Terms and Conditions

TERMS AND CONDITIONS

These are the terms and conditions on which we will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Project. They set out our professional services and what you can expect from us.

1. Engagement

PARTIES

This document sets out the terms and conditions which apply to the specific package listed on the Service Order Form (collectively, the Services) entered into by and between Hero Solutions Pty Ltd (Hero Digital Marketing) ACN 614 123 750 (ABN 556 141 237 50) (trading as COMPANY) and the customer (with details provided on the Services Order Form attached) (referred to herein as You).

You may engage us to carry out a Project for you by:

(a) Signing and returning a Purchase Order to us;

(b) Accepting a Quote in writing; or

(c) Giving us written, emailed or verbal authorisation to commence a Project. Unless we notify you otherwise, we will accept that engagement subject to these terms and conditions. The Project will commence when we accept the engagement.

2. Quotes and Estimates

If we provide, or have provided, you with a Quote for the Project, then that Quote:

(a) Is based on the Specifications, and is subject to change if the parties agree to amend the Specifications;

(b) Does not include GST; and

(c) Is valid for a period of 30 days from the date we issue the Quote.

3. Content and Materials Supplied by You

(a) You must supply to us all content & images you want us to use in the Project, and all other content and materials we reasonably request (Client Content). You must supply all Client Content at or before the commencement of the Project.

(b) You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not:

  • Breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or
  • Compromise the security or operation of our computer systems, through a virus or otherwise.

(d) You indemnify, and agree to keep COMPANY, its directors, officers and employees indemnified, against all Loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.

4. Purchase of Images

(a) The Fees do not include any searches or purchases of photo images, audio or video.

(b) You can purchase images directly, or we can purchase photo images, audio or video on your behalf. We may charge Additional Costs in respect of such purchases. We will attempt to advise you of the expected Additional Costs before purchasing the photo images, audio or video.

5. USE OF INFORMATION

  • We may use the information we hold about you and may exchange information with our agents, representatives, or contractors for the purposes of carrying out our business.
  • In recognition of the pricing provided under this Agreement, You shall (subject to your reasonable right to review and approve):
    • allow us to include a brief description of the services furnished to you in our promotional materials, and
    • allow us to make reference to you in case studies, ROI analyses, white papers and related marketing materials, and
    • serve as a reference for our potential clients, and
    • provide interviews to the news media and provide quotes for press releases, and
    • make presentations at conferences, upon our reasonable request and at our cost.

6. JURISDICTION, WHOLE AGREEMENT & SEVERABILITY OF TERMS

(a)This Agreement is governed by the commercial laws within the jurisdiction of New South Wales.

(b)This Agreement (along with any written correspondence relating to approval of work undertaken or requested in the furtherance of the Services by the COMPANY to You) constitutes the entire agreement made between the parties, superseding any/previous representations by either party.

(c)Should any part of this Agreement be rendered as unenforceable under law, the parties agree that it may be severed without invalidating the rest of the terms herein

7. Sign-off

(a) You will be deemed to have accepted the completed work if we do not receive from you, within [28] days after providing you with a completed artwork draft, either notice in writing of acceptance or requests for further amendments.

8. Archiving / Retrieval

We will endeavour to store or archive all electronic files. However, we provide no guarantee that any stored or archived file scan be retrieved in the future.

9. Minimum Service Period

  • “Minimum Service Period” means the period of time for which You have agreed to received the service under a fixed-length agreement. The minimum service period begins on the service start date and runs for the period of time stated on the application. If there is no minimum service period mentioned there is no minimum service period.
  • For SEO Due to ongoing changes of the Search Engine’s algorithms, the COMPANY cannot provide You with any guarantees
  • The COMPANY has no control over the policies of the Search Engine and therefore cannot control what they accept now or in the future.
  • The COMPANY will require to share Your data with partner companies i.e. Google, Hosting Partners, Amazon etc, as necessary in order to perform the Services

10. Professional Liability

(a)Our liability to you for any Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, whether or not you were aware of the possibility of such Loss to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;

(b)The maximum amount you may claim from us for Loss suffered or incurred by you in connection with this agreement is limited to the aggregate amount of Fees which you have paid us in the last 6 months, less any amounts already paid out or due to be paid out by us to you for any reason; and

(c)We are not liable for any

  • Indirect or consequential loss, or any loss of revenue, loss of profit, loss of business opportunity, or
  • Payment of liquidated sums, penalties or damages under any agreement sustained by you or any other
  • Person arising from or in connection with the Project or this agreement;
  • Loss you suffer or incur by in connection with this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party; or
  • Loss you suffer or incur due to factors outside our reasonable control.

11. Virus

We do not warrant whatsoever that our virus protection services will stop every virus from reaching Your website or application. We make no warranty that the service will be error free or free from interruption of failure, and the COMPANY expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility or performance.

12. Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Quote. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.

(b) The obligation of confidence in paragraph (a) does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.

(c) The Party required to disclose the other Party’s Confidential Information as set out in paragraph (b) must:

  • Provide a reasonable amount of notice to the other Party of the proposed disclosure;
  • Consult with the other Party as to the form of the disclosure; and
  • Take all reasonable steps to maintain such Confidential Information in confidence.

(d) Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

13. Calculation of Fees

(a) If the Fees are not specified (in a Purchase Order, Quote or otherwise) at the commencement of the Project, then we will charge you at the Professional Rates for all work that we carry out for you in the course of the Project.

(b) The Professional Rates may change from time to time. The new Professional Rates will apply from the date that we notify them to you.

(c) Travel time is not included in our quotations as COMPANY’s office is our preferred location as it is appropriately set up for meetings and presentations. If you would prefer meetings at your office or any other location a standard travel fee may apply at our hourly rate.

14. Payment and Invoicing

(a) You must pay the Fees and Additional Costs to us within 7 days after the date on which we issue you an invoice for those Fees and Additional Costs in accordance with this.

15. GST

(a) Unless we expressly state otherwise, the Fees and Additional Costs do not include GST.

(c) If at any time we decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.

(d) we reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.

16. Duration of agreement and its termination

(a) Upon execution by both parties this agreement will take effect: immediately and remain in effect until the purpose of the Project has been achieved, unless it is terminated earlier under this clause 16.

(b) A party may terminate this agreement by notice in writing to the other party if:

  • The other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within [14] days after receiving notice from the other Party to do so;
  • The other party commits a material breach of this agreement that is not capable of remedy (including a breach of clause 11 or clause 12); or
  • The other Party becomes Insolvent.

(c) We may terminate this agreement if:

  • You do not provide any information or materials requested within a reasonable time after being asked to do so; or
  • We consider that mutual confidence and trust no longer exist.

(d) Upon termination of this agreement under paragraph (b) or (c):

  • Our obligation to carry out the Project ceases;
  • Each party’s rights and obligations accrued prior to termination are not affected;
  • The licence granted in clause 11(b) ceases; and
  • Each party must immediately return to the other party (or destroy or delete as the other party directs) all ConfidentialInformation of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record keeping obligations; and
  • Except as provided in this paragraph (d), clauses 3(c), 3(d), 10, 11, 12, 17 and 18 will continue.

17. General

(a) Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.

(b) This agreement does not create a relationship of employment, agency or partnership between the parties.

(c) We may subcontract our obligations under this agreement.

(d) The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.

(e) If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.

(f) We may change this agreement from time to time, by notifying you of the changed terms and conditions. The new terms will apply to any Project that commences after the date that we notify you of the changed terms and conditions. Your engagement of our services after that date signifies your acceptance of the amended agreement.

18. Interpretation

In this agreement:

(a) A reference to “this agreement ” means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);

(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;

(c) The singular includes the plural and the plural includes the singular;

(d) Words of any gender include all genders;

(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;

(f) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;

(g) A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;

(h) A reference to a party to a document includes that party’s successors and permitted assignees;

(i) A promise on the part of 2 or more persons binds them jointly and severally;

(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and

(k) Specifying anything in this agreement after the words “include ” or “for example ” or similar expressions does not limit what else is included.

19. Dictionary

Additional Costs means all additional costs that we are permitted to charge you under this agreement.

Artwork means the artwork and designs we prepare for you in the course of the Project.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA).

COMPANY, we or us means COMPANY (as stated as above)

Claim means a demand, action or proceeding of any nature whether actual or threatened.

Client, you or your means, in relation to any work that we do for you:

(a) The person named as the client in the Purchase Order;

(b) If there is no purchase order, then the person named as the client in the Quote; or

(c) If there is no Quote, then the person for whom we are undertaking the project.

Client Content is defined in clause 3(a)

Confidential Information of a party:

(a) Means any information:

  • Regarding that party’s business or affairs;
  • Regarding that party’s customers, employees, or other people doing business with that party;
  • Which is by its nature confidential;
  • Which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
  • Which the other party knows or ought to know is confidential;

(b) Includes without limitation (unless excluded under paragraph (c)) that party’s Intellectual Property Rights and these terms and conditions; but

(c) Does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).

Consumer has the same meaning as in section 3 of the Australian Consumer Law.

Consumer Goods means “goods of a kind ordinarily acquired for personal, household or domestic use or consumption ” as that expression is used in section 3 of the Australian Consumer Law.

Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law,(including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).

Consumer Services means “services of a kind ordinarily acquired for personal, household or domestic use or consumption ” as that expression is used in section 3 of the Australian Consumer Law.

Fair or Reasonable means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.

Fees means, in respect of a Project:

(a) The fees payable to us for the Project as set out in a Purchase Order or Quote; or

(b) If no fees are specified, fees for all work we do in the course of the Project calculated in accordance with clause 13.GST means a goods or services tax or similar tax levied in Australia.

Insolvent, in relation to a party, means that:

(a) The party has ceased or taken steps to cease to conduct its business in the normal manner;

(b) The party has entered into or resolved to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;

(c) The party is unable to pay its debts when they are due;

(d) A liquidator or provisional liquidator is appointed to the party, or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the party’s assets or undertakings;

(e) An application or order is made or a resolution is passed for the winding up of the party; or

(f) An event similar to one in paragraphs (a) to (e) occurs in respect of the party in any non-Australian jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:

(a) Copyright, patents, trade marks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and

(b) Any application or right to apply for registration of any of the rights referred to in (a).

Loss means

(a) Any liability, cost, expense, loss, personal injury (including illness), death or damage; and

(b) In relation to a Claim, Loss includes amounts payable on the Claim and (whether or not the Claim is successful), legal costs and disbursements on a full indemnity basis.

Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia. Project means, in relation to any work that we do for you:

(a) The project described in a Purchase Order;

(b) If there is no Purchase Order, the project described in a Quote;

(c) If there is no Quote, then the project described in the Specifications; or

(d) If there are no Specifications, then the work that you have asked us to do.

Purchase Order means a document issued (in writing or electronically) by us to you that sets out:

(a) The services that we will provided to you;

(b) The estimated times within which those services will be provided; and

(c) The fees payable to us for those services.

Quote means a quote, estimate or proposal that we provide to you in respect of any work that you have asked us to do.

Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Project.

Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.