days, Woo Media may charge a reasonable reactivation fee and re-quote any affected work.
6.2 Access
The Client agrees to provide Woo Media with access to:
(a) the Client’s premises and personnel, to the extent required to perform the Services;
(b) the Client’s Paid Advertising account (including login details, passwords and management access);
(c) the Client’s website (but only where Woo Media is providing Services that involve making updates or changes to the Client’s website); and
(d) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Woo Media to perform the Services.
6.3 The Premises
(a) (Ownership) The Client warrants that it is the owner of any premises it requests Woo Media to provide Services at (Premises), or that the Client has obtained authority from the owner/s of the Premises for the Services to be performed.
(b) (Access) The Client must ensure that Woo Media has clear and free access to the Premises, and to every area of the Premises that Woo Media reasonably needs to access to provide the Services, at the times Woo Media will be providing the Services. The Client must provide Woo Media with any site inductions required before performing the Services at the Premises.
(c) (Clean) On or before the Services begin, the Client must ensure the Premises is clean, unobstructed and ready for Woo Media to carry out the Services, including by ensuring that the Client’s personnel, or third party personnel, do not interfere with the Services, and are not performing services in proximity to the Services such that they may disturb or obstruct the Services. The Client agrees that if the Premises are not clean and ready in accordance with this clause 6.3, Woo Media will nonetheless be entitled to charge the Client a call-out fee for each member of Woo Media’s personnel who were booked to attend the Premises on that day.
(d) (Ready) If the Services include photographing a Premises, it is the Client’s responsibility to ensure that the Premises is ready for Woo Media to carry out the Services, including that any property styling services are complete.
(e) (Authority or approval) The Client must obtain any necessary authority or approval (including strata or building management approval if applicable) so that Woo Media can carry out the Services on the Premises.
(f) (No access) Where Woo Media is unable to gain access to the Premises due to the Client’s non-compliance with this clause 6.3, omission, fault or otherwise, it is the Client’s responsibility to reschedule any Services and Woo Media reserves the right to claim any referable expenses, including travel and lost income and to charge this to the Client.
(g) (Safety) The Client warrants that the Premises are safe for Woo Media and its Personnel to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.
6.4 Client Materials
(a) The Client warrants that all information, documentation and other material they provide to Woo Media for the purpose of receiving the Services is complete, accurate and up-to-date, including floor plans if applicable.
(b) The Client acknowledges and agrees that Woo Media will rely on the accuracy of any plans, specifications and other information the Client provides.
(c) The Client releases Woo Media from all liability in relation to any loss or damage that may arise in connection with the Services, to the extent it is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.
6.5 Compliance With Laws
The Client agrees that it will not by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
6.6 Insurance
(a) The Client acknowledges and agrees that it is responsible for insuring itself against its risks under and in connection with this agreement.
(b) The Client must ensure that it effects and maintains adequate insurance to cover the Client’s risks and liabilities under this agreement and any activities undertaken by the Client in connection with this agreement, including marketing campaigns, including as applicable to the particular activity, business insurance, professional indemnity insurance, errors and omissions insurance and public liability insurance.
7. Payment
7.1 Fees
(a) The Client must pay the Fees in the amounts, and in accordance with the Payment Terms, set out in the Key Agreement Details.
(b) Unless otherwise agreed, all Fees are payable in advance.
(c) Woo Media reserves the right to charge any Fees when the Services or Fees are at 80% of the total spend for the Services, or particular Service or project, to avoid any downtime or delay in providing the Services.
(d) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth), any Fees paid in accordance with this agreement are non-refundable.
7.2 Invoices
Woo Media will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice. The Fees become due and payable in accordance with an invoice regardless of whether the Client has approved any particular concepts or designs scheduled for approval at that time.
7.3 Direct Debit
If the Key Agreement Details state that the Fees are to be paid using direct debit (DD), the Client:
(a) authorises direct debit in line with the third party payment provider’s, as notified to the Client (Payment Provider), separate DD Authorisation Form and any DD agreement as applicable;
(b) agrees to enter into any DD agreement required by our Payment Provider;
(c) authorises us to charge your bank account or credit card in advance in line with any DD Authorisation Form and any DD agreement;
(d) must ensure that there are sufficient funds available in your account to allow our Payment Provider to debit the fees payable; and
(e) acknowledges and agrees that there may be additional payments required from the Payment Provider if you miss or fail to make any payment. These terms are separate and in addition to these Terms.
7.4 Paid Advertising
(a) Unless otherwise agreed in accordance with clause 4.2(d), the Services Fees charged by us do not include Paid Advertising or other digital marketing ad spend amounts, or any other expenses set out in clause 7.6, and the Client will be responsible for paying these fees directly to the relevant platform or otherwise billed to the Client in accordance with clause 7.6.
(b) If requested by Woo Media, the Client must provide Woo Media with its credit card, direct debit or other financial details for the purposes of making digital advertising payments on the Client’s behalf.
(c) The Client consents to Woo Media’s using of the Client’s credit card, direct debit or other financial details on its behalf to make payments for digital advertising services and any other related services reasonably necessary for Woo Media to perform the Services.
7.5 Late Payment
If the Client does not pay an amount due under this agreement on or before the date it is due:
(a) Woo Media may immediately suspend provision of the Services;
(b) Woo Media may seek to recover the amount due by referring the matter to a collection agency;
(c) without limiting any of Woo Media’s other rights under these terms, the Client must pay Woo Media interest at the rate of 15% per annum on each amount outstanding, accruing daily and compounding monthly, from the due date for payment to the date on which payment is received by Woo Media; and
(d) the Client must reimburse Woo Media for any costs it incurs, including any legal costs, in connection with recovering the amount due or enforcing any of its rights under this agreement.
7.6 Expenses
Unless otherwise agreed:
(a) the Client will bear all computer storage, media and related expenses reasonably incurred by Woo Media in connection with the Key Agreement Details; and
(b) any third-party costs incurred by Woo Media in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Agreement Details.
7.7 GST
Unless otherwise indicated, amounts stated in the Key Agreement Details do not include GST. In relation to any GST payable for a taxable supply by Woo Media, the Client must pay the GST subject to Woo Media providing a tax invoice.
7.8 Card Surcharges
Woo Media reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
8. Accreditations
Unless otherwise agreed in writing:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must bear an accreditation and/or a copyright notice including Woo Media’s name in the form, size and location as directed by Woo Media;
(b) the Client must not, during or after the Term, remove the accreditation to Woo Media;
(c) Woo Media retains the right to describe the Services and reproduce, publish and display the Deliverables in Woo Media’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses; and
(d) In connection with such uses under this clause 8, Woo Media may:
(i) exercise such rights after termination of this agreement, and if the Client is no longer a client of Woo Media;
(ii) be credited with authorship of the Services and Deliverables; and
(iii) refer to the Client, and use the Client’s name, logos and other branding (acting reasonably, and without holding itself out as acting on behalf of the Client).
9. Confidentiality, Restraint, Privacy And Data
9.1 Confidentiality
(a) Except as contemplated by this agreement or the Key Agreement Details, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by Woo Media to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
(c) For the purposes of this clause 9.1, “Confidential Information” means information of or provided by a party to the other party under or in connection with this agreement or the Key Agreement Details that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(d) For the Client only, “Confidential Information” also includes the terms of this agreement.
9.2 Restraint
For the duration of the Term and for 1 year thereafter, the Client must not employ, contact, contract or engage (or be knowingly involved in another employing or engaging) any officers, contractors, subcontractors (including offshore outsourcing companies) or employees of Woo Media with which the Client had contact during the course of the Key Agreement Details.
9.3 Privacy
(a) The parties agree to comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
(ii) Woo Media’s privacy policy, in force from time to time.
(b) Woo Media will keep the Client informed of any changes to its privacy policy during the Term.
9.4 Third Party Data
(a) The Client warrants, in relation to the personal information and all other data that it provides to Woo Media in connection with this agreement (Third Party Data), that:
(i) the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
(ii) the Client is not breaching any law by providing Woo Media with Third Party Data;
(iii) Woo Media will not breach any law by performing the Services in relation to any Third Party Data;
(iv) there are no restrictions placed on the use of the Third Party Data (including by any Third Party terms) and if there are any such restrictions, the Client has notified Woo Media of this, and Woo Media has agreed to perform the Services in respect of that data (being under no obligation to do so); and
(v) Woo Media will not breach any Third Party terms by performing the Services in relation to any Third Party Data.
(b) The Client agrees at all times to indemnify and hold harmless Woo Media and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 9.4(a).
10. Intellectual Property
10.1 Client Content
The Client grants to Woo Media (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
The Client:
(a) warrants that Woo Media’s use of Client Content as contemplated by the Key Agreement Details will not infringe any third-party Intellectual Property Rights; and
(b) will indemnify Woo Media from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
10.2 Ownership Of Deliverables And Woo Media IP
(a) The Client will not acquire Intellectual Property Rights in any Woo Media IP. Subject to clause 10.2(b), all Developed IP is owned by Woo Media.
(b) (Ownership on payment) On and with effect from Woo Media’s receipt of all Fees payable under this agreement, Woo Media assigns to the Client all Intellectual Property Rights in the final website and the text, images, graphics and page designs that Woo Media produces specifically for the Client under this agreement (Client Deliverables). The Client Deliverables do not include Woo Media IP, Woo Media Background IP or any Third Party or Pro Licences.
(c) (Going live) If the website is made live before all Fees have been paid, going live does not transfer ownership of the Client Deliverables. Until Woo Media has received all Fees, the Intellectual Property Rights in the Client Deliverables remain with Woo Media, and the Client’s right to use them is a non-exclusive, revocable licence only which Woo Media may suspend or revoke if any Fee is not paid when due.
(d) (Woo Media Background IP) Woo Media retains ownership of all frameworks, code, libraries, design systems, templates, tools, methods and know-how that it owns or develops for general or repeated use and not specifically for the Client (Woo Media Background IP). To the extent any Woo Media Background IP is incorporated into the Client Deliverables, Woo Media grants the Client a non-exclusive, worldwide, royalty free, perpetual and non-transferable licence to use it as part of the Client Deliverables, but not to separately extract, sub-license, resell or commercialise it.
(e) (Third party and pro licences) Any premium or “pro” plugins, themes, fonts, stock assets, software or other third-party materials used by Woo Media in developing the Client Deliverables (Third Party and Pro Licences). These are licensed to Woo Media for development purposes only and are not transferred to the Client. If the Client wishes to continue using any such material after handover, the Client must obtain its own licence at its own cost, which Woo Media can arrange on the Client’s behalf if requested.
(f) (Portfolio) Nothing in this clause limits Woo Media’s rights under clause 8, including to reproduce, publish and display the Client Deliverables in its portfolios and marketing.
10.3 Definitions
For the purposes of this clause 10:
(a) “Client Content” means any documents or materials supplied by the Client to Woo Media under or in connection with this agreement or the Key Agreement Details, including any Intellectual Property Rights attaching to those materials.
(b) “Developed IP” means any materials produced by Woo Media in the course of providing Services or Deliverables including photographs, documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
(c) “Woo Media IP” means all materials owned or licensed by Woo Media that is not Developed IP and any Intellectual Property Rights attaching to those materials.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
11. Subcontracting
Woo Media may subcontract the provision of the Services. Woo Media will be responsible for the acts or omissions of its subcontractors as if they were the acts or omissions of Woo Media.
12. Warranties
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
13. Limitation Of Liability
(a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of Woo Media to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total Fees paid to Woo Media by the Client in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) The Client agrees at all times to indemnify and hold harmless Woo Media and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
(i) breach of any term of this agreement;
(ii) breach of any third party intellectual property rights; or
(iii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) Woo Media will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Woo Media, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
14. Termination
14.1 Termination Rights
(a) Woo Media may terminate this agreement at any time by providing 30 days’ written notice to the Client. The date of termination will be the date that is 30 days from the date of the notice.
(b) The Client may terminate this agreement at any time by providing 30 days’ written notice to Woo Media. The date of termination will be the date that is 30 days from the date of the notice.
(c) Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(i) is in breach of this agreement and either:
(A) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(B) that breach is not capable of remedy; or
(ii) ceases, suspends or threatens to cease or suspend to conduct its business.
The date of termination will be the date that notice is given.
14.2 Accrued Rights And Liabilities
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
14.3 Consequences Of Expiration Or Termination
Upon expiration or termination of this agreement:
(a) the Client will pay any outstanding Fees for Services provided (or that would have been provided but for the termination notice) up to the date of termination;
(b) the Client must pay all amounts owed for Services already provided as at the date of termination;
(c) each party must return all property of the other party to that other party;
(d) the Client must immediately cease using any Woo Media IP, Woo Media Background IP (except to the extent it is embedded in Client Deliverables that the Client owns under clause 10.2) and any Third Party or Pro Licences it has not separately licensed; and
(e) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.
14.4 Survival
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry, including clause 10.2.
15. Dispute Resolution
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) The parties acknowledge and agree that compliance with this clause 15 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause.
16. Notices
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party,
whichever is earlier.
17. Force Majeure
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 17(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of the Affected Party;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
18. General
18.1 Governing Law
This agreement is governed by the law applying in New South Wales, Australia.
18.2 Jurisdiction
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
18.3 Assignment
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
18.4 Amendments
This agreement may only be amended by a document signed by each party.
18.5 Waiver
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
18.6 Further Acts And Documents
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
18.7 Entire Agreement
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
18.8 Interpretation
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(h) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(i) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
18.9 Severability
Any provision of this agreement which is void, unenforceable or illegal in a jurisdiction does not affect the validity, enforceability or legality of the remaining provisions of this agreement in that jurisdiction, or of that provision in any other jurisdiction. If a provision can be read down or narrowed so as to be valid and enforceable, it must be read down or narrowed to the minimum extent necessary; and if it cannot, it is to be severed from this agreement, and the remaining provisions continue in full force and effect.
18.10 Counterparts And Electronic Signature
This agreement may be executed in any number of counterparts, each of which is an original and which together constitute one agreement. The parties agree that this agreement may be signed electronically, that electronic signatures are binding, and that a copy of the executed agreement transmitted by email or other electronic means is to be treated as an original.
19. Contact Us
If anything is not specified in your contract, or you need to understand what a term means, please contact us: info@woomedia.com.au, (02) 8007 4752, 0468 786 276, or Level 2, Suite 28, 181 Church Street, Parramatta NSW 2150. You can also use the contact form on our website.