Service Provider Agreement

This Agreement is made between MEDIAGLUE PTY LTD (ABN 95 134 065 759) of PO Box 2595, Southport, QLD, 4219, and the Client as set out below.

BACKGROUND:

Mediaglue Pty Ltd have agreed to provide the Services to the Client, and the Client has agreed to accept that appointment on the terms and conditions set out in this Agreement.

Ninety (90) Day Mediaglue Guarantee:

When you sign up with Mediaglue for six (6) months on the Marketing Automation Program, if after the first ninety (90) days live you are not receiving suitable results, (for the avoidance of doubt this means increased traffic to your website resulting in inbound enquiries after you have properly engaged with us during the monthly marketing review call, and made all recommended changes to your website, contact forms, inbound calls and sales scripts [the “Improvements”]) then we will provide our services to you for the next ninety (90) days at no cost.

To activate this Guarantee you will be required to complete a Statutory Declaration to declare that you have implemented all recommended Improvements, and we reserve the right to confirm that those recommended Improvements have been carried out (including through conducting an internal audit of your account). We reserve the right to deny this Guarantee to any client we find has falsely created or manipulated results. Please note that you will still need to pay third party costs including Google for click costs and engage cooperatively with us in the monthly review process, and this is not included in the Guarantee.

THE PARTIES AGREE, as follows:

1. Appointment. The Client engages Mediaglue Pty Ltd and Mediaglue Pty Ltd accepts that appointment, and will carry out the Services within the Territory on the terms and conditions set out herein.

2. Term. The appointment of Mediaglue Pty Ltd shall begin on the Commencement Date and continue for the Term as set out in the Schedule. At the end of the initial Term, this Agreement shall automatically continue on a rolling monthly basis unless terminated pursuant to this Agreement.

3. Obligations of Mediaglue Pty Ltd. Mediaglue Pty Ltd must:

3.1 provide the Services with a high degree of diligence, quality and efficiency, devote its time, attention and skill to the performance of the Services;

3.2 whilst so providing the Services, remain an independent contractor at all times and, as such:

assume full responsibility for their acts and omissions; and
be solely responsible for any payments in respect of any employment benefits payable, including any sick leave, long service leave, superannuation, workers' compensation, accident, sickness and insurance; and
provide all necessary tools to carry out the Services; and

3.3 whilst so providing the Services, provide prompt and full information to the Client regarding the performance of the Services;

4. Obligations of the Client.

4.1 The Client agrees that it shall provide sufficient details, material and information (“Client Materials”) to Mediaglue Pty Ltd as reasonably requested by Mediaglue Pty Ltd to allow it to carry out the Services.

4.2 The Client agrees to supply the Client Materials to Mediaglue Pty Ltd within a reasonable time frame after execution of this Agreement, or after request from Mediaglue Pty Ltd.

4.3 The Client agrees and acknowledges that any delay caused by the Client failing to provide the Client Materials to Mediaglue Pty Ltd may cause delay to the provision of Services by Mediaglue Pty Ltd. Further, the Client agrees that Mediaglue Pty Ltd shall not be liable for any delay to provision of the Services caused by the failure of the Client to provide the Client Materials in a timely manner.

4.4 The Client shall not submit any Client Materials which are knowingly based on other works and for which the Client has not obtained the necessary rights. The Client indemnifies and keeps indemnified Mediaglue Pty Ltd from any claim made by a third party for a breach of copyright or Intellectual Property Rights as a result of publication or use of the Client Materials.

5. Services

5.1 Mediaglue Pty Ltd warrants that as at the date of this Agreement and during the Term:

(a) the Services will be performed:

with due care and skill in as competent and professional manner as reasonably possible;
in accordance with generally applicable industry standards;
in accordance with the lawful directions and specifications of the Client from time to time; and
in accordance with all applicable laws and regulations.

(b) Mediaglue Pty Ltd is knowledgeable and has the requisite qualifications and experience in the field in which Mediaglue Pty Ltd has been appointed;

subject to Clause 5.2 (d), is the original work of Mediaglue Pty Ltd;
has not been and will not be copied from other work unlawfully;
has in place all consents, approvals, authorities and licenses necessary to carry out the Services lawfully; and
does not knowingly or recklessly infringe any third party’s rights; and

(d) where Mediaglue Pty Ltd’s work is knowingly based on other works, Mediaglue Pty Ltd has obtained the necessary rights in those works.

5.2    The Client agrees and warrants to Mediaglue Pty Ltd that, both during the Term and thereafter:

(a)        Unless expressly authorised by Mediaglue Pty Ltd in writing, the Services provided to the Client shall be for the sole use of the Client. The Client hereby agrees and acknowledges that the Services shall not be used by or shared with the Client’s affiliates or any third party.

(b)        Unless expressly authorised by Mediaglue Pty Ltd in writing, the Client shall not:

disclose, use, disseminate, reproduce or publish any portion of the Service(s) in any manner;
permit any related company, parent company, subsidiaries, affiliated entities or any other third parties to use the Service(s) or any portion thereof;
process any portion of the Service(s) or permit any portion of the Service(s) to be processed with other data or software from any other source;
allow access to the Service(s) through any terminals located outside of the Client’s base operations; and/or
use the Service(s) to create derivative products.

infringes any third party’s copyright, patent, trademark, trade secret, or any other proprietary rights of intellectual property; and/or
violates any law, statute, or regulation.

(d) Unless expressly authorised in writing by Mediaglue Pty Ltd, the Client shall not remove, alter or hide any proprietary notices in the Service(s) provided by Mediaglue Pty Ltd hereunder, and agrees to reproduce all such notices on all copies or part thereof.

6. Intellectual Property

6.1 In this Agreement, “Intellectual Property” means all existing and future intellectual property rights including, but not limited to, copyright (both present and future subsisting throughout the world), registered and unregistered trademarks, trade names, slogans, logos, emblems, computer data and digital representations, designs, industrial designs, drawings, trade secrets, visual representations, registered and unregistered patents, know-how and patentable inventions.

6.2 The Parties agree that in the course of delivering the Services, Mediaglue Pty Ltd shall be providing the Client with creative assets, keyword research, and strategic assistance. The Client acknowledges and agrees that these have been developed by Mediaglue Pty Ltd and contained the Intellectual Property of Mediaglue Pty Ltd. Mediaglue Pty Ltd grants to the Client a royalty-free, fully paid, non-transferable and non-exclusive right and licence to use these deliverables solely for their own purposes.

6.3 The Client grants to Mediaglue Pty Ltd a royalty-free, fully–paid, non-transferable and non-exclusive right and licence for the duration of the Term to use the Client trademark and logo solely and limited for the purpose of carrying out the Services.

6.4 Mediaglue Pty Ltd acknowledges that it acquires no beneficial interest in the Client’s Intellectual Property which at all times remains the property of the Client.

6.5 Mediaglue Pty Ltd grants to the Client a royalty-free, fully–paid, non-transferable and non-exclusive right and licence for the duration of the Term to use Mediaglue Pty Ltd’s trademark and logo solely and limited for the purpose of carrying out the Services.

6.6 The Client acknowledges that it acquires no beneficial interest in Mediaglue Pty Ltd’s Intellectual Property which at all times remains the property of Mediaglue Pty Ltd.

7 Case Studies

7.1 The Client grants Mediaglue Pty Ltd perpetual, worldwide, irrevocable, licence to use, reproduce and display any case studies (“Case Studies”) created using results received in relation to the Services carried out, and that such Case Studies may be used for both marketing and promotional purposes, including but not limited to the Mediaglue Pty Ltd website, proposals, marketing materials, the press, and on any other websites owned and/or operated by Mediaglue Pty Ltd.

8 Fees and Invoices

8.1 The Client agrees to pay to Mediaglue Pty Ltd the Fees plus GST as set out herein.

8.2 Mediaglue Pty Ltd shall provide to the Client invoices for Services provided as follows:

showing the amount payable to Mediaglue Pty Ltd; and
the invoice shall be a tax invoice in accordance with applicable tax legislation.
The Client will pay each invoice upfront prior to Mediaglue Pty Ltd commencing any work pursuant to this Agreement, or as otherwise set out in this agreement.
In the event that this Agreement is terminated by either Party pursuant to Clause 12 of this Agreement, then the Client agrees to immediately pay any unpaid Fees and/or the balance of any unpaid instalment plan in respect to the Fees.
Should it become necessary for Mediaglue Pty Ltd to enforce any term of this Agreement either through legal representation, collection agency, or directly through a small claims Court, then the Client agrees that it shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs.

8.3 The Client agrees that it shall pay Mediaglue Pty Ltd within fourteen (14) days of receipt of a valid and undisputed invoice.

8.4 In the event that any invoice is not paid within fourteen (14) days of its due date, Mediaglue Pty Ltd reserves the right to charge interest of one and a half percent (1.5%), not to exceed the maximum permitted by law.

8.5 In the event that any invoice is overdue by more than fourteen (14) days then Mediaglue Pty Ltd reserves the right to suspend any further delivery of Services and place a stop credit on the account until those overdue monies are paid.

8.6 Should it become necessary for Mediaglue Pty Ltd to enforce any term of this Agreement either through legal representation, collection agency, or directly through a small claims Court, then the Client agrees that it shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs.

8.7 Mediaglue Pty Ltd reserves its rights to review, amend, or vary its Fee structure at any time after the initial Term.

8.8 To the extent permissible by law, Mediaglue Pty Ltd will not refund, exchange, or redeem for cash any Fee or Deposit made to it for Services (“Payment”), unless otherwise agreed by Mediaglue Pty Ltd in writing.

8.9 Mediaglue Pty Ltd will only exchange a Payment where Mediaglue Pty Ltd has made a fundamental error or mistake, in which case the exchange shall be limited to a replacement or reparation of the Services.

9. Relationship of Parties

9.1 The relationship between the Client and Mediaglue Pty Ltd is that of a principal and an independent contractor. Nothing in this Agreement will constitute or deem Mediaglue Pty Ltd to be an employee of the Client nor will anything in this Agreement be construed as creating an employment relationship between the Client and Mediaglue Pty Ltd.

10 Confidentiality

10.1 The following is Confidential Information of the Parties:

technology and all information clearly marked confidential, software architecture, programs, source code, software, designs, systems, methods and procedures, trade secrets, ideas, know-how, plans, concepts and information whether in writing or otherwise, details of customers, business, sales, marketing or promotional information and financial information;
information or communication that is designated by an employee, officer or agent of the Parties to be confidential;
information or communication the recipient knows or reasonably ought to know is confidential or is held in confidence on behalf of a third party;
Intellectual Property of either Party or that Party’s clients or partners;
that part of all notes and other records prepared based on or incorporating information referred to in sub-paragraph (a); and all copies of information and those parts of the notes and other records referred to.

10.2 Both Parties must:

keep all Confidential Information secret and confidential;
not use all or any of the Confidential Information otherwise than for the provision of Services under this Agreement;
take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information.

10.3 The Parties agree that in some instances the Confidential Information may be shared with related entities, employees, agents and contractors on a need to know basis, and that such individuals and entities shall be held to the same standards of confidentiality as set out herein.

10.4 The Parties covenant and warrant that they shall at all times act in good faith in accessing the Confidential Information and shall not act in any way contrary to the commercial interests of the other Party and shall not knowingly circumvent the other Party in its dealings with any other third party as at the date of this Agreement or whilst this Agreement is in force.

10.5 The Parties acknowledge and agree that the Confidential Information is confidential and of significant commercial value and that damages may not be a sufficient remedy for a breach by the receiving party of this Agreement.

10.6 The obligations of confidentiality set out in this Agreement are continuing and shall survive for five (5) years from the termination of this Agreement.

11 Non-Solicitation

11.1 The Parties must not directly or indirectly or through interposed entities on any account in any capacity including on their own account or in partnership or joint venture with any other person, from the date of this Agreement to six months after completion of the provision of Services, solicit, employ or contract any employee or contractor of the other Party, unless otherwise agreed in writing;

11.2 The Parties acknowledge that the restraints under this Clause are reasonable in terms of duration and extent and are reasonably necessary to protect the business interests of the Parties.

12 Termination

12.1 Mediaglue Pty Ltd may terminate this Agreement at any time and for any reason by providing the Client seven (7) days written notice.

12.2 Either Party may terminate this Agreement immediately if:

the other Party commits any act of dishonesty, fraud, wilful disobedience, or wilful misconduct in the course of carrying out the Services;
the other Party breaches any material term contained this Agreement;
any of the following occurs in respect of either Party:
1. The commission of any act of bankruptcy;
2. The entering into or resolution to enter into an arrangement, composition or compromise with or assignment for the benefit of their creditors generally or a class of creditors or proceedings are called to sanction such arrangement, compromise or composition;
3. The appointment of a receiver, receiver and manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over any assets or undertaking;
4. The suspension of payment of debts generally; and/or
5. The Party becomes unable to pay its debts when they are due or is or is presumed to be insolvent.

12.3 The Client agrees and acknowledges that in the event that it wishes to terminate the agreement prior to the expiration of the six (6) month minimum Term, then the client shall be required to pay an early Termination Fee equivalent to the balance of the remaining Fees which would otherwise be payable to Mediaglue Pty Ltd for the initial Term. For the avoidance of doubt in the event that the client wishes to terminate four (4) months after commencement of the Term, the client shall be required to pay an early Termination Fee of two (2) x the monthly Fees.

12.4 The Client agrees and acknowledges that after the initial six (6) month Term the client may terminate this agreement by providing Mediaglue Pty Ltd with thirty (30) days written notice.

13 Limitation of Liability

13.1 Except as provided for in this Agreement, Mediaglue Pty Ltd makes no representation of any kind, express or implied with respect to the delivery of the Services.

13.2 To the extent that any warranty is made, the sole and exclusive remedy for breach of any warranty is that Mediaglue Pty Ltd re-provide the Service(s).

13.3 No warranty is made by Mediaglue Pty Ltd for the performance of third party software, content or equipment or internet Wi-Fi latency.

13.4 The Client agrees to indemnify, defend and hold harmless Mediaglue Pty Ltd, its related entities, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss damage, demand or expense (including reasonable legal costs) asserted by any third party due to, arising from, or in connection with any breach by either party of the terms of this Agreement. This includes, without limitation, any representation or warranty contained herein, any fraudulent conduct committed or negligence by either party, all liabilities related to the Services, any investigation or government claim, and/or any intellectual property claims associated with any and all copy and images supplied by either Party and its associated use thereof.

13.5 No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than six (6) months after the cause of action has accrued and in any event, no later than six (6) months after the termination of this Agreement, except for an action for non-payment brought by Mediaglue Pty Ltd.

13.6 Mediaglue Pty Ltd shall bear no liability whatsoever under or in any way related to this Agreement for any loss, loss of profit, or revenue or for any consequential, indirect, incidental, or exemplary damages.

13.7 If Australian Consumer Law or any other legislation implies a condition or warranty into this Agreement in respect of the Services supplied, and Mediaglue Pty Ltd’s liability for breach of that condition or warranty may not be excluded but may be limited, Clause 13.1 does not apply to that liability and instead Mediaglue Pty Ltd’s liability for such breach is limited to Mediaglue Pty Ltd supplying the services again or paying the cost of having the services supplied again by a third party.

14 Legal and Commercial Advice

14.1 The Client acknowledges that, prior to signing this Agreement, it was advised to seek the advice of an independent legal practitioner and financial advisor in respect to the terms of this Agreement, and in relation to their obligations, rights, and liabilities pursuant to this Agreement.

15 This Agreement

15.1 This Agreement shall be subject to the laws of the Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Australia.

15.2 Any provision of, or the application of any provision of, this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

15.3 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

15.4 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

15.5 The failure of either party at any time to require performance by the other party of any provision of this Agreement does not affect the party's right to require the performance at any time.

15.6 The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.

15.7 This Agreement supersedes all previous agreements, arrangements, understandings, representations or any other communication in respect of the subject matter of this Agreement and embodies the entire agreement between the parties.

15.8 This Agreement may not be changed or modified in any way subsequent to its execution except in writing signed by the parties.

15.9 In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:

words importing the singular include the plural and vice versa;
words with a capital letter where defined in this Agreement have that meaning;
words importing a gender include any gender;
other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
a reference to anything (including, but not limited to, any right) includes a part of that thing;
a reference to a party in a document includes that party's successors and permitted assigns;
a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.

15.10 The Client indemnifies Mediaglue Pty Ltd against any or all taxation liability arising from this Agreement or Services provided to the Client.

15.11 The foregoing provisions of this Agreement apply except as otherwise agreed in writing between the Client on the one hand and Mediaglue Pty Ltd on the other.