HoneyBadger Terms & Conditions AU

PARTIES

This Agreement (the “Agreement”) is entered into between NRS Media, dba HoneyBadger Solutions, Level 13, Suite 1A, 465 Victoria Avenue, Chatswood NSW 2067 Australia (the ”Supplier”) and the invoiced party as appearing on the HoneyBadger invoice (the “Client”).

A. Whereby the Client agrees to accept the HoneyBadger Membership provided by the Supplier as presented in the accompanying General Services Agreement.

B. The services (the “Services”) provided may consist of one, or a combination of the following:

• Facebook ad(s) and creative.
• Facebook campaign creation, management services and associated reporting.
• Website design and hosting.
• Google Ads (formerly known as Google Adwords) and creative.
• Google Ads campaign creation, management services and associated reporting.
• Other digital and social media advertising and website services as may be agreed by the Parties.
  

C. The Services will be provided for the period as stipulated on the Supplier Invoice commencing:

• within 14 days following receipt of first payment for Facebook Ads and Google Ads and within 30 days following receipt of first payment for Websites, subject to the Client’s approval of creative material and provided the Client has supplied all the relevant company logos, any necessary artwork, content, database, etc.
• as agreed by the parties for all other services
• For the purposes of clarity:

1. For Facebook and Google Services provided by the Supplier, should the Client use any material provided by the Supplier, including any Preview version(s) of any videos or still images, or any content whether text or imagery or both created by the Supplier, then the Services would have deemed to have taken place and the Client will not be due any refunds.
2. For Website, once the Website Creative Brief has been taken, and the Supplier has commenced work on the Client’s website, including any Preview version(s) of any websites or any content whether text or imagery or both created by the Supplier, then the Services would have deemed to have taken place and the Client will not be due any refunds. Furthermore, in engaging the Supplier for Website services, the Client further agrees that:

• Once a Preview site has been generated, the Client is entitled to 1 round of pre-live revisions
• Post the 1 round of pre-live revisions, the Client agrees that their new website created by the Supplier will be set to ‘Live’ within 5 working days of the preview being supplied to the Client
• Post ‘go live’ the Client has the option to have Unlimited Inbound text, and image changes as part of the Client’s 12-month contract with the supplier and thus any changes to text or imagery may be requested by the Client to the Supplier and such changes will be made post go-live.
• The Client’s website will be set live on the Client’s requested domain
• Once a website is live, the Client further acknowledges that delivery has taken place and that the full scope of the Client’s work performed by the Supplier has been delivered and the full value of the website cost is owed to the Supplier. This full value will be paid in accordance with the payment terms as stipulated in this Agreement, or as otherwise agreed upon, in writing, between the Client and the Supplier
• 
  

D. The Client understands that the costs in this agreement are split between:

• Monthly advertising spend on Facebook and / or Google Ads which will need to be purchased from Facebook or Google by the Client directly and for which the supplier has no involvement, and
• A monthly service fee paid to the Supplier, as stipulated on the Supplier Invoice, and for the delivery of the Services as stipulated in clause ‘B’ above.
  

E. The Services provided are only provided to the name stipulated as the Client, named on the Supplier Invoice, and are non-transferable.

F. Payment by the Client of the Supplier invoice indicates acceptance of these Terms and Conditions and of this Agreement.

G. The Client understands that the Supplier’s payment terms are monthly in advance, paid by debit or credit card and the Client agrees to such payment arrangement with the Supplier’s financial processor for the duration of the Agreement.

H. The Client agrees to the Terms & Conditions of the General Services Agreement, below.

GENERAL SERVICES AGREEMENT

1. BACKGROUND

a. The Client believes the Supplier has the necessary skills and experience to provide the Services.

b. The Supplier is agreeable to providing such Services to the Client on the terms and conditions set out in this Agreement.

c. In consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, consideration is hereby acknowledged by the Client and the Supplier (“the Parties”) and the Parties agree as follows:

2. SERVICES PROVIDED

a. The Client hereby agrees to engage the Supplier to provide the Client with Services described in Section B above.

b. The Services may include any other tasks which the Parties may agree on. These Services may or may not be at additional costs to the Client and any additions / changes would need to be agreed separately in writing by the Parties.

c. For the purposes of clarity, should the Client use any material provided by the Supplier, including any Preview version(s) of any videos or still images, or any content whether text or imagery or both created by the Supplier, then the Services would have deemed to have taken place and the Client will not be due any refunds.

3. TERMS OF AGREEMENT

a. The term of this agreement (the ‘Term’) will begin on the date of the Supplier Invoice to the Client and will remain in full force and effect for the period stipulated in the Supplier Invoice to the Client. The term of this Agreement may be extended with the written consent of the parties.

b. In the event that either Party wishes to terminate this Agreement prior to the period stipulated on the Supplier Invoice, that party will be required to provide 30 days written notice to the other party, however termination of the Agreement shall not relieve the Client of full payment for the period stipulated in the Supplier Invoice to the Client. Additionally, the Supplier has the right to terminate the Agreement for non-payment of scheduled payments.

4. PERFORMANCE

The parties agree to do everything necessary to ensure that the terms of this Agreement take effect.

5. COMPENSATION

a. For the Services rendered by the Supplier as required by this Agreement, the Client will provide compensation (the ‘Compensation’) to the Supplier as per the Supplier Invoice(s) to the Client.

b. Payments will be paid in monthly installments. All monthly installment payments will be taken in advance by automatic debit or credit card payment.

c. Following the Supplier’s receipt of the first payment, advertising will be live within a 14-day period for Facebook advertising campaigns and / or Google Ads, and within a 30-day period for Website design, subject to the Client’s approval of creative material and provided the client has supplied all the relevant company logos, any necessary artwork, content, database, etc.

d. For the purposes of clarity:

• For Facebook and Google Services provided by the Supplier, should the Client use any material provided by the Supplier, including any Preview version(s) of any videos or still images, or any content whether text or imagery or both created by the Supplier, then the Services would have deemed to have taken place and the Client will not be due any refunds.
• For Website, once the Website Creative Brief has been taken, and the Supplier has commenced work on the Client’s website, including any Preview version(s) of any websites or any content whether text or imagery or both created by the Supplier, then the Services would have deemed to have taken place and the Client will not be due any refunds. Furthermore, in engaging the Supplier for Website services, the Client further agrees that:
• Once a Preview site has been generated, the client is entitled to 1 round of pre-live revisions
• Post the 1 round of pre-live revisions, the Client agrees that their new website created by the Supplier will be set to ‘Live’ within 5 working days of the preview being supplied to the Client
• Post ‘go live’ the Client has the option to have Unlimited Inbound text, and image changes as part of the Client’s 12-month contract with the supplier and thus any changes to text or imagery therefore may be requested by the Client to the Supplier and such changes will be made post go-live.
• The Client’s website will be set live on the Clients requested domain
• Once a website is live, the Client further acknowledges that delivery has taken place and that the full scope of the Clients work performed by the Supplier has been delivered and the full value of the website cost is owed to the Supplier. This full value will be paid in accordance with the payment terms as stipulated in this Agreement, or as otherwise agreed upon, in writing, between the Client and the Supplier
• 
  

6. CONFIDENTIALITY

a. ‘Confidential Information’ refers to any data or information relating to the Client, whether business or personal, which could reasonably be construed to be private or proprietary to the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.

b. The Supplier agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any confidential information which the Supplier has obtained, except as authorised by the Client or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive for a period of two (2) years upon termination of this Agreement.

c. For the avoidance of doubt, information which is trivial or obvious, already in the possession of the Client or the Supplier (as appropriate) without any obligation of confidentiality, or in the public domain other than because of a breach of this Clause, will not be regarded as information required to be kept confidential under this Clause.

d. Further to points 6a through 6c, by engaging the Supplier to perform the ‘Services’, the Client explicitly allows the Supplier to use any of the Client’s Social Media ads created by the Supplier (and available in the public domain) in any of the Supplier’s marketing material, including the Supplier’s Websites and Social Media activities and to refer to these ads for the purposes of examples of the quality of the Supplier’s work.

7. OWNERSHIP OF INTELLECTUAL PROPERTY

a. Subject to the restrictions set out below, upon full payment being made to Supplier, Client will own all right, title and interest in the Products and/or Services produced here under. This means that any and all intellectual property rights related to the Products and Services will be owned by the Client (such intellectual property rights being automatically transferred to the Client upon payment in full being received by Supplier).

b. Client’s ownership and rights to the Products and Services shall be subject to the following limitations:

1. To the extent any Product or Service contains copy, images (including logos or photos), templates or any other content or material from the Supplier’s library (“Supplier Material”), then the Client shall have only a royalty-free, non-exclusive, perpetual, worldwide, sub-licensable and transferable license to use said Supplier Material
2. Ownership of all Supplier Material shall remain at all times with the Supplier. Client shall have the right to use derivatives of any Product or Service that include Supplier Material only in connection with advertising activities related to the Client for whom the Product or Service was originally provided.
3. Client shall have no other rights to create or use (or sub-license or transfer) derivatives that include Supplier Material.

c. In addition to the Supplier Material, the Supplier may from time to time utilise stock photos, video footage and other material pursuant to licenses maintained by Client from various image banks (“Image Bank Material”). To the extent that the Supplier incorporates Image Bank Material into the Products or Services created under this Agreement, then the Client shall have all right to reproduce, create derivative works from, distribute, sub-license or transfer same in accordance with the terms of its Image Bank Material license.

d. Client shall remain the owner of any and all Client Data, logos, pictures, slogans, art, and other materials provided to the Supplier in connection with creating a Product or Service here under or uploaded/added by the Client directly into/at the Product or Service (collectively, “Client Content”).

e. If the Client distributes (or allows for the distribution of) any Content through any third party (i.e. through a social media account such as Facebook), the Client represents and warrants that it has all rights necessary to distribute (or allow for the distribution of) such Content. The Supplier has no obligation to accept, display, review or maintain any Content. Moreover, the Supplier reserves the right to remove and permanently delete any Content, including any Content submitted or modified by any user, without notice and for any reason. Moreover, if the Supplier reasonably believes that any Content distributed through a third party (such as through a social media account such as Facebook) could violate any provision of the Terms of this Agreement, the Supplier may contact the Client to inform the Client of the relevant violation. In addition, all content provided by the Supplier may be reproduced by the Client for advertising and used for editorial purposes only and for no other purpose. In particular, the Client will not allow any third parties to use the material produced by the Supplier to be passed off as work produced by the third parties.

8. DESTRUCTION OF CONFIDENTIAL INFORMATION

a. Upon termination of this Agreement the Supplier will destroy and certify to the Client upon request of the destruction of any property, documentation, records or confidential information which is the property of the Client.

9. INDEMNIFICATION

a. The Supplier warrants that the Services will be delivered by sufficiently skilled and experienced personnel. All other warranties, conditions and representations are hereby excluded to the fullest extent permitted by law. The Supplier liability for breach of a warranty shall be limited to re-performing the affected Services.

b. Client will indemnify and hold harmless the Supplier from and against any direct loss and/or direct damages which the Supplier may incur as a result of a third-party claim arising out of:

1. Supplier’s use of the Client Content as permitted here under, including any claims that the Client Content is libellous or defamatory or infringes the intellectual property rights of any third party, or violates any rights of privacy or publicity,
2. claims based on a Client’s wilful misconduct, negligence or strict liability for a defective product; or
3. claims that any Client Content violates any laws, rules or regulations applicable to the Client’s business operations, products and/or services, provided always that the foregoing indemnity provisions shall be provisioned on the following:
   

– Client has been duly and promptly notified in writing of such claim giving rise to an indemnity obligation (provided, however, that failure to give prompt notice will not relieve the Client of any liability here under, except to the extent that the Client has suffered actual material prejudice by such failure),

– Client shall have been given full authority and information to handle the claim or the defence of any suit, proceeding or settlement (provided that no settlement of the claim shall be made without the written consent of the indemnified party, which consent shall not be unreasonably delayed or withheld); and

– Reasonable cooperation by the indemnified party (at the Client’s expense) in the defence of such claim as may be requested by the Client. Notwithstanding the foregoing, the indemnified party shall have the right to participate in the defence of such claims with counsel of its choosing at its own expense.

c. For quality assurance, the Supplier may record and/or monitor calls between Clients and Supplier agents, employees and/or its affiliates regarding the Products and Services (the “Service Calls”). The Supplier shall ensure that it complies with all applicable laws, including, without limitation, obtaining any required consents, in connection with such Service Calls.

d. Subject to Clauses 9a and 9b above, the liability of the Supplier shall be limited to the reasonable cost of remedying the breach or defect and in no circumstances, will it exceed the total amounts paid by the Client to the Supplier.

10. CHOICE OF LAW

This Agreement shall be governed and interpreted under the laws of Australia and the state of NSW.

11. DISPUTE RESOLUTION

a. In the event of a dispute arising out of or in connection with this Agreement, the parties will attempt to resolve the dispute through consultation by senior members of the Parties.

b. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation.

c. If mediation is unavailable, then binding arbitration in accordance with the laws of Illinois. The arbitrator shall be chosen by the Parties from a list of the American Arbitration Association and shall take place in the county of Cook, Illinois. The arbitrator’s award will be final, and judgement may be entered upon it by any court having jurisdiction within the country of United States of America.

12. NOTICE

Any notice, or other document to be given here-under shall be delivered or sent by email, first class post or facsimile transmission to the address or to the facsimile number of the other party set out in this Agreement (or such other address or number as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of forty-eight (48) hours after posting and (if sent by facsimile transmission) upon the expiration of twelve (12) hours after dispatch.

13. MODIFICATION OF AGREEMENT

Any amendment or modification of this Agreement or additional obligation assumed by either party in connection with this Agreement will only be binding if evidenced in writing and signed by each Party or an authorised representative of each Party.

14. SEVERABILITY AND WAIVER

a. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.

b. The waiver by either party of a breach, default, delay or omission of any of the provisions of this Agreement by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.