Hats Off Copywriting Pty Ltd – Terms & Conditions of Trade
(the boring but important stuff)
1.1 “Contractor” means Hats Off Copywriting Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hats Off Copywriting Pty Ltd,.
1.2 “Client” means the person/s ordering the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Services” means all Services (including consultation, content creation and/or social media managment services) supplied by the Contractor to the Client at the Client’s request.
1.4 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between the Contractor and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Services.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.
2.3 Any materials (photos and/or other resources) Client provides during this contract shall remain the property of the Client, and will not be used by the Contractor for any other reason than the fulfilment of the Services agreed on.
3. Electronic Transactions Act 2003
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership (business sale or change of marketing strategy etc.) of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Contractor’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Services performed; or
(b) the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days. Unless otherwise stated, quotations shall not have an allowance for:
(i) unforeseen scenarios such as business sale or change in marketing strategy which causes the need for social media or content services to cease.
5.2 The Contractor reserves the right to change the Price:
(a) if a variation to the Services which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled is requested; or
(c) in the event of increases to the Contractor in the cost of services (such as stock photos or Instagram automation programs) which are beyond the Contractor’s control.
5.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 The Contractor reserves the right to require a deposit prior to Services being undertaken to the maximum of 50% of total payment, and will inform the Client of this within the Quote/Proposal.
5.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
(a) on completion of the Services; or
(b) before the delivery of the Services; or
(c) by way of progress payments in accordance with the Contractor’s specified progress payment schedule.
(d) Generally the payment plan is based on:
(i) a deposit;
(ii) a payment to cover all the materials costs to be paid on commencement of the Services;
(iii) balance of outstanding amount due on completion.
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor.
5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the performance of the Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of the Works
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Services start as soon as it is reasonably possible and/or on the date as requested by the Client.
6.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:
(a) Make the necessary resources/documents available or
(b) notify the Contractor that they need the Services by a set date.
6.3 The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Contractor for delivery of the Services is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Services as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
6.5 Where the Client requires the Services to be rescheduled or cancelled (as per clause 20.3), the Client is required to provide the Contractor with at least forty-eight (48) hours’ notice prior to the scheduled commencement time, or in a time frame equal to the Quote agreement, aka; one months notice when quoted for monthly social media management Services.
7. Client’s Responsibilities
7.1 The Client acknowledges that;
(a) it is their responsibility to ensure that all Materials (photos and any additional resources) which the Contractor is required to fufill the terms of the agreement are provided by the date requested by the Contractor in order for the Contractor to provide the Services within the requested time frame.
(b) the Contractor is not a marketing strategy provider, and has been Contracted to implement the Clients existing strategy only, and cannot be held responsible for any failing (loss of income, or little traction) by the implementation of a poor or flawed stratagy chosen by the Client.
8. Compliance with Laws
8.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
8.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
9.1 The Contractor and the Client agree that ownership of the Materials (aka; written content) shall not pass until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all of its other obligations to the Contractor.
9.2 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor;
(e) immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
10.4 The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 15.3 to 15.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 15) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of the Contractor agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
11.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect all Materials on delivery (or the Services on completion) and must within seven (7) days of delivery notify the Contractor in writing of any evident mistakes or failure to comply with the description or quote. The Client must notify any other alleged issue with the Materials/Services as soon as reasonably possible after any such issue becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Services provided.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Services. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Materials.
12.7 If the Contractor is required to rectify or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to the Client which were not an issue.
12.8 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not create the Materials;
(c) otherwise negated absolutely.
12.9 Subject to this clause 17, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 17.1; and
(b) the Contractor has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
12.10 Notwithstanding clauses 17.1 to 17.9 but subject to the CCA, the Contractor shall not be liable for any issue or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly supply any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any issue became apparent or should have become apparent to a reasonably prudent user;
(d) interference with the Services by the Client or any third party without the Contractor’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the Contractor;
(f) any accident or misplacement by the Client of the supplied Materials/Services.
12.11 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where the Contractor has designed, drawn, written, or created any products for the Client, then the copyright in all such designs, writings, documents, and products shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, products and documents be used without the express written approval of the Contractor.
13.2 The Client warrants that all requests, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
13.3 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, content, or products which the Contractor has created for the Client.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
14.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Contractor;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Services to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
15.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Services already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
16.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
16.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
16.5 The Contractor may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that the Contractor is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.7 The Client shall have the right to request (by e-mail) from the Contractor:
(a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
16.8 The Contractor will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. Dispute Resolution
17.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
18. Service of Notices
18.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
18.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
19.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Perth Courts in that state.
19.3 Subject to clause 17 the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
19.4 Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). The Contractor may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
19.5 The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Services to the Client.
19.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.