These terms and conditions apply to all transactions between the Client and KDM relating to the provision of the Services. This includes all Proposals, quotes, contracts and variations.
By engaging KDM to provide the Services, the Client agrees to all of these terms and conditions as may be updated by KDM from time to time.
These terms and conditions create a legally binding agreement between the Client and KDM (Agreement) and commence on the date the Client engages KDM to provide the Services.
KDM will provide the Services to the Client in consideration for the Client paying the Retainer Subscription Fee to KDM, subject to the provisions of this Agreement.
The Services to be performed as agreed by the Parties, including the Project Commencement Date and the Retainer Subscription Fees are set out in the Proposal.
In consideration for the provision of the Services in accordance with this Agreement, the Client will pay KDM the Retainer Subscription Fees.
The Client acknowledges that the Retainer Subscription Fees and other costs included in the Proposal are exclusive of any GST that may be charged by KDM to the Client, and therefore, KDM will be entitled to add on GST. KDM will provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 3.
KDM requires the Client to pay the Retainer Subscription Fees by direct debit through the EziDebit payment platform (Payment Method). Prior to the Project Commencement Date, the Client must complete the Ezidebit Direct Debit Request Form (DDR) and return the DDR to KDM. The Client must ensure that there are sufficient cleared funds in the account nominated on the DDR to enable each direct debit to be honoured on the debit date. The Client acknowledges having received a copy of, and agrees to comply with, the Ezidebit DDR Service Agreement for the duration of this Agreement.
By accepting the Proposal and entering into this Agreement, the Client authorises KDM to charge the Retainer Subscription Fees by direct debit in accordance with this clause 3.
The billing cycle starts on the first day of each month and ends on the last day of each month (Billing Cycle).
The Retainer Subscription Fees will be charged to the Client by direct debit as follows:
Project Commencement Date
Before the 21st day of the month
On the Project Commencement Date, the amount calculated until the end of the Billing Cycle; and
Thereafter in advance on the 21st day of each month.
On or after the 21st day of the month
On the Project Commencement Date, the amount calculated until the end of the Billing Cycle for the subsequent month; and
Thereafter in advance on the 21st day of each month.
Changes to Retainer Subscription Fees
KDM may change the Retainer Subscription Fees payable in relation to the Services from time to time, however, any price changes will apply no earlier than 30 days following notice to the Client.
TERMINATION AND SUSPENSION
If the Client is in breach of any obligation under this Agreement, including if payment of the Retainer Subscription Fees is not successfully settled in accordance with clause 3, due to expiration, insufficient funds or otherwise, KDM may:
Suspend all or part of the Services until the Retainer Subscription Fees have been paid;
Require the Client to pay, in advance, for any Services which have not yet been performed; or
Not perform any further Services and immediately terminate this Agreement by providing written notice to the Client, and KDM will not be liable to the Client for any Loss the Client suffers because KDM exercises its rights under this clause.
If the Client defaults in payment of any Retainer Subscription Fees or other amounts due under this Agreement, the Client shall indemnify KDM from and against all of KDM’s costs and expenses (on a full indemnity basis) arising from the default.
Either party may terminate this Agreement for any reason upon providing the other with written notice prior to the end of the then current Billing Cycle. The termination of this Agreement will be effective at the end of the billing cycle for the following month.
If this Agreement is terminated in accordance with clause 4(c), KDM will continue to provide the Services up to the date the Services have been paid for by the Client. The Client acknowledges and agrees that it will not receive a refund or credit of any Retainer Subscription Fees or other amounts already paid to KDM upon termination of this Agreement.
USE OF SUBCONTRACTORS
KDM is permitted to use other persons to provide some or all of the Services.
KDM is responsible for the work of any of KDM’s subcontractors.
Any work undertaken by any of the KDM’s subcontractors will be undertaken to the same standard as stated in this Agreement and the Proposal.
COMPLIANCE WITH ALL LAWS
Throughout this Agreement KDM must comply at KDM’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority. This requirement applies to KDM or to the Services. KDM must indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.
WARRANTIES, LIABILITIES AND INDEMNITIES
KDM warrants that it will use reasonable care and skill in performing the Services to generally accepted industry standards.
If KDM performs the Services (or any part of the Services) negligently or materially in breach of this Agreement, then, if requested by the Client, KDM will re-perform the relevant part of the Services, subject to clauses 7.2(a) and 7.2(b) below.
The Client’s request referred to in clause 7.1(b) must be made within 2 months of the date KDM completed performing the Services.
Limitation on liability
To the extent permitted by law, the liability of KDM under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Retainer Subscription Fees paid by the Client to KDM under this Agreement. The provisions of 7.2(a) will not apply to clause 6.
Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clauses 6 and 7.3.
The Client indemnifies KDM against, and will compensate KDM for, all Loss incurred by KDM as a direct or indirect result of a breach of this Agreement by the Client and any negligent act or omission or wilful misconduct by the Client or its officers, employees and agents.
No warranties in relation to outcomes
KDM provides no warranty that any result or objective can or will be achieved or attained at all through the provision of the Services. Without limiting the above, KDM makes no warranty that a digital marketing campaign will generate an increase in sales, business activity or profits for the Client’s business. The Client acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
Background Intellectual Property
Each party retains all rights, title and interest in and to its own Background Intellectual Property irrespective of any disclosure of the Background Intellectual Property to the other.
The Client grants KDM a non-exclusive, royalty-free, non-transferable licence during the term of this Agreement to use the Background IP owned by it to the extent necessary and for the sole purpose of the performance of the Services.
Developed Intellectual Property
All right, title and interest in the Developed Intellectual Property vests in and is assigned to the Client with effect from its creation.
Subject to clauses 9.2 and 9.3, each party:
may use Confidential Information in connection with the provision of the Services pursuant to this Agreement (Purpose), and not for any other purpose;
must not copy or reproduce Confidential Information, unless necessary for the Purpose;
must not use Confidential Information to the commercial, financial or competitive disadvantage of the other party;
must not disclose Confidential Information to any person; and
must keep Confidential Information confidential.
Disclosure of Confidential Information
If the Parties consent to disclosure of Confidential Information they must ensure that the authorised recipient is advised of the confidential nature of the information and of the fact that it may not be divulged without the prior consent in writing of all Parties.
Consent not required
The Parties’ may (without consent of the other) disclose the Confidential Information (to the extent reasonably required):
if required by any statute, inquiry, request or order of any court, government or local, state or federal authority having jurisdiction;
to the extent necessary to allow the Parties to carry out their obligations and exercise their rights under this Agreement;
to obtain the advice of any independent accountants, legal advisers and other experts engaged by a Party to give advice with respect to this Agreement or any matter incidental to it; or
where the information is already in the public domain or is lawfully obtained by the disclosing Party from sources other than this Agreement.
Officers, employees and agents
Each Party must procure that its officers, employees and agents act in accordance with the terms of this Clause 9. To the extent that any of its officers, employees or agents do not act in accordance with this clause, then that Party will be liable for the actions of its officers, employees and agents.
WARRANTIES REGARDING CAPACITY
If the Client is a corporation (with the exception of a publicly listed company) it must advise KDM of any alterations to its corporate structure (for example, by changing directors, shareholders or its constitution).
If the Client is a trustee of a trust, the Client warrants that it enters into this Agreement in both its capacity as trustee and in its personal capacity, it has the power to execute this Agreement on behalf of the trust and it will not retire as trustee, or appoint a new or additional trustee without advising KDM in writing.
If the Client is a partnership, the Client warrants that the partner(s) signing this Agreement have the authority to enter into the Agreement and the partnership agrees that it must not alter its structure without advising KDM in writing of the change.
If circumstances beyond KDM's control prevent or hinder its provision of the Services, KDM is free from any obligation to provide the Services while those circumstances continue. KDM may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
Circumstances beyond KDM's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems, epidemics and pandemics.
RELATIONSHIP OF PARTIES
The parties are independent contractors. No party is authorised to bind or to make representations on behalf of another party, or to pledge its credit, except as expressly provided in this Agreement. Nothing in this Agreement is to be interpreted as creating an employment, agency, partnership or joint venture relationship between any parties.
This Agreement constitutes the entire agreement between the parties relating in any way to the subject matter. All previous negotiations, understandings, representations, warranties or commitments about the subject matter are merged in this Agreement and are of no further effect.
If any provisions of this Agreement shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
Failure by KDM to enforce any terms of this Agreement shall not be construed as a waiver of any of KDM’s rights hereunder or a waiver of continuing breach.
All Services supplied by KDM are subject to, and this Agreement shall be governed, by the laws of the State of Queensland, Australia and the Client submits to the jurisdiction of the courts of that State.
All payments required to be made by the Client under this Agreement must be made free of any set-off or counterclaim and without deduction or withholding whatsoever.
KDM reserves the right to review the terms of this Agreement at any time from time to time. If, following any such review, there is to be any change, it will take effect from the date on which KDM notifies the Client of such change.
The Client must not assign, or purport to assign, any of its obligations or rights under this Agreeement without the prior written consent of KDM. KDM has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this Agreement provided that the assignee agrees to assume any duties and obligations of KDM owed to KDM under this Agreement.
In this Agreement, the following words have the following meanings:
Agreement means these terms and conditions entered into between the Client and KDM.
Background Intellectual Property means:
any Intellectual Property of a Party existing prior to the commencement of this Agreement; and
all Intellectual Property that is conceived or developed by a Party outside the scope of this Agreement without the use of the other Party’s Confidential Information or Intellectual Property.
Confidential Information means:
the terms of this document;
all information and communications given by a party to another party in connection with this document;
information which is identified, whether orally or in writing, by a party as confidential;
the Intellectual Property;
information relating to a party's business interests, assets, methodology, processes, intellectual property, trade secrets, inventions and affairs, including information about a party's officers, employees and agents, information about a party's customers and suppliers, manuals, policies, reports and decisions of a party, strategies, forecasts and proposals of a party, codes and passwords of a party used to access any thing, information which would be of commercial value to a competitor of a party, or which if known by a competitor of a party, could be used to the commercial disadvantage of the party; but does not include information which is in the public domain. However, if Confidential Information enters the public domain because a party breached the terms of this document, it remains Confidential Information.
Client means the client set out in the Proposal.
Developed Intellectual Property means all Intellectual Property created, conceived or developed in the course of the performance of the Services.
EziDebit means the EziDebit payment platform owned and operated by Ezi Management Pty Ltd (ABN 47 110 689 711, AFSL No. 315388).
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means patents and registered designs, unregistered design rights, copyrights, rights in trade mark and services marks, whether registered or not, goodwill and rights in confidential information and know how, trade secrets and circuit lay out rights and any associated or similar rights (including applications and rights to apply, licenses and other rights of use), tables, compilations of data, diagrams, plans, formulae, computer programs, specifications and proprietary information recorded on any form of media.
KDM means KDM Digital Marketing Pty Ltd ACN 635 407 699.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means KDM and the Client, and Party means either one of them.
Project Commencement Date means date the Services commence as set out in the Proposal.
Proposal means the proposal prepared by KDM for the Client in relation to provision of the Services.
Services means the services provided by KDM to the Client as set out in the Proposal.
Retainer Subscription Fees means the monthly retainer/subscription fees payable by the Client to KDM for the Services as set out in the Proposal.