Terms & conditions of service.
Definitions and Interpretation
By working with The Chain Group ATF The Chain Group Unit Trust you agree to the following terms and conditions of service.
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by us.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Confidential Information includes information or documentation which:
is disclosed to you in connection with this Document (whether before or after the Start Date);
is prepared or produced under or in connection with this Document (whether before or after the Start Date); or
our business, assets or affairs; or
the subject matter of, the terms of and/or any transactions contemplated by this Document,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to you or received, acquired, overheard or learnt by you in any way whatsoever.
Corporations Act means the Corporations Act 2001 (Cth).
Dispute has the meaning given in clause 11(a).
Dispute Notice has the meaning given in clause 11(b).
Document has the meaning given in the Proposal.
Fee Variation has the meaning given in clause 3.2(b)(1)(A)(ii).
Insolvency Event means the occurrence of any one or more of the following events in relation to you:
you are or state that you are insolvent or you are deemed or presumed to be insolvent under any applicable laws;
an application or order is made for your winding up, bankruptcy or dissolution or a resolution is passed or any steps are taken to pass a resolution for your winding up or dissolution;
an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of you or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
a controller is appointed in respect of any of your property;
you are deregistered under the Corporations Act or other legislation or notice of your proposed de-registration is given to you;
a distress, attachment or execution is levied or becomes enforceable against you or any of your property;
you enter into or take action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of your creditors or members or a moratorium involving any of them;
a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of you or your property;
a petition for the making of a sequestration order against your estate is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or you present a petition against yourself; or
anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of you.
Fee means the Price and the Additional Price, collectively.
Intellectual Property means any:
registered or unregistered design, patent or trade mark rights;
trade, business, company or domain names;
know-how, inventions, processes, trade secrets or Confidential Information;
circuit layouts, databases or source codes; or
similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
On-boarding Document has the meaning given to it in clause 4.3(a).
Party means a party to this Document, and Parties means all of them.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Proposal means the proposal to which these terms and conditions are attached.
Start Date means the date set out in the Proposal. Where there are multiple dates, Start Date means the earliest of these dates.
Trustee has the meaning given in clause 10(a).
Use has the meaning given in clause 7(b).
Guarantee after the first six months of the retainer Term, in each month of the Term, we guarantee that any advertising purchased by you as part of the performance of the Services retainer will result in a return on investment of 3:1 (ROAS Guarantee). By way of example only, each dollar spent on advertising will result in you receiving three dollars in revenue. For clarity, this does not include the Price or Additional Price.
In this Document, unless the context otherwise requires:
the singular includes the plural and vice versa;
headings are for convenience only and do not affect interpretation;
a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Document;
if any act which must be done under this Document is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
includes and similar words mean includes without limitation;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party to an instrument includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
a reference to this Document or any other instrument includes the instrument, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally;
a reference to time is to local time in Victoria, Australia; and
a reference to $ or dollars refers to the currency of Australia from time to time.
This Document takes effect on and from the Start Date. No cancellations will be accepted by us after the Start Date, other than in accordance with clause 12.
We will proceed with the provision of the Services within a reasonable time after the later of:
the Start Date;
receipt of payment of the relevant part of the Fee (if applicable);
receipt of a fully completed On-boarding Document; and
the satisfaction of any other conditions precedent contemplated by this Document.
In consideration of your payment of the Fee, we will provide the Services in accordance with this Document, whether ourselves or by using our Personnel including contractors.
If this Document expresses a time within which the Services are to be provided, you acknowledge and agree that any such time is an estimate only and creates no obligation on us to provide the Services by that time.
Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any works, services, goods, materials or items which:
do not form part of the Services, as expressed in the Proposal; or
have not been provided by us.
This clause 3.1(c) will survive the termination or expiry of this Document.
Subject to clause 3.2(b), you may request a variation or change to the Services, by providing written notice to us, with details of the variation or change.
Despite anything to the contrary:
we will not be obliged to vary or change the Services, including the timing for the provision of the Services, unless:
we accept the variation or change; and
the effect of the variation or change, including to the Fee (Fee Variation),
in writing to you in the form of an updated Proposal; and
the Fee has been adjusted to reflect the Fee Variation; and
without limiting and in addition to clause 3.2(b)(1), where:
the Services are varied or changed, or the costs of providing the Services increase; and
the cause of that variation, change or increase relates to, or is connected with, an event or circumstance beyond our reasonable control,
you must pay us the additional costs and expenses we suffer or incur as a debt due and immediately payable to us.
In order to provide some Services, you will be required to provide us with your account credentials to third party platforms such as Facebook (Credentials).
You acknowledge that we are authorised to use the Credentials to access the relevant accounts and perform the Services.
Your Credentials are stored securely in our systems and can only be accessed by the necessary Personnel or third party providers that assist with performing the Services.
Upon termination of this Document, we recommend you change your Credentials in order to ensure that your security is not compromised.
You must comply with:
our reasonable requests or requirements; and
You must obtain, and provide to us, any access, consents, approvals, licences and permissions necessary to enable us to provide the Services.
You acknowledge that the Services and Deliverables to be provided by us under this Document may be performed by any members of our Personnel. In the event that you would like specific Personnel to perform the Services or provide consultations, this will be charge at the rates set out in this Document as an Additional Price.
You must pay us:
all disbursements, including travel and accommodation costs and third party costs, incurred by us for the purpose of the provision of the Services that has received your prior approval; and
any other amount payable to us under this Document,
in accordance with the Payment Terms.
If any payment has not been made in accordance with the Payment Terms, where the payment is more than 30 days overdue, we may (at our absolute discretion):
immediately cease providing the Services, and recover as a debt due and immediately payable from you, our Additional Costs of doing so;
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
report you to any independent credit data agencies.
You must provide payment details to, and pay directly, any third parties (such as Facebook and Google), for the placement of advertising on the relevant third party platforms that you wish to obtain.
Prior to or around the Start Date of this Document, we will provide you with a document to complete which requests information from you necessary to perform the Services and complete the Deliverables (On-boarding Document).
You must provide all assistance (including the On-boarding Document and other relevant information or documentation) which we request to enable us to comply with our obligations under this Document or at law.
Subject to clause 4.4(b), you must (and must ensure that your Personnel do):
keep confidential; and
not use or permit any unauthorised use of,
all Confidential Information.
Clause 4.4(a) does not apply where:
the disclosure is required by law; or
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Document and provided that you ensure the adviser complies with the terms of clause 4.4(a).
To the maximum extent permitted by law, you indemnify, and must continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 4.4.
You warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Start Date.
This clause 4 will survive the termination or expiry of this Document.
The Fee may be increased on 1 January and 1 July each year, and the Parties acknowledge and agree that such increase shall be no less than the then current Fee (as applicable) plus 5%.
Any change in the Fee will take effect from the next billing cycle following such change.
The standard method of payment of all fees under this Document is by direct debit from a nominated savings or credit card account.
A transaction fee applies if paying by credit card, as updated from time to time. No transaction fee applies for payments from savings accounts.
Fees are debited on the Start Date and weekly thereafter.
Fees are debited on an ongoing basis until notified in writing of discontinuation.
PayAdvantage Direct Debit Request Service Agreement forms part of this Document and will be provided to you.
As between the Parties, all Intellectual Property developed, adapted, modified or created by or on behalf of us or our Personnel (including in connection with this Document or the provision of the Services), whether before or after the Start Date, will at all times vest, or remain vested, in us, except where we have agreed to assign any Deliverables to you in accordance with this clause.
You must, upon the Start Date, grant us a perpetual, royalty-free, world-wide, unconditional, transferable and irrevocable licence to use, develop, adapt and modify (Use) all Intellectual Property owned by, or licensed to, you. You must ensure that any such Use does not infringe any Intellectual Property rights of any person.
If you or any of your Personnel has any Moral Rights in any material provided, used or prepared in connection with this Document, you must (and must ensure that your Personnel) consent to the use or infringement of those Moral Rights.
To the maximum extent permitted by law, you indemnify, and must continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 5.
You grant us a perpetual, royalty-free, world-wide, unconditional and irrevocable licence to use the Deliverables and your logo for portfolio purposes and for display on our website.
Prior to termination or expiry of this Document, you must provide us access to your Facebook account to remove all advertising streams, advertisements and all other material created by us. You will not remove our access to your Facebook account prior to us removing our Intellectual Property from your Facebook account.
You acknowledge and agree that the Intellectual Property in relation to Facebook advertising remains vested in us at all times, and you will not use this Intellectual Property upon termination or expiry of this Document.
Photography, Videography, Graphic Design and Copywriting
Where the Fee is a lump sum payment, we will assign ownership of the Deliverables to you, upon full payment of the Fee and all fees and costs payable.
Where the Fee is payable on a monthly basis, we will assign ownership of the Deliverables to you at the termination of this Document, upon full payment of the Fee and all fees and costs payable.
This clause 7 will survive the termination or expiry of this Document.
If we provide you with draft Deliverables, you must accept these Deliverables or tell us if you require any modifications, acting reasonably.
We will not proceed to finalise the Deliverables until you have accepted the Deliverables.
We are not responsible for any delays caused by your failure to accept the draft Deliverables.
Despite anything to the contrary, to the maximum extent permitted by law:
our maximum aggregate Liability arising from or in connection with this Document (including the Services and/or the subject matter of this Document) will be limited to, and must not exceed, the portion of the Fee paid by you to us for the Services the subject of the relevant claim; and
we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:
loss of, or damage to, any property or any injury to, or death of, any person;
failure or delay in providing the Services; or
breach of this Document or any law,
where caused or contributed to by any:
event or circumstance beyond our reasonable control; or
act or omission of you or your Personnel,
and, in any event, any defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
Instagram Growth Service
Where the Services include the Instagram Growth Service as outlined in the Proposal, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with:
deactivation or deletion of your Instagram account; or
any consequence of such activities breaching Instagram’s terms and conditions.
You agree that, other than the ROI Guarantee set out in the Proposal, we do not warrant that our Services or Deliverables will result in an increase in your business revenue.
You agree that, to the maximum extent permitted by law, this Document excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Document.
This clause 9 will survive the termination or expiry of this Document.
Each Party described in this Document as a trustee (Trustee) enters into this Document only in its capacity as a trustee of the trust of which it is described as the Trustee (Trust).
Subject to clause 10(c), and despite any other provision of this Document, a Liability arising under or in connection with this Document is limited and can be enforced against a Trustee only to the extent to which the Trustee is indemnified out of the assets of the Trust.
The limitation set out in clause 10(b) does not apply where the Trustee’s right to indemnification is reduced or lost as a result of fraud, breach of trust or breach of duty by the Trustee.
This clause 10 will survive the termination or expiry of this Document.
A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Document (Dispute) without first complying with this clause 11 unless:
that Party is seeking urgent interlocutory relief; or
the Dispute relates to compliance with this clause.
In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party setting out the details of the Dispute and proposing a resolution (Dispute Notice).
Within 5 Business Days after receiving the Dispute Notice, the Parties must, by their senior executives or senior managers (who have the authority to reach a resolution on behalf of the Party), meet at least once to attempt to:
resolve the Dispute; or
agree on the method of resolving the Dispute by other means,
in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged.
If the Parties do not:
resolve the Dispute; or
(if the Dispute is not resolved) agree on an alternate method to resolve the Dispute,
within 15 Business Days after receipt of the Dispute Notice, the Dispute may be referred by either Party (by notice in writing to the other Party) to litigation.
Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Document.
This clause 11 will survive the termination or expiry of this Document.
This Document will terminate immediately upon written notice by:
either Party, if mutually agreed in writing between the Parties;
us, if you are in breach of this Document and that breach has not been remedied within five Business Days of being notified by us;
us, if you are subject to an Insolvency Event; or
you, if we are in breach of a material term of this Document and that breach has not been remedied or overcome within 15 Business Days of being notified by you.
If a Notice Period is outlined in the Proposal, this Document may be terminated by either Party in accordance with such Notice Period.
In the event that you terminate this Document under clause 12(b) within the Minimum Term, you must pay to us the Early Termination Costs.
You acknowledge and agree that these Early Termination Costs are a genuine pre-estimate of loss caused to us as a consequence of you terminating this Document within the Minimum Term.
Termination of this Document will not affect any rights or liabilities which a Party has accrued under it.
Upon termination of this Document, you will (and will ensure that your Personnel):
where this Document is terminated under clauses 12(a)(1) to 12(a)(3) (inclusive), pay:
the Fee in full; and
all Additional Costs resulting from the termination of this Document,
to us as a debt due and immediately payable;
where this Document is terminated under clause 12(a)(4), immediately pay the Fee and all other amounts due and payable to us, as if an invoice had been issued by us to you under clause 4.2 on the date of termination;
not disparage or otherwise make any unfavourable statements or comments regarding us or our Personnel, either directly or by implication, verbally or in writing;
immediately return to us all property, including Confidential Information and Intellectual Property belonging to us or our Personnel, in your or your Personnel’s possession; and
not use any Intellectual Property belonging to us or our Personnel.
This clause 12(f) will survive the termination or expiry of this Document.
You represent and warrant to us:
you have full legal capacity and power to enter into this Document, to perform your obligations under this Document, to carry out the transactions contemplated by this Document, to own your property and assets and to carry on your business;
you are not subject to an Insolvency Event;
this Document constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
the execution and performance by you of this Document and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to you or any instrument binding on you.
A notice or other communication given under this Document must be:
in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
A Party’s notice details are set out in the Proposal. A Party may change its notice details by written notice to the other Parties.
A notice or communication is taken as having been given:
when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Document does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
Powers, rights and remedies
Except as provided in this Document or permitted by law, the powers, rights and remedies of a Party under this Document are cumulative and in addition to any other powers, rights and remedies the Party may have.
Consents or approvals
Except as provided in this Document, a Party may give, attach conditions to or withhold any consent or approval under this Document at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Document without the prior written consent of the other Party. Any purported dealing in breach of this clause 13.6 is of no force or effect.
Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Document and their obligations under it.
Costs and expenses
Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this Document and any instrument relating to it.
Relationship of Parties
This Document is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this Document gives a Party authority to bind the other Party in any way.
13.10.Independent legal advice
Each Party acknowledges and agrees that it has had an opportunity to read this Document, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
If a provision of this Document is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Document without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Document.
This Document contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
This Document may only be amended by written instrument executed by all Parties.
This Document may be executed in any number of counterparts that together will form one instrument.
13.15.Governing law and jurisdiction
This Document is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.