Terms & Conditions

Terms & Conditions

This agreement, which includes the below Key Agreement Details as well as the terms and conditions on the following pages (collectively, this agreement), sets out the terms on which we provide photography and marketing services to you. By reading this agreement, you agree not to disclose the terms of this agreement (including fees charged by Word of Mouse Marketing) to any third party and agree that this agreement and its terms are confidential information. You will be taken to have to have accepted these terms and conditions if you sign these terms and conditions or otherwise indicate your assent by continuing to instruct us after becoming aware of these terms.
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1. KEY AGREEMENT DETAILS​

In the event of any inconsistency between these terms and conditions and the Key Agreement Details, the clauses of these terms and conditions will prevail to the extent of such inconsistency.

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

1. SCOPE OF SERVICES

  • a. In consideration for the payment of the Fees, Word of Mouse Marketing will provide the Client with the services set out in the Key Agreement Details (Services).
  • b. Unless otherwise agreed, Word of Mouse Marketing may, in its discretion:
  • 1. not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
  • 2. 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 notice by Word of Mouse Marketing.

2. CHANGES TO SCOPE

  • a. The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Word of Mouse Marketing (Change Fee) for changes to Services requested by the Client which alter the scope set out in the Key Agreement Details and requires Word of Mouse Marketing to perform additional work or incur additional costs (Changes).
  • b. Word of Mouse Marketing may in its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
  • c. Word of Mouse Marketing will only be required to perform the Changes if:
  • 1. Word of Mouse Marketing agrees in writing to perform the Changes;
  • 2. the Client confirms in writing that they wish for Word of Mouse Marketing to proceed with the Changes and the relevant Change Fee; and
  • 3. 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.

3. REPORTS

  • a. If the Key Agreement Details say that reports are included in the Services, Word of Mouse Marketing 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, Word of Mouse Marketing 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, Word of Mouse Marketing may at its discretion provide Reports to the Client but is under no obligation to do so.

4. SECURITY

  • Word of Mouse Marketing will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Word of Mouse Marketing 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.

5. DISCLAIMER

  • The Client acknowledges and agrees that:
  • a. all information provided as part of the Services is an opinion only, based on Word of Mouse Marketing’s experience and best practice;
  • b. Word of Mouse Marketing 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.

6. EXCLUSIVITY

  • The Client agrees and warrants that:
  • a. it appoints Word of Mouse Marketing 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 Word of Mouse Marketings while it is receiving the Services; 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 Word of Mouse Marketing.

4. SPECIFIC SERVICES

1. SEO SERVICES

  • If the Key Agreement Details state that the Services include search engine optimisation services (SEO Services):
  • a. the Client must provide Word of Mouse Marketing access to its website, Google Ad accounts, Google Analytics and Google Search Console, allowing Word of Mouse Marketing to sign in or be added as a user or get marketing access;
  • b. Word of Mouse Marketing makes no promise or guarantee regarding the effectiveness of any SEO Services. Word of Mouse Marketing 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 Word of Mouse Marketing’s control, including:
  • 1. changes in the policies and/or ranking algorithms of search engines;
  • 2. changes to the Client’s account occasioned by a party other than Word of Mouse Marketing; and
  • 3. the platform that is used by Word of Mouse Marketing to perform the SEO Services changing its functionality, and Word of Mouse Marketing will not be liable for any loss or damage suffered by the Client arising from any such circumstances.

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. Word of Mouse Marketing 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 Word of Mouse Marketing’s control including:
  • 1. the Client’s account that is used by Word of Mouse Marketing to perform the Paid Advertising being cancelled or disabled on a temporary or permanent basis;
  • 2. the platform that is used by Word of Mouse Marketing to perform the Paid Advertising changes its functionality; or
  • 3. fluctuations in market responsiveness and need for the Client’s products or services, and Word of Mouse Marketing 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 Word of Mouse Marketing do not include Paid Advertising ad spend amounts or Word of Mouse Marketing’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 Word of Mouse Marketing will charge you the Paid Advertising Fees as part of the Fees instead of separately.
  • e. If Word of Mouse Marketing uses its own account to provide Paid Advertising Services, the account will be owned and operated by Word of Mouse Marketing (Word of Mouse Marketing Ad Account).
  • f. Word of Mouse Marketing will own all Intellectual Property Rights in the information, data and other material in the Word of Mouse Marketing Ad Account.
  • g. The Client will have no rights to access, operate or use the Word of Mouse Marketing Ad Account at any time, including after the Term.
  • h. If Word of Mouse Marketing will use the Client’s Paid Advertising account (Client Ad Account) to provide the Paid Advertising Services, then Word of Mouse Marketing will ensure that, after the relevant Term:
  • 1. Word of Mouse Marketing will not access the Client Ad Account; and
  • 2. the Client is provided access to the Client Ad Account.

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. Word of Mouse Marketing reserves the right to determine the choice of programming language(s) used in the Website Design;
  • b. Word of Mouse Marketing may add content to the Website Design. However, Word of Mouse Marketing 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 Word of Mouse Marketing is required to purchase the website domain on the Client’s behalf, Word of Mouse Marketing will not hand over access to that domain until the Client has made final payment for the domain to Word of Mouse Marketing;
  • d. Word of Mouse Marketing will not provide any graphics for the Website Design, and if Word of Mouse Marketing requires the Client to provide graphics, the Client must provide Word of Mouse Marketing with graphic files in an editable, high resolution, vector digital format;
  • e. Word of Mouse Marketing only tests websites in desktop resolution in the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox;
  • f. Word of Mouse Marketing only tests websites mobile responsiveness on iOS Safari and Google Chrome on Android phones; and
  • g. the Client must at all times cooperate with Word of Mouse Marketing, including by providing prompt and clear instructions in relation to the Website Design.

4. SOCIAL MEDIA MARKETING SERVICES

  • a. If the Key Agreement Details state that the Services include social media marketing, Word of Mouse Marketing will manage the Client’s social media accounts nominated in the Key Agreement Details provided that the Client provides Word of Mouse Marketing 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. Word of Mouse Marketing’s performance of the social media marketing services may be affected by circumstances outside Word of Mouse Marketing’s control including:
  • 1. the Client’s account that is used by Word of Mouse Marketing to perform the social media marketing services being hacked, cancelled or disabled on a temporary or permanent basis; and
  • 2. the social media platform changes its functionality, and Word of Mouse Marketing will not be liable for any loss or damage suffered by the Client arising from such circumstances.

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 Word of Mouse Marketing uses storage servers that may be located outside Australia.
  • b. (service quality) While Word of Mouse Marketing will use its best efforts to select an appropriate hosting provider, it does not guarantee that:
  • 1. the Hosting Services will be free from errors or defects; or
  • 2. the Hosting Services will be accessible or available at all times;
  • c. (backups & disaster recovery) Word of Mouse Marketing will use its best efforts to create scheduled daily backups of Client Data stored by Word of Mouse Marketing. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Word of Mouse Marketing 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) Word of Mouse Marketing’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.

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.

7. GRAPHIC DESIGN

  • If the Client requires Word of Mouse Marketing 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 Word of Mouse Marketing in relation to any loss or damage that may arise in connection with a breach of this clause.

8. INFLUENCERS

  • If the Services include Word of Mouse Marketing 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. Word of Mouse Marketing is not responsible for, and will not be liable for any loss or damage suffered by the Client arising from:
  • 1. the Influencer’s failure to perform the services as agreed or at all;
  • 2. 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
  • 3. any damage suffered to the Influencer in connection with performing the Influencer’s services.

5. THIRD PARTY TERMS & CONDITIONS

  • a. If the Services involve Word of Mouse Marketing 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 Word of Mouse Marketing will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

6. CLIENT OBLIGATIONS

1. PROVIDE INFORMATION

  • a. The Client must provide Word of Mouse Marketing with all documentation, information and assistance reasonably required by Word of Mouse Marketing 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 Word of Mouse Marketing will not be liable for. If a Client does not respond within the timeframe required by Word of Mouse Marketing for any feedback, the Client authorises Word of Mouse Marketing 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 Word of Mouse Marketing 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 Word of Mouse Marketing 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.

2. ACCESS

  • The Client agrees to provide Word of Mouse Marketing 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 Word of Mouse Marketing 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 Word of Mouse Marketing to perform the Services.

3. THE PREMISES

  • a. (Ownership) The Client warrants that it is the owner of any premises it requests Word of Mouse Marketing 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 Word of Mouse Marketing has clear and free access to the Premises, and to every area of the Premises that Word of Mouse Marketing reasonably needs to access to provide the Services, at the times Word of Mouse Marketing will be providing the Services. The Client must provide Word of Mouse Marketing 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 Word of Mouse Marketing 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, Word of Mouse Marketing will nonetheless be entitled to charge the Client a call-out fee for each member of Word of Mouse Marketing’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 Word of Mouse Marketing 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 Word of Mouse Marketing can carry out the Services on the Premises.
  • f. (No access) Where Word of Mouse Marketing 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 Word of Mouse Marketing 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 Word of Mouse Marketing and its Personnel to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.

4. CLIENT MATERIALS

  • a. The Client warrants that all information, documentation and other material they provide to Word of Mouse Marketing 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 Word of Mouse Marketing will rely on the accuracy of any plans, specifications and other information the Client provides.
  • c. The Client releases Word of Mouse Marketing 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.

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. 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

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. Word of Mouse Marketing 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.

2. INVOICES

  • Word of Mouse Marketing 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.

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.

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 Word of Mouse Marketing, the Client must provide Word of Mouse Marketing 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 Word of Mouse Marketing’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 Word of Mouse Marketing to perform the Services.

5. LATE PAYMENT

  • If the Client does not pay an amount due under this agreement on or before the date it is due:
  • a. Word of Mouse Marketing may immediately suspend provision of the Services;
  • b. Word of Mouse Marketing may seek to recover the amount due by referring the matter to a collection agency;
  • c. without limiting any of Word of Mouse Marketing’s other rights under these terms, the Client must pay Word of Mouse Marketing 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 Word of Mouse Marketing; and
  • d. the Client must reimburse Word of Mouse Marketing 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.

6. EXPENSES

  • Unless otherwise agreed:
  • a. the Client will bear all computer storage, media and related expenses reasonably incurred by Word of Mouse Marketing in connection with the Key Agreement Details; and
  • b. any third-party costs incurred by Word of Mouse Marketing in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Agreement Details.

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 Word of Mouse Marketing, the Client must pay the GST subject to Word of Mouse Marketing providing a tax invoice.

8. CARD SURCHARGES

  • Word of Mouse Marketing 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 Word of Mouse Marketing’s name in the form, size and location as directed by Word of Mouse Marketing;
  • b. the Client must not, during or after the Term, remove the accreditation to Word of Mouse Marketing;
  • c. Word of Mouse Marketing retains the right to describe the Services and reproduce, publish and display the Deliverables in Word of Mouse Marketing’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, Word of Mouse Marketing may:
  • 1. exercise such rights after termination of this agreement, and if the Client is no longer a client of Word of Mouse Marketing;
  • 2. be credited with authorship of the Services and Deliverables; and
  • 3. 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

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:
  • 1. information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
  • 2. information required to be disclosed by any law; or
  • 3. information disclosed by Word of Mouse Marketing 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.

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 Word of Mouse Marketing with which the Client had contact during the course of the Key Agreement Details.

3. PRIVACY

  • a. The parties agree to comply with:
  • 1. if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
  • 2. Word of Mouse Marketing’s privacy policy, in force from time to time.
  • b. Word of Mouse Marketing will keep the Client informed of any changes to its privacy policy during the Term.

4. THIRD PARTY DATA

  • a. The Client warrants, in relation to the personal information and all other data that it provides to Word of Mouse Marketing in connection with this agreement (Third Party Data), that:
  • 1. the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
  • 2. the Client is not breaching any law by providing Word of Mouse Marketing with Third Party Data;
  • 3. Word of Mouse Marketing will not breach any law by performing the Services in relation to any Third Party Data;
  • 4. 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 Word of Mouse Marketing of this, and Word of Mouse Marketing has agreed to perform the Services in respect of that data (being under no obligation to do so); and
  • 5. Word of Mouse Marketing 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 Word of Mouse Marketing 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

1. CLIENT CONTENT

  • a. The Client grants to Word of Mouse Marketing (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.
  • b. The Client:

2. WORD OF MOUSE MARKETING IP

  • a. The Client will not acquire Intellectual Property Rights in any Word of Mouse Marketing IP. Any Developed IP will be solely and exclusively owned by Word of Mouse Marketing.
  • b. During the Term, Word of Mouse Marketing grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Word of Mouse Marketing IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables
  • c. The Client must not use Word of Mouse Marketing IP and any Developed IP for advertising purposes, outside of use on the Client’s social media accounts (including Facebook and Instagram), unless agreed in the Key Agreement Details or between the parties in writing.
  • d. Subject to clause 10.2(e), at the end of the Term, the Client’s licence to Word of Mouse Marketing IP and Developed IP will be revoked and the Client is not entitled to use the Word of Mouse Marketing IP or Developed IP in any way.
  • e. At the end of the Term, the parties may agree in writing to extend the licence to some or all of the Developed IP beyond the Term (Extended Licence). If so, the following terms apply:
  • 1. The parties must agree in writing on:
  • A. the royalties payable to use the Extended Licence;
  • B. the term of the Extended Licence; and
  • C. the specific Developed IP included as part of the Extended Licence.
  • 2. The Extended Licence is non-exclusive, non-transferable, worldwide and revocable.
  • 3. The termination terms at clause 14 applies in respect of the termination of the Extended Licence.

3. DEFINITIONS

  • For the purposes of this clause 10:
  • a. “Client Content” means any documents or materials supplied by the Client to Word of Mouse Marketing 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 Word of Mouse Marketing 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. “Word of Mouse Marketing IP” means all materials owned or licensed by Word of Mouse Marketing 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

Word of Mouse Marketing may subcontract the provision of the Services. Word of Mouse Marketing will be responsible for the acts or omissions of its subcontractors as if they were the acts or omissions of Word of Mouse Marketing.

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 Word of Mouse Marketing 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 Word of Mouse Marketing 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 Word of Mouse Marketing 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’:
  • 1. breach of any term of this agreement;
  • 2. breach of any third party intellectual property rights; or
  • 3. negligent, fraudulent or criminal act or omission.
  • c. (Consequential loss) Word of Mouse Marketing 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 Word of Mouse Marketing, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.

14. TERMINATION

1. TERMINATION RIGHTS

  • a. Word of Mouse Marketing 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. After the Minimum Term, the Client may terminate this agreement by providing 30 days’ written notice to Word of Mouse Marketing. 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:
  • 1. 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
  • 2. ceases, suspends or threatens to cease or suspend to conduct its business.
  • The date of termination will be the date that notice is given.

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.

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 all Developed IP and Word of Mouse Marketing IP, unless otherwise agreed between the parties in accordance with clause 10.2(e); and
  • c. 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.

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(e).

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:
  • 1. in the case of applications for urgent interlocutory relief; or
  • 2. a breach by another party of this clause.

16. NOTICES

  • a. A notice or other communication to a party under this agreement must be:
  • 1. in writing and in English; and
  • 2. 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:
  • 1. 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
  • 2. 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:
  • b. Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
  • 1. reasonable details of the Force Majeure Event; and
  • 2. 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.
  • c. 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:
  • 1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
  • 2. strikes or other industrial action outside of the control of the Affected Party;
  • 3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
  • 4. 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

1. GOVERNING LAW

  • This agreement is governed by the law applying in New South Wales, Australia.

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.

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).

4. AMENDMENTS

  • This agreement may only be amended by a document signed by each party.

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.

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.

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.

8. INTERPRETATION

9. (singular and plural) words in the singular includes the plural (and vice versa);

10. (gender) words indicating a gender includes the corresponding words of any other gender;

11. (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;

12. (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;

13. (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;

14. (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;

15. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

16. (includes) the word “includes” and similar words in any form is not a word of limitation; and

17. (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.

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