This is the Legal Agreement in relation to any work carried out by Angela Wright trading as Optimising Business on behalf of Amuse Australia Pty Ltd
1. Time for Performance
Contractor will perform the services within 30 days of scheduling the project. Clients will only be scheduled once payment is received.
Client is responsible for submission of all initial data and content to Contractor within 7 days of a signed contract. Likewise, Client will submit any additional content requested by the Contractor and/or final proofing and editing to Contractor within 3 days of a request by the Contractor.
Client will pay in full as agreed without delay.
3. Terms of Payment
Payment to be received by the Contractor within 7 days.
Payment can be made by bank transfer payable to:
Amuse Australia Pty Ltd
Commonwealth Bank account:
BSB 06 44 49
Account no 1037 2273
Upon receipt of payment the Contractor may start the process. Development and optimisation will not begin until initial payment is received.
4. Limited Liability
This provision allocates the risks under this Agreement between Contractor and Client. Contractor’s pricing reflects the allocation of risk and limitation of liability specified below.
Contractor’s total liability to Client under this Agreement for damages, costs, and expenses shall not exceed the compensation received by Contractor under this Agreement. However, Contractor shall remain liable for bodily injury or personal property damage resulting from grossly negligent or willful actions of Contractor, Contractor’s employees, or agents, while on Client’s premises to the extent such actions or omissions were not caused by Client.
There have been no promises or agreements in the contracted work that will result in any sales, profits, or revenue for the client. The contracted work and training is strictly for helping the client to learn social media and to help them develop an online presence and not to facilitate sales of their products and services.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR THE OTHER’S LOST PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.
Contractor will be responsible for all expenses required for the performance of the contractual services, except for the following, which will be paid for by Client:
For any additional services which are elected by the Client such as additional programming, main website development, consulting, etc, the Contractor will submit a budget and expense to be approved by the Client and the client must approve the terms and the contractor must receive payment before the work is done.
6. Period, Fees and Terminating the Agreement
The initial period is for 12 months unless stated otherwise on the Contract signed contract.
Following the initial period, this contract is for 12 months unless stated otherwise on the Contract.
The contact will become a rolling contract subject to 90 days notice of termination after the initial period. If the client terminates the contract, the contractor shall be entitled to full payment for services performed within the 90 days’ notice period.
If the client terminates the contract during the initial 90 day period, the contractor shall be entitled to full payment for services performed with a minimum of 90 days’ charge. The client agrees to maintain the contract for 90 days at the agreed price and may cancel after that with a 90 day notice period. The contractor shall be entitled to full payment for services performed prior to the end date of any 90 days’ cancellation period.
Monthly fees are at fixed rates subject to notice given in advance of any increases.
7. Intellectual Property Ownership
Contractor shall retain all copyrights, patents, trade secrets, and other intellectual property rights to the strategies that have been given to the client. These intellectual properties are not to be shared with any parties that are not a part of this contract. We are focused on educating you and promoting your reputation online, not educating 3rd party firms.
The contractor will maintain ownership of the contractor’s resources used. Example: Sites and resources solely hosted by the contractor and contractor optimised websites, tracking systems etc.
Online marketing assets created and/or optimised and maintained for the client by the contractor are in the client’s name and ownership and include all or some of the client’s Google presence, video review commercials, Google+, Google+ Local, Youtube, Daily Motion, Facebook, Twitter, Pinterest, Photobucket, Picasa, Flickr and any other social media, local media, video sites, citations and directory sites.
Client shall obtain all necessary copyright permissions and privacy releases for materials included in the content that is given to the contractor. Client shall indemnify Contractor against all claims and expenses, including reasonable legal fees, due to Client’s failure to obtain such permissions or releases.
Client gives full permission to use all content provided to the contractor under the terms of this agreement, including photos, videos, and all other content provided to the contractor.
9. Independent Contractor Status
The parties intend the Contractor to be an independent contractor in the performance of the services. Contractor and Client agree to the following rights consistent with an independent contractor relationship.
- Contractor will have the right to control and determine the methods and means of performing the contractual services.
- Contractor has the right to perform services for others during term of this Agreement.
- Contractor has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement.
- Client shall not require Contractor or Contractor’s employees or subcontractors to devote full time to performing the services required by this Agreement.
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute.
If the dispute is not resolved within 30 days after it is referred to the mediator, it will be arbitrated by an arbitrator to be mutually selected. Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter. Costs of arbitration, including lawyers’ fees, will be allocated by the arbitrator.
11. No Partnership
This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts on the other’s behalf.
12. Entire Agreement
This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings.
13. Successors and Assignees
This agreement binds and benefits the heirs, successors and assignees of the parties.
All notices must be in writing. A notice may be delivered to a party at the address that follows a party’s signature or to a new address that a party designates in writing. A notice may be delivered:
- In person
- By certified mail, or
- By overnight courier.
15. Governing Law
This agreement will be governed by and construed in accordance with the laws of the state in which the contractor resides.
The parties may sign several identical counterparts of this agreement. Any fully signed counterpart shall be treated as an original.
This agreement may be modified only by a writing signed by the party against whom such modification is sought to be enforced.
If one party waives any term or provision of this agreement at any time, that waiver will be effective only for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this agreement, that party retains the right to enforce that term or provision at a later time.
If any court determines that any provision of this agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this agreement invalid or unenforceable and such provision shall be modified, amended or limited only to the extent necessary to render it valid and enforceable.
20. Terms of Trade & PPSA
In these conditions unless the context otherwise requires:
- Company means the contactor Amuse Australia Pty Ltd trading as Optimising Business.
- Buyer means the Client buying the goods from the Company.
- Products and/or services mean the products and/or services being purchased by the Buyer from the Company.
- Contract means the contract between the Company and the Buyer for the purchase of the goods.
- Date of the contract means where the contract arises from a quotation given by the Company, i) the date of acceptance of the order by the Company; or ii) Where the contract arises from a quotation given by the Company, the date upon written notification of acceptance of the quotation is received by the Company.
- Contract price means the price of goods as agreed between the Buyer and the Company.
- Person includes a corporation, association, firm, company, partnership or individual. Quotation shall mean price on offer for a fixed term. Manager is the companies appointed decision maker.
- PPSA means the Personal Property Securities Act 1999.
The Buyer may request a Quotation from the Company setting out the price and quantity of the Goods to be supplied. If the Quotation is acceptable to the Buyer, the Buyer may place an order within an acceptable timeframe.
If any instruction is received by the Company from the Buyer for the supply of products and/or services, it shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
4. Terms and Conditions
These terms and conditions and any subsequent terms and conditions issued by the Company shall apply to all orders for goods and the services made by the Buyer after the date and time at which these conditions are first delivered or sent by email, digital message or post to, or otherwise brought to the notice of, any employee, staff member or representative of the Buyer. It shall be the Buyer’s responsibility to ensure that these conditions are promptly brought to the attention of the appropriate staff of the Buyer, and accordingly any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
5.1.The Price shall be as indicated on invoices provided by the Company to the Buyer in respect of products and/ or services supplied; or
5.2.The Price shall be the Company’s current Price at the date of delivery of any goods.
5.3.Time for payment for the products and/or services shall be of the essence and will be stated on the invoice, quotation, tender documents, work authorisation form or any other work commencement forms. If no time is stated then payment shall be due on delivery of any goods.
5.4. The Buyer agrees that the cost Price shall be determined by the Company, and shall take into consideration “one-off” costs such as design and production.
5.5.The Company reserves the right to implement a surcharge for alterations to specifications of products after the order has been placed.
6. Payment, Late Payment, Default of Payment and Consequences of Default of Payment
6.1.The method of payment will be made by cash, or by cheque or by electronic funds transfer or by any other method as agreed between the Buyer and the Company.
6.2.Subject to any provision to the contrary in the Contract, payment shall be received on or before the stated due date of the invoice.
6.3. Late payment shall incur interest at the rate of 10% per annum calculated on a daily basis. This shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date.
6.4.Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its rights under this clause.
6.5.In the event that:
- any money payable to the Company becomes overdue, or in the Company’s opinion the Buyer will be unable to meet its payments as they fall due; or
- the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then without prejudice to the Company’s other remedies at law
- the Company shall be entitled to cancel all or any part of any order of the Buyer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
7.1.The Contract constitutes a security interest in the goods supplied by the Company to the Buyer for the purposes of the PPSA as security for payment by the Buyer of all amounts due under the Contract, including any future amounts.
7.2.The Buyer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Buyer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company.
7.3.To the extent that Part 9 of the PPSA applies, the Buyer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Buyer’s benefit, or place any obligations on the Company in the Buyer’s favour, will not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
7.4.To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Buyer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
7.5.The Buyer agrees to treat the security interest in the goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the goods have become fixtures at any time before payment has been made for them.
7.6.This applies to the initial and all subsequent purchases by the Client from the Company.
8. Governing laws
These Terms of Trade will be interpreted in accordance with applicable government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the products and/or services or these Terms of Trade.
9. Dispute resolution
The Company will endeavour to resolve any dispute between the Buyer and itself without the need for Court proceedings. Any such attempt is without legal prejudice.
10. Reservation of title
Ownership and title of the goods remains with The Company until the purchased price and all other monies owing by the Buyer, under the contract or any other contract to The Company, have been paid in full.
The Company warrants that it will repair or make good any defects in the goods and/or services if written notice of the claim is received by the Company within seven (7) days from the date the goods were delivered. No claim shall be accepted under such warranty if any attempt to repair the defective goods is made by any person not authorised by the Company, or if the defective goods have been modified or incorrectly stored, maintained or used. If the Company elects to repair or replace any defective goods, such work shall be undertaken at such place as the Company may reasonably specify and the Buyer shall be responsible at its cost and risk for shipment of the defective goods to the place specified.
The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company’s obligations under the contract, including any cancellation of the contract or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Buyer’s servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Buyer shall indemnify the Company against any claim by any such person.
Here is further information on the PPSA: https://www.youtube.com/watch?v=IrGyTjo2JI8
In making payment, the Buyer confirms to have read and accept the Terms of Trade as outlined in this document.