Standard Terms of Trade with Tussle Digital
By paying invoices and transacting with Tussle Digital, you agree with the below general trading terms with Tussle Digital (Support Tech Pty Ltd.)
1. DEFINITIONS
Client Website means the specific website page(s) referred to in the Specification.
The contractor is referred to as Tussle Digital in this document.
Confidential Informationmeans the confidential information of a party and includes:
- Information relating to the personnel, policies, pricing or business strategies of a party;
- Intellectual Property Rights of a party;
- Third Party Software (as defined in clause 6(e));
- any information marked as confidential;
- any information reasonably considered to be confidential.
The Confidential Information does not include information which:
- is generally available in the public domain other than as a result of a breach of clause 6 by a party; or
- was known by the other party prior to receipt of such information under or in connection with this Agreement.
GST means Goods and Service Tax imposed in Australia by legislation.
Guarantor means the person(s) named as such in Schedule 2, who agrees to be liable for the debts of the Client on a principal debtor basis.
Fees means the amounts or rates nominated in Schedule 1.
Intellectual Property means copyright, inventions, processes, trademarks, designs, and patents (whether registered, unregistered or applied for), domain names, business names and any right to have confidential information kept confidential in all forms.
Minimum Term means the agreement term defined in clause 4.
Services means Tussle Digital’s services are generally described on Tussle Digital’s website.
2. SERVICES AND DELIVERABLES
- In consideration of the Client paying the Fees, Tussle Digital will provide the Client with the Services, subject to the provisions of this Agreement.
- The Client acknowledges and agrees that if the Client reasonably considers that any document or material provided by Tussle Digital to the Client as part of the provision of the Services is not compliant with this Agreement, the Client must notify Tussle Digital of the same in writing within seven (7) days of the date of receipt of such document or material and Tussle Digital will be given seven (7) days to rectify such non-compliance (if any). If the Client does not provide Tussle Digital with such notice within the said period, the Client will be deemed to have accepted such document or material as compliant with this Agreement. Should the Client require any further modifications of any document or material accepted under this clause, such further modifications will be considered a new project and will be made by Tussle Digital at an additional charge to the Client.
- The Client acknowledges and agrees that the Services may incorporate certain third-party software and that the Client’s use of and obligations with respect thereto are subject to any license terms that might accompany such third-party software.
3. FEES
- In consideration of the provision of the Services in accordance with this Agreement, the Client will pay Tussle Digital the Fees.
- In addition to the Fees, Tussle Digital is permitted to charge the Client for:
- any additional services falling outside of the pre-agreed scope of work; and
- all additional out-of-pocket costs and expenses incurred by Tussle Digital in performing the Services, provided that such additional costs and expenses are approved by the Client.
- In addition to the Fees, the Client will be solely responsible for any applicable advertising platforms’ charges (such as Google ads) and will be responsible for paying such charges to such advertising platforms directly.
- The payment terms for the Fees are monthly in advance. Tussle Digital will not provide any refund of Fees or any part thereof if the provision of the Services is delayed due to the Client’s failure to provide Tussle Digital with any required information or access, or due to any other act or omission of the Client.
- The Fees are exclusive of GST and Tussle Digital will be entitled to add to its invoices to the Client the amount of any applicable GST.
- Tussle Digital will provide the Client with a monthly tax invoice in accordance with the GST legislation in relation to remuneration payable.
- Payment of any tax invoiced amount must be made by the Client to Tussle Digital within seven (7) days following receipt of the invoice.
- If the Client does not make a payment by the date stated in an invoice or as otherwise provided in the Agreement, Tussle Digital is entitled, without prejudice to any of its other accrued or contingent rights:
- to charge interest on the outstanding amount(s) at the rate of 7% per year, accruing daily;
- to charge the client an administration fee of $100 per calendar month in relation to each outstanding invoice in order to cover the additional time required to be taken by Tussle Digital’s personnel in order to receive the payment;
- to terminate this agreement;
- to rely on a personal guarantee and indemnity provided;
- immediately suspend the performance of any further Services (or any part of the Services) without any liability or any obligations to make any refunds
- The Client acknowledges and agrees that in addition to the Fees and any other amounts payable to Tussle Digital under this Agreement, Tussle Digital reserves the right to retain all and any commissions, rebates, allowances, credits, discounts or any other benefits allowed to Tussle Digital by any media or platform vendor or other third-party supplier (“Media Vendor”) as a result of the provision of the Service, including, without limitation, due to any increase in Tussle Digital’s volume or work with such Media Vendors or due to any prompt payment of media accounts.
- In the event of a dispute, Tussle Digital reserves the right to recover costs incurred including but not limited to Labour Costs at our standard rate of $150 per hour exclusive of GST.
4. DURATION
- Subject to subsection (b) and (c), the initial term of this Agreement and the initial terms applicable to different streams of Services are set out in item 4 of Schedule 1 (“Minimum Term”). At the expiry of the Minimum Term or any then-current term, this Agreement and the term of a Service stream will automatically renew for a subsequent month-to-month term, unless one of the parties provides the other party, at least thirty (30) days before the expiry of the then-current term, with a written notice of its intention not to renew the Agreement or Service stream for a subsequent term.
- For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, this agreement will commence on the Commencement Date.
5. CLIENT’S OBLIGATIONS
- During the performance of the Services the Client at its own cost will and will ensure that the Client’s staff and agents will:
- co-operate with Tussle Digital as Tussle Digital reasonably requires;
- provide the information and documentation that Tussle Digital reasonably requires.
6. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
Confidentiality
- A party, the recipient of Confidential Information must:
- treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information unless it has first obtained the written consent of the disclosing party to do so; and
- prevent third parties from gaining access to the Confidential Information.
- At the termination of this Agreement, or when directed by the disclosing party, the recipient must:
- Return to the disclosing party all Confidential Information, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the recipient makes; and
- if requested by the disclosing party in writing, erase and destroy any copies of any Confidential Information of the disclosing party in the recipient’s possession or control; and
- if, in the case of a software license provided by Tussle Digital to the Client, requested by Tussle Digital in writing, the Client must immediately erase and destroy any copies of any such software in the Client’s possession or control or that may have been loaded onto a computer possessed or controlled by the Client.
- Each party acknowledges that damages may be an inadequate remedy for a breach of this clause 6 and that the affected party may obtain injunctive relief against the other party for any breach of this clause 6.
Intellectual Property
- All pre-existing Intellectual Property Rights are owned by either party as of the date of this Agreement or are developed by that party independently from this Agreement (“Pre-Existing IP”) and will at all times remain owned by that party exclusively.
- All Intellectual Property Rights in the outcome of the Services (“Created IP”) will immediately vest in Tussle Digital upon creation unless otherwise provided for in Schedule 1. Tussle Digital will grant to the Client, subject to the Client paying Tussle Digital for the Services in accordance with this Agreement, a non-exclusive, perpetual, non-transferable license to use the Created IP to the extent required for the Client to benefit from the outcome of the Services as provided under this Agreement.
- All Intellectual Property provided by Tussle Digital to the Client, its employees or agents, is for the Client’s exclusive use.
- The Client shall make no commercial use of Tussle Digital’s Intellectual Property without the prior written consent of Tussle Digital.
- Notwithstanding anything to the contrary in this Agreement or Schedule 1, the Client acknowledges and agrees that the Services may incorporate certain third-party software (“Third Party Software”) and that the Client’s licence of, use of and obligations with respect to the Third Party Software are subject to third party license terms applicable to Third Party Software. At the expiry or termination of this Agreement, the Client’s license (if any) to use the Third Party Software will immediately cease and the Client must comply with clause 6(b).
- The Client indemnifies Tussle Digital fully against all liabilities, costs and expenses that Tussle Digital may incur as a result of any breach of this clause 6 by the Client.
- The Client agrees that Tussle Digital may use the Client’s name and logo for the purpose of Tussle Digital’s marketing and publicity.
Post Agreement Obligations
The clause 6 will survive termination or expiry of this Agreement.
7. PRIVACY
- The Client and the Guarantor(s) agree for Tussle Digital to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor(s) in relation to credit provided by Tussle Digital.
- The Client and the Guarantor(s) agree that Tussle Digital may exchange information about the Client and Guarantor(s) with credit providers for the following purposes:
- To assess the Client’s and/or Guarantor’s creditworthiness;
- To notify other credit providers of a default by the Client and/or Guarantor(s); and
- To exchange information with other credit providers as to the status of this credit account, where the Client and/or Guarantor(s) are in default with other credit providers.
- The Client and the Guarantor(s) consent to Tussle Digital being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- The Client and the Guarantor(s) agree that any personal information provided by the Client and/or guarantor(s) may be used and retained by Tussle Digital for the following purposes and for other purposes as shall be agreed between the Client or Guarantor(s) and Tussle Digital or required by law from time to time:
- provision and marketing of Services; of Services and/or Products by Tussle Digital, its agents or distributors in relation to the Services;
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of the Services;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
- enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
8. WARRANTIES, LIABILITY AND INDEMNITIES
- Tussle Digital warrants that it will use reasonable care and skill in performing the Services.
- Tussle Digital provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in this Agreement or Schedule 1 or elsewhere.
- Tussle Digital must take out all insurance required by law, including workers’ compensation and public liability insurance.
- The Client must indemnify and hold harmless Tussle Digital from and against all Claims and losses arising from loss, damage, liability, injury to Tussle Digital, its employees and third parties, infringement of third-party intellectual property, or third-party losses by reason of or arising out of any use by the Client of the Services, information supplied to the Client by Tussle Digital, its employees or consultants, or supplied to Tussle Digital by the Client within or without the scope of this Agreement.
- Notwithstanding any other provision of this Agreement, Tussle Digital shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Client for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or consequential loss. Otherwise, Tussle Digital’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Client is limited to the amount paid by the Client to Tussle Digital under this Agreement during the three (3) months period immediately preceding the first event giving rise to a claim. The Client must take reasonable steps to mitigate any loss it suffers or incurs under or in connection with this Agreement.
- Each party 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 and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
9. TERMINATION
- Tussle Digital may terminate the Agreement by notice to the Client (without prejudice to any accrued rights) if the Client:
- fails to pay an invoice when due;
- revokes an established direct debit authorization without providing an alternative;
- fails to follow our recommendations/advice in respect of the operation of the Services;
- run its own advertising campaign(s) in direct competition with the Service being provided by Tussle Digital;
- contravenes any other obligations of the Agreement and fails to promptly remedy that contravention;
- fails to respond to Tussle Digital’s communication in a timely manner (or in any event within 5 Business Days); or
- disparages Tussle Digital (in Tussle Digital’s reasonable opinion) in any way, including on social media, forums, reviews or websites or otherwise fail to act in a professional manner, and fail to resolve that breach to our satisfaction in the period specified in the notice.
- The Client may not terminate this Agreement or a service stream before the expiry of the Minimum Term or the then current term (section 4(a)) without Tussle Digital’s written consent. If the Client seeks to terminate this Agreement or any service stream or if Tussle Digital terminates this Agreement because of the Client’s default before the end of the Minimum Term or the then-current term, the Client must pay Tussle Digital Fees for all Services payable during the remainder of the Minimum Term or the then-current term.
- This Agreement can be terminated in accordance with and subject to terms set out in clause 4(a).
- On termination of this Agreement, the Client must pay Tussle Digital:
- Fees for all Services provided up to the date of termination; and
- Fees for all Services for the remainder of the Minimum Term or then-current term; and
- all other amounts payable in accordance with this Agreement; and
- all amounts and expenditure incurred by Tussle Digital in relation to commitments (third-party contracts) reasonably and necessarily incurred by Tussle Digital for the purposes of providing the Services to the Client.
