Service Agreement Updated 2021/07/15
1. About this Agreement
1.1 How a Proposal can be accepted
By providing the Client with a signed copy of this Agreement, Technology Coach is making an offer to enter into an Agreement with the Client. The Client may accept the terms of this Agreement by: signing it, whether physically or electronically, and returning it to Technology Coach; instructing and engaging Technology Coach after receiving this Agreement; or paying the Fees to Technology Coach.
Failure by the Client to accept this Agreement within 28 days of their receipt of this Agreement will result in the immediate withdrawal of the offer.
1.2 How long the Proposal lasts
This Agreement is binding from the Commencement Date and will continue for the Term unless terminated earlier in accordance with clause 11, notwithstanding the provision of the Services anticipated by this Agreement may predate its execution.
1.3 What are Special Conditions?
This Agreement may contain Special Conditions as set out in the Proposal. Special Conditions operate as terms in addition to terms contained in this Agreement. If there is any inconsistency between any Special Condition and any other term contained in this Agreement the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.
2. About Technology Coach’s Services
2.1 How and when will the Services be provided.
Technology Coach will provide the Services, subject to this Agreement. Services will be provided between 10:00am and 5:00pm on Business Days unless otherwise determined by Technology Coach in its sole discretion, acting reasonably.
Technology Coach agrees to establish and maintain clear channels of communication, at all reasonable times, with the Client, provide the Services professionally, efficiently, and to industry standards applicable in Australia, provide the Services within any timeframe(s) set out in the Proposal, or in any event, in a timely manner and promptly inform the Client of any change of circumstances that may materially impact the provision of the Services.
In performing the Services, Technology Coach will comply with relevant laws including State and Federal laws and local government laws and regulations and observe the Client’s reasonable directions in relation to security or the use of any of its facilities or equipment.
2.2 What happens if the Services need to change?
The Client agrees and acknowledges that the Fees are based on the scope of the Services stipulated in the Proposal. If the Client wishes to change the scope or specifications of the Services after the Commencement Date (Variation), Technology Coach will negotiate with the Client in respect to extra Fees (Additional Fees) which result from the Variation. Unless otherwise agreed in writing, the Additional Fees will be charged at the Default Rate.
For the avoidance of doubt any change that is considered by Technology Coach, at its sole and absolute discretion, to be a change to the scope of the Services, will be considered a Variation, any additional work required owing to a change in third party software or systems will also be considered a Variation and Technology Coach is under no obligation to accept a Variation requested by the Client.
2.3 Technology Coach may appoint employees and sub-contractors to help deliver the Services
Technology Coach may appoint employees or agents to provide all or part of the Services without consent or notice to the Client. The appointment of any such employee or agent does not relinquish Technology Coach of its obligations under this Agreement. It is Technology Coach’s responsibility to ensure such entities are bound by the same obligations as Technology Coach.
2.4 Use and storage of Client Materials
The Client acknowledges, agrees and consents to Technology Coach storing, using, copying, transmitting, and backing up Client Materials and granting access, or otherwise disclosing, Client Materials to third parties, as reasonably required for the provision of Services to the Client under this Agreement.
The Client must maintain copies of any Client Materials provided to Technology Coach and must not rely on Technology Coach as a storage service provider. Technology Coach will not be liable or responsible for any failure by the Client to maintain its own copies of Client Materials.
3. Important Client obligations under this Agreement
3.1 The Client must Nominate a representative if Technology Coach requests it
The Client agrees, upon Technology Coach’s request, to nominate a key representative to liaise with Technology Coach, who has the authority to make decisions and give instructions on the Client’s behalf in relation to the Services. The Client agrees this nominated representative will be the sole individual which Technology Coach will be required to liaise with.
3.2 In order to achieve the objectives of the Proposal the Client has the following key responsibilities
The Client will:
(a) provide Technology Coach with assistance in drafting written content;
(b) be responsible for proof-reading and advising Technology Coach of necessary amendments to any written content developed by Technology Coach;
(c) ensure that Technology Coach has access to all information, equipment and personnel, and the Client’s premises, as may be required in order for Technology Coach to provide the Services to the Client in accordance with this Agreement;
(d) promptly, and in all circumstances within 5 Business Days of Technology Coach requesting it, provide Technology Coach with all approval, feedback, directions, instructions, information, personnel, Client Materials and access to the Client’s property, as may be required for Technology Coach to provide the Services;
(e) establish and maintain clear channels of communication at all times with Technology Coach;
(f) immediately inform Technology Coach of any change of circumstances that may materially impact the provision of the Services including any service failure or system threat;
(g) take all reasonable information technology security precautions, and ensure the users of its computer systems take similar precautions;
(h) reimburse Technology Coach the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this Agreement, including travel expenses between Technology Coach premises and the Client’s site, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred by Technology Coach to promptly and efficiently provide the Services; and
(i) promptly provide Technology Coach with directions, instructions or information which are requested by Technology Coach.
4. Performance limitations
4.1 SEO goals, KPI’s and similar objectives are targets not guarantees
The Client acknowledges and agrees that all key performance indicators, targets, goals, or similar objective evaluation criteria (KPIs) agreed between Technology Coach and the Client, while realistic, are aspirational only.
Technology Coach makes no representations, gives no warranties, and makes no guarantees that the Client will achieve, complete, or satisfy any KPIs over any time period, or at all, generate any financial return or other benefit over any time period or not incur a loss over any time period.
The Client acknowledges and agrees that the suitability, accuracy, or efficacy of any Services may be subject to various factors which are outside the reasonable control of Technology Coach, including but not limited to: the terms and policies adopted by third party service providers, such as Google, Facebook, and other social media or communications services utilised by the Client; market conditions and sentiment; macro-economic or geopolitical factors; industrial relations events; and changes in laws and regulations.
The Client acknowledges and agrees that in pursuit of the KPIs, it may be necessary for Technology Coach to use unnatural language in the formation of written content and therefore, Technology Coach is not liable for the use of such unnatural language in any written content.
4.2 Limitations associated with Websites
The Client acknowledges that any Websites that are developed by Technology Coach may run on third party platforms or use open source software. If any of these third party platforms, software or environments make an update or discontinue this may cause the Client’s software to be interrupted or not operate at full functionality. Applying fixes to third party software is considered a Variation.
Where Services are provided in relation to any Website or other asset of the Client’s which were not originally created or developed by Technology Coach, the Client acknowledges and agrees that:
(a) unless otherwise agreed by Technology Coach, Technology Coach has no obligation to identify, detect, or report any defects to the Client, although Technology Coach may choose to do so in its discretion without incurring any liability to the Client; and
(b) Technology Coach accepts no liability for any claims or losses suffered by the Client due to the use, non-use, misuse, or malfunction of any Website or other asset of the Client, even where Technology Coach has been engaged to provide Services in relation to any such Website or other asset.
5. The Client must provide certain resources associated with the Service delivery
The Client acknowledges and agrees that, unless otherwise agreed by Technology Coach and the Client in writing the Services do not include the supply of any hardware, internet connections, data hosting services, cloud computing services, or supporting software or infrastructure which may be required to use or operate any Deliverable (whether over the Internet or otherwise) (Operational Requirements)
Furthermore, the Client will be required, at its own cost and expense, to acquire, arrange and install all Operational Requirements in accordance with Technology Coach’s requirements which may involve the payment of service fees, subscription fees, licence fees and other fees to third party suppliers identified by Technology Coach.
6. Payment of the Fees to Technology Coach
Technology Coach will invoice the Client for the Fees. All Fees are inclusive of GST. If any GST is imposed on a supply under this Agreement, Technology Coach will itemise any applicable GST on a tax invoice and the Client must pay the GST amount with and in addition to the Fees. The Client must pay Technology Coach’s invoice in accordance with the Payment Terms.
If the Client fails to pay Technology Coach the Fees in accordance with this clause 6, Technology Coach will have the right to immediately initiate proceedings against the Client to recover the overdue amount (this right takes precedence over the conditions in clause 12 of this Agreement) and to recover all costs in relation to any action taken against the Client to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
7. Intellectual Property
7.1 Client Materials remain the Client’s
The parties acknowledge that if the Client makes available to Technology Coach any Client Materials, then where the Client owns the Intellectual Property in said materials, the Client retains ownership. The Client grants Technology Coach a non–exclusive, revokable, royalty free and worldwide licence to use the Client Materials for the sole purposes of providing the Services.
The Client warrants that it owns, or is otherwise licensed to use, the Intellectual Property in all Client Materials, and that use of the Client Materials by Technology Coach will not infringe the rights of any third party.
7.2 Technology Coach IP remains with it, however the Client is licenced to use it where necessary
No ownership or other rights in Technology Coach IP are transferred to the Client under this Agreement and Technology Coach retains its right to use Technology Coach IP for any purpose. To the extent that the Client may at any time acquire any right, title or interest in Technology Coach IP, the Client assigns to Technology Coach all such rights, title and interest.
To the extent that any Technology Coach IP is contained within the Deliverables, Technology Coach grants to the Client an irrevocable, non-exclusive, perpetual, assignable, royalty-free and worldwide licence to use the Technology Coach IP where it is necessary to operate any Deliverables.
7.3 If New IP is created as part of the Services it is transferred to the Client upon payment of the Fees
The parties agree all New IP is owned absolutely by the Client and vests in the Client immediately upon payment of the Fees. To the extent that Technology Coach may at any time acquire any right, title or interest in New IP, Technology Coach assigns to the Client all such rights, title and interest in New IP upon payment of the Fees.
The Client grants Technology Coach an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use New IP for the purposes of providing the Services.
7.4 Technology Coach may lawfully use third party IP in the delivery of the Services
Technology Coach may use third party materials as necessary to provide the Services. Use of third party materials may be subject to creative commons or open source licensing terms, or such third party licensing terms. Where Technology Coach has used third party materials in the Deliverables it warrants that the Deliverables will not infringe in any way on any third party’s Intellectual Property.
7.5 Advertising Technology Coach’s work
The Client grants Technology Coach an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use images and screenshots of the Deliverables for the purpose of Technology Coach displaying its skills by reference to its previous work in a marketing and advertising context.
8. Each party agrees to keep Confidential Information, confidential
A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
A party will not be in breach of this clause 8 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
Notwithstanding any other provision of this clause 8, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
9. Limitation of liability
9.1 Implied conditions are excluded
The Client agrees that all implied guarantees, conditions and warranties are excluded from this Agreement, except any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (Non Excludable Condition).
9.2 Limitation of liability
Subject to the Non-excludable Conditions, Technology Coach excludes all liability for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client, in connection with this Agreement, whether that liability arises under contract, tort (including negligence) or under statute, including by:
(a) misuse or user error except to the extent the misuse or error is caused by Technology Coach;
(b) the delays, action, operation, inaction or failure of any third party, third party service, software or equipment;
(c) any delays by the Client in providing Client Materials; or
(d) any Force Majeure Event.
To the maximum extent permitted by law, Technology Coach’s liability for a breach is limited, at Technology Coach’s option, to in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods and in the case of services: the re-supply of the services; or the payment of the cost of such re-supply of the services.
Technology Coach will not, under any circumstances, be liable to the Client for any Consequential Loss, except where such loss cannot be excluded in respect of a Non Excludable Condition.
Technology Coach will use reasonable efforts in providing the Services, however, subject to the Non Excludable Conditions and other than as set out in this Agreement, Technology Coach does not warrant or guarantee the Services are uninterrupted or error free or the Services for any fitness of purpose, performance, or compatibility other than as set out in this Agreement.
10. Indemnity against third party services, Consequential Losses and breach of contract
The Client agrees to indemnify Technology Coach and its directors, employees, contractors, agents and representatives against any costs, expenses, losses, including Consequential Loss, damages and liability suffered or incurred arising directly or indirectly from the Client’s use of the Services, the Client’s breach of this Agreement and any negligent or unlawful act or omission by the Client in connection with the Services and a contract in force between Technology Coach and a third party in connection with the Services.
11. Ending this Agreement
11.1 Termination for breach of this Agreement
Either party may end this Agreement immediately by written notice if the other party commits any material breach of this Agreement and which, in the case of a breach capable of being remedied, is not remedied within 10 Business Days of a written request to remedy it, commits any material breach of any terms of this Agreement that is not capable of remedy or is guilty of dishonesty, serious misconduct or serious neglect of duty.
11.2 Termination of this Agreement where no breach has occurred
Either party may end this Agreement at any time for any reason by giving the other party 14 days written notice.
11.3 What are the consequences of terminating this Agreement?
If this Agreement ends for any reason, then in addition to any other rights Technology Coach may have:
(a) Technology Coach may issue an invoice for Fees relating to Services provided up to the point of termination but not yet invoiced for; and
(b) the Client must pay all of Technology Coach’s outstanding invoices whether or not due, including any invoice issued under clause 11.3(a).
If this Agreement ends for any reason and Technology Coach was not in default of this Agreement, then:
(c) Technology Coach is entitled to Fees for the balance of the contract period (if any) of this Agreement (calculated using the Fees applicable as at the date of termination);
(d) Technology Coach will return to the Client any login details to any third party services held on behalf of the Client; and
(e) any amounts owing to Technology Coach under this clause 11.3, excluding any costs which can be reasonably mitigated, become immediately due and payable.
The parties agree that the amounts owing under this clause 11.3 do not constitute a penalty but represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of Technology Coach’s sunk costs and ongoing commitments.
If Technology Coach terminates this Agreement under clause 11.2 then it will refund to the Client any unused portion of Fees which were prepaid for this Agreement, less any other amounts owed to Technology Coach.
12. How we resolve disputes if they arise
If a dispute arises between the parties in relation to this Agreement, either party may give the other party a written notice that they intend to arrange mediation. The parties must refer the dispute to an independent mediator within 21 days of the written notice. If the parties cannot agree on a suitable mediator, either party may contact the Resolution Institute in Australia and request that they provide a mediator. The costs of the mediation must be paid by the parties in equal shares.
No party may commence court proceedings unless the dispute remains unresolved for 14 days from the date of the mediation anticipated in clause 12.
The Dispute Resolution procedure set out in this clause 12 will not apply in any instance where either party seeks to enforce a debt in connection with this Agreement.
Assignment – Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without the other parties consent.
Entire agreement – This Agreement sets out all the parties’ rights and obligations relating to the subject matter of this Agreement, and it supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
Force Majeure Event – If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties’ obligations are suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may end this Agreement if the Force Majeure continues for more than 21 days. Nothing in this clause affects the Client’s obligation to pay the Fees.
Governing law – This Agreement is governed by and is to be construed in accordance with the laws applicable in South Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of South Australia.
Severability – If any part of this Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of this Agreement will not apply but the other parts of this Agreement will not be affected.
Survival – Clauses 7, 8, 9, 10, 11.3, 12 and any other clause in this Agreement which is expressed to survive or by its nature survives, will survive termination or expiry of this Agreement for any reason.
Variations – This Agreement may only be varied by written agreement and signed by the parties.
14. Definitions and interpretation
14.1 Definitions give context to capitalised terms.
Additional Fees is as defined in clause 2.2.
Agreement means this legally binding agreement arising between Technology Coach and the Client.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Kangaroo Island, South Australia.
Client means the party identified as the “Client” in the details section at the beginning of this Agreement.
Client Material means any material including documents, information, images, data or Intellectual Property provided by the Client to Technology Coach in connection with this Agreement.
Commencement Date takes its meaning from the definition in the Proposal under “Commencement Date”.
Confidential Information means information that is by its nature confidential including but not limited to: confidential information relating to the Client or the Client’s clientele; information relating to the personnel, policies, practices, clientele or business strategies of Technology Coach; and information relating to the terms of this Agreement, but does not include: information already known to the receiving party at the time of disclosure by the other party; or information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Default Rate means $100 per hour plus GST.
Deliverables means any output produced by Technology Coach as anticipated during the provision of the Services, including any Websites and written content.
Fees means any money payable by the Client to Technology Coach for the Services.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
New IP means any Intellectual Property generated under this Agreement but excluding the Client Materials and Technology Coach IP.
Payment Terms means the payment arrangement for the Services as set out in the Proposal under “Payment Terms”.
Proposal means the written agreement between the parties setting out the details and price payable for the Services, to which these terms apply.
Services means the Services provided by Technology Coach as described in the Proposal, being the Marketing Services and/or Website Development Services.
Special Conditions are terms as set out in the Proposal under “Special Conditions”.
Term means the period of time specified in the Proposal under “Term”, or where not specified, for the period of time until the Services are completed and the Deliverables delivered.
Variation has the meaning given in clause 2.2.
Website means any website, content management system and associated third party plug-ins and includes the content of the website.
Technology Coach IP means any Intellectual Property which are independently created by Technology Coach and which are in existence before the date of this Agreement or come into existence after the commencement of this Agreement but are not created exclusively for the Client.
In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement.