Terms of Service

Content Smith agrees to provide you (Client) with the services set out in Content Smith’s written proposal or quotation on the following terms and conditions.  That proposal or quotation and these terms and conditions will together form a binding and entire agreement upon the Client’s acceptance of quotation or proposal (Agreement), unless otherwise agreed between those parties in writing. 

WHEREAS: 

A. Content Smith is engaged in the business of providing digital marketing consultancy and related services to its clients in Australia.

B. The Client wishes to appoint Content Smith on an exclusive basis, to provide the Marketing Services (as defined in clause 1 of this Agreement), and Content Smith has agreed to such appointment, on the terms and conditions set out in this Agreement.

THE PARTIES AGREE AS FOLLOWS: 

1. INTERPRETATION 

1.1 Definitions 

“Monthly Consultancy Fee” means the agreed monthly consultancy fee to be paid by the Client to Content Smith in accordance with clause 4 of this Agreement, in consideration of the provision of the Standard Marketing Services by Content Smith, being the amount specified in the Quote of this Agreement, which amount may be amended in writing in accordance with this Agreement, from time to time. 

“Marketing Services” means the various digital marketing consultancy/management and related services to be provided by Content Smith to the Client pursuant to this Agreement, including: 

“Standard Marketing Services”, being the standard, core services and/or activities to be provided by Content Smith throughout the Term as a matter of course; AND, if applicable “Additional Marketing Projects” being any special projects/events/services which fall outside the Standard Marketing Services, as may be requested by the Client during the Term, on a ‘project by project’ basis; 

“Special Project Fee” means the professional fees to be paid by the Client to Content Smith in consideration of the provision of any Special Marketing Project, as agreed in accordance with clause 3.2 herein. 

“Term” means the term of this Agreement and includes both the “Initial Term” being the initial fixed period commencing and ending on the dates specified in the Quote of this proposal, and also includes any further period beyond the expiry date for the initial term whereby Content Smith continues to provide the Marketing Services to the Client, at the request of the Client. 

1.2 General 

In this Agreement, unless the context otherwise requires: 

(a) a recital, schedule or annexure forms part of this Agreement; 

(b) all references to ‘dollars’ or ‘$’ are references to Australian dollars; 

(c) any provision of this Agreement to be performed by two or more persons shall bind those persons jointly and each of them severally; and 

(d) the expression ‘persons’ includes an individual, the estate of an individual, a body politic, a corporation and a statutory or other authority or association (incorporated or unincorporated). 

2. APPOINTMENT OF CONTENT SMITH TO PROVIDE MARKETING SERVICES 

2.1 The Client hereby engages Content Smith, and Content Smith hereby agrees, to provide the Marketing Services as required, on an exclusive basis, during the Term (as defined in clause 1 of this Agreement), on the terms and conditions set out in this Agreement. 

2.2 Content Smith shall ensure the delivery of the Marketing Services in accordance with any direction given by the Client from time to time, provided that such directions are reasonable and consistent with the provisions of this Agreement. 

2.3 Having obtained the Client’s general approval in principle for a particular Standard Marketing activity or Special Marketing Project, Content Smith will submit to the Client for specific approval, all draft email campaigns, articles, copy and any other materials produced or procured by Content Smith. Content Smith will only need general approval of photographs and captions, layouts, artwork for social media platforms. Written or oral approval by the Client will be deemed authorisation to proceed to publication in each case. Should the Client not provide written or oral approval of scheduled content after a reasonable amount of time is provided, Content Smith will publish the content as scheduled.

2.4 Content Smith will take the initiative in offering advice and services, and the Client agrees to cooperate fully with Content Smith and to assist Content Smith with the performance of this Agreement by making available to Content Smith all information and assistance as may be requested by Content Smith from time to time. 

2.5 The parties agree that Content Smith may publicise its association with the Client’s name and/or brand, and include those details in a list to be shown to prospective or existing clients. 

2.6 Delayed, Suspended, or Abandoned Projects

Projects can sometimes stall as we wait on content, information, feedback, approvals, etc., that we have requested from clients. While waiting for your response, we will typically begin to work on other projects to use our time efficiently.

(a) A project is considered delayed if our request for assets, information, feedback, approvals, etc., goes without sufficient response for more than seven business days. When a project is delayed, we may remove it from our active project queue and place it at the back of the line. Work will resume on a delayed project when we have received what was asked for, and our queue of work will allow us to focus on your project again.

(b) A project is considered suspended if your response to our request for assets, information, feedback, approvals, etc., is delayed for more than 45 days without a reasonable cause as determined by us. When a project is suspended, an invoice for the remaining balance will be sent and considered due upon receipt.

(c) Once a project is considered suspended, it is the sole responsibility of the client to reactivate the project by (1) Supplying all items necessary to complete the project and (2) Paying the balance of the project in full and/or paying a reactivation fee equal to 10% of the project total. If the project is already paid in full, the 10% reactivation fee still applies. After a project is considered suspended, we will only perform additional work once the project has been reactivated, as explained above.

(d) A project is considered abandoned if your response to our request for assets, information, feedback, approvals, etc., is delayed for more than 90 days without a reasonable cause, as determined by us. When a project is abandoned, the full amount due is still owed.

3. PROFESSIONAL FEES AND COSTS 

3.1 Consultancy Fee for Standard Marketing Services 

In consideration of Content Smith providing the Standard Marketing Services, the Client will pay Content Smith the Monthly Consultancy Fee in accordance with clause 4 of this Agreement. 

Every new financial year, the marketing investment from a Client increases according to CPI.

3.2 Special Project Fee for Special Marketing Projects

Where the Client requests Content Smith to provide services in relation to a Special Marketing Project (being services/campaigns/activities which fall outside the Scope of Work), and Content Smith has agreed to provide the Special Marketing Project, the Client will pay Content Smith a Special Project Fee in accordance with clause 4 of this Agreement. For the purposes of this clause 3.2, Content Smith will submit a project budget setting out the estimated Special Project Fee, which fee/s will be estimated based on Content Smith’s standard rate of AU$300 p/hr, as well as any Production Costs in accordance with clause 3.3(b) (“Special Project Budget”). The parties agree and acknowledge that no work will be undertaken by Content Smith in connection with any Special Marketing Project until the relevant Special Project Budget has been approved in writing by the Client. 

3.3 Disbursements and Production Costs for Marketing Services

In addition to the Monthly Consultancy Fee (and/or the Special Project Fee where applicable), the Client shall pay Content Smith for the following costs incurred by Content Smith on the Client’s behalf, in the course of providing the Marketing Services: 

(a) Miscellaneous Disbursements to be charged at cost: includes any and all miscellaneous office/administrative disbursements including but not limited to telecommunications, local travel costs for events or Special Projects, photocopies, local couriers, postage etc. 

(b) Production Costs: Any and all production costs, including third party costs, e.g. artwork and mechanical items, film production and design, market research, photography, venue hire, invitations, special events and any other production costs, provided that such costs have been previously notified to the Client by Content Smith and approved by the Client in writing. 

4. INVOICING AND PAYMENT TERMS 

4.1 During the Term, Content Smith will invoice the Client as follows: 

(a) the Consultancy Fee payable for the Standard Marketing Services provided in respect of each calendar month, will be invoiced monthly in advance. Given the preparation and planning required to manage social channels, monthly invoices will be issued 2 weeks prior to work commencing for the following month. Please note our trading terms are 14 days. Unpaid invoices will result in immediate cessation of posting schedule and no further work will be conducted until payment is received; 

(b) where applicable, the Campaign/Project Fee will be invoiced 50% upfront and 50% upon completion of the Campaign/Project, as agreed in writing between the parties, as per the relevant Campaign/Project Budget; and 

(c) Content Smith shall provide a tax invoice to fees payable for the Special Project Fee, and payment shall be made to Content Smith within 14 days following receipt of the invoice.

(d) any and all Miscellaneous Disbursements and Production Costs payable in connection with the Marketing Services provided in respect of each calendar month will be invoiced monthly in arrears in each case unless otherwise agreed in writing by the parties. For the purposes of this subclause 4.1(c), the parties agree that Content Smith may require the Client to pay certain Production Costs in advance, where substantial advance payments or financial commitments are required to be made by Content Smith on the Client’s behalf, and the Client hereby agrees that it will meet any special payment terms stipulated by Content Smith in this respect.

4.2 In the event of any dispute in relation to an invoice issued pursuant to this clause 4, the Client must pay the amount of the invoice minus the amount that is in dispute, and must immediately notify Content Smith in writing of the nature of the dispute, prior to the due date for payment. 

4.3 All payments must be met by the payment deadline listed on the invoice. Balances that are unpaid after the payment deadline are subject to a fee of 1% on the owed amount every month, charged weekly until the balance is paid. For the purposes of this clause 4, where a charge or amount invoiced is in dispute and notification of such dispute is not provided to Content Smith by the Client on or before the date due date for payment, interest will be charged on the overdue amount pursuant to this clause 4.6 until written notification of the dispute is received by Content Smith. 

4.4 In the event that a new contract is not issued before the end of the contracted period, and work continues as per the agreed scope within this contract beyond the agreed term, then all terms and conditions of this contract will remain effective until appropriate notice is provided or the scope of work revised and a new contract issued. 

5. GST 

Where a party to this Agreement ("the Supplier") makes a Taxable Supply under or in connection with this Agreement or in connection with any matter or thing occurring under this Agreement to another party to this Agreement (the "Recipient"), the Supplier will be entitled, in addition to any other consideration recoverable in respect of the supply, to recover from the Recipient the amount of any GST on the Taxable Supply. If the amount paid by the Recipient to the Supplier in respect of GST differs from the GST on the Taxable Supply (taking into account any Adjustments Events that occur in relation to the Supply), an adjustment shall be made. If the amount paid by the Recipient exceeds the GST on the Taxable Supply, the Supplier shall refund the excess to the Recipient. If the amount paid by the Recipient is less than the GST on the Taxable Supply, the Recipient shall pay the deficiency to the Supplier. Where a party to this Agreement is entitled, under or in connection with this Agreement or in connection with any matter or thing occurring under this Agreement, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs. 

In this clause: 

"GST legislation" means the A New Tax System (Goods and Services Tax) Act 1999 and any related Act imposing such tax or legislation that is an Act to validate, recapture or recoup such tax; 

"GST" means the tax payable on Taxable Suppliers under the GST Legislation; and 

"Adjustment Event", "Input Tax Credit" and "Taxable Supply" each have the respective meaning given to that term in the GST Legislation. 

6. CONFIDENTIAL INFORMATION 

6.1 The parties agree that all information relating to the other party which comes to the knowledge of a party pursuant to this Agreement is confidential and shall be used solely for the purpose contemplated herein and shall not be disclosed to any third party. However, this obligation of confidentiality shall not apply to information which: 

(a) is or lawfully comes into the public domain, other than as a result of a breach of this clause; 

(b) is already in possession of the party receiving that information without restriction, and prior to any disclosure by the other party, as evidenced by the appropriate documentation; 

(c) is required by law to be disclosed; 

(d) is disclosed to the party receiving the information by a third party who has a right to disclose that information without putting an obligation of confidentiality on the party receiving that information; 

(e) is required to be disclosed to enable a party to carry out its obligations under this Agreement; or 

(f) is disclosed with the prior consent of the other party. 

6.2 The obligations set out in this clause shall apply both during and after the termination or expiry of this Agreement. 

7. INDEMNITY 

7.1 The Client will indemnify and hold Content Smith harmless from and against any and all claims, demands, regulatory proceeding and/or causes of action, and all damages, losses, liabilities, costs (including without limitation settlement costs) or expenses associated therewith (including without limitation legal fees on a full indemnity basis) arising from any information or materials supplied to Content Smith by the Client in connection with, or otherwise associated with the provision of the Marketing Services, or from any act or thing was done by Content Smith on the Client’s instructions, as well as any third-party contracts entered into by Content Smith on the Client’s behalf. Without limitation to this clause 7.1, the Client acknowledges and agrees that it is its sole responsibility to ensure that the content of any material prepared by Content Smith in relation to the Client and its products/services pursuant to the provision of the Marketing Services, and which is approved by the Client pursuant to clause 2.3 of this Agreement, is accurate and correct in all respects. 

7.2 Content Smith will indemnify and hold the Client harmless from and against any and all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including without limitation settlement costs) or expenses associated therewith (including without limitation legal fees on a full indemnity basis) arising out of any act of bad faith, intentional malfeasance or negligence by Content Smith in the provision of the Marketing Services. Without limitation, Content Smith will be responsible for ensuring that all materials and work prepared and actioned pursuant to its provision of the Marketing Services, is approved by the Client. 

7.3 Each indemnity set out in this clause 7 is a continuing obligation, separate and independent from the other obligations of the parties, and survives the termination or expiry of this Agreement. 

8. OWNERSHIP OF MATERIALS 

8.1 Subject to clauses 8.2 and 8.3, Content Smith agrees that, after full settlement by the Client of all invoices and accounts relating to the creation of any materials (including artwork and copy) prepared by Content Smith and accepted by the Client for use in its marketing activities pursuant to this Agreement (“Materials”), any intellectual property in any such Materials (including any copyright), to the extent allowed by law, and subject to any third party rights and moral rights, will assign to the Client. If a full assignment is not possible, Content Smith will use its best endeavours to advise the Client of any relevant limitations. Content Smith shall, upon the written request of the Client, forthwith execute all documents and do all things as may be required to effect such assignment and to vest such property in the Materials with the Client. 

8.2 The Client acknowledges that Content Smith can only assign the intellectual property rights, which Content Smith owns and there may be limitations on the use and ownership of certain materials by the rights of third parties such as the existence of limited licences to use talent and music, and moral rights. Content Smith will endeavour to secure moral rights consents from the creators of any such materials. However, the Client acknowledges that it may not always be possible to secure such consents (particularly for freelancers and consultants) and that even if consents are obtained, the extent of such consents may be limited. Content Smith will endeavour to advise the Client of the existence of such limitations under which the Client will be bound. 

8.3 The Client further agrees that all Content Smith ‘Working Files’ (namely, Canva files used in the creation of art design and finished artwork), together with any idea or concept presented by Content Smith in relation to any possible, considered or planned public relations activity or event which is not the subject of work or services actually commissioned by the Client, are not assigned to the Client under clause 9.1 and will remain the property of, and form part of the confidential information of, Content Smith. The Client must keep such information strictly confidential and must not communicate the information to any third person, use or copy any part of it, without Content Smith’s prior written consent. The Client agrees to return to Content Smith any document containing or referring to such confidential information on the earlier to occur of a request by Content Smith, or the termination or expiry of this Agreement. This sub-clause survives the termination of this agreement. Notwithstanding this clause 8.3, the Client may request to purchase any Working Files and Content Smith may agree to sell some to the Client at a rate agreed between the parties.

9. TERMINATION AND EFFECT OF TERMINATION 

9.1 During the Term of this Agreement, either party may terminate this Agreement immediately: 

(a) by written notice to the other party in the event of a material breach of this Agreement by the other party which is not rectified within fourteen (14) days of receipt of a written notice specifying the breach and the steps required to be taken to correct the breach; 

(b) by written notice to the other party upon the happening of any of the following events of insolvency: 

(i) a party resolves to wind up or otherwise dissolve, or an application is made to a court for an order for either party to be wound up, or for a liquidator or provisional liquidator to be appointed to either party, or such an order is made, or either party enters or resolves to enter into administration or a scheme or deed of arrangement or composition with or assignment for the benefit of any or all creditors, except to reconstruct or amalgamate while solvent; 

(ii) one of the parties is unable to pay its debts when they fall due; 

(iii) sections 459F(1), 459C(2)(b) or 585 of the Corporations Act 2001 (Cwlth) applies; or 

(iv) on the occurrence of any similar event to those described above under any law in any jurisdiction. 

9.2 In addition to clause 9.1, upon the expiry of the Initial Term (as defined in clause 1.1), either party may terminate this Agreement without cause by giving the other party one (1) calendar month’s written notice to that effect. 

9.3 During any notice period under clause 9, Content Smith’s rights, duties and responsibilities shall continue in full force during the notice period, and Content Smith shall be entitled to payment by the Client of all fees and other costs payable pursuant to this Agreement in respect of the billing periods falling within the notice period. 

9.4 The Client agrees to settle promptly any outstanding accounts with respect to the period prior to the effective date of termination. 

9.5 Upon request, Content Smith agrees to transfer or assign to the Client or its designee any unexpired contracts and arrangements made exclusively on the Client’s behalf which are capable of being transferred or assigned without penalty, PROVIDED THAT upon such transfer or assignment, the Client agrees to release and hold Content Smith harmless in relation to any future obligations under such contracts and arrangements. 

9.6 Content Smith agrees that immediately upon termination of this Agreement, it will deliver to the Client: 

(a) all original or copied papers, records or other documents provided by the Client to Content Smith for the performance of the Marketing Services under the Agreement; and 

(b) all property of the Client in Content Smith’s possession or control. 

(c) Notwithstanding this clause 9.6, the parties agree that any property made available by the Client during the Term for any purpose arising in connection with this Agreement shall be and at all times remain at the risk of the Client. 

10. REVIEW OF MARKETING SERVICES AND MONTHLY CONSULTANCY FEES AND COSTS 

When the Client engages Content Smith with the all-inclusive plans, the fair use policy applies. If our efforts tip over the higher end of the hourly range over two consecutive months, we'll revisit the monthly flat rate. This ensures equitable and sustainable service for all our clients. Rest assured, we'll collaborate openly throughout this process to find a solution that aligns with your evolving needs and maintains our mutually beneficial partnership.

Upon the expiration of the Initial Term (and every twelve (12) months thereafter during the Term), the parties may conduct a review of the consultancy service arrangement provided in this Agreement in order to assess whether any revisions are required to be made to the Marketing Services provided by Content Smith, and, if necessary any corresponding revision to the Monthly Consultancy Fee (if applicable) and/or other remuneration provisions contained herein. Any such revisions to the arrangements contemplated by this Agreement must be agreed in writing, signed by both parties and annexed to this Agreement. 

11. CANCELLATION/AMENDMENTS 

11.1 The Client hereby acknowledges and agrees that once a Standard Marketing Services activity (or a Special Project Budget for any Special Marketing Project pursuant to 3.2) has been costed and submitted by Content Smith and approved by the Client, pursuant to this Agreement, work for the particular activity (or other project) will commence, in accordance with the scope of services and cost estimates for the activity (or other project) set out in the relevant budget. In this respect, the Client further acknowledges and agrees that any subsequent cancellation or amendment to the activity (or other project) by the Client may render any and all internal services performed by Content Smith and/or any and all external services procured by Content Smith, in relation to the activity (or other project) prior to the date of receipt of notification of such cancellation/amendment, unnecessary (in the case of cancellation) or no longer relevant (in the case of an amendment to a particular aspect of the activity or other project). 

11.2 In the event that the Client requests that Content Smith change, reject, cancel or stop any or all plans or work in progress, Content Smith shall take all reasonable steps to comply with the Client’s request, provided that Content Smith can do so within its contractual obligations to third parties. In the event of any such amendment, cancellation, or the termination of this Agreement (after approval of the budget/s submitted by Content Smith), the Client hereby agrees to indemnify Content Smith for any and all charges or expenses to which Content Smith is committed (including but not limited to all third party costs and expenses incurred by Content Smith in connection with the relevant activity or other project), and the Client will also pay Content Smith its remuneration for the applicable professional services provided by Content Smith in relation to those items, as at the date of receipt of notification by Content Smith of such amendment, cancellation or termination, including but not limited to, the full Monthly Consultancy Fee (in the case of all Standard Marketing Services) and, in the case of any Special Marketing Project, no less than 60% of the Special Project Fee, as set out in the relevant budget estimate. 

12. NON SOLICITATION 

Content Smith agrees that during the Term of this Agreement, and for a further 12 months after the expiry thereof, it will not solicit or entice a member of the Client’s staff to cease employment and work for Content Smith. Similarly, the Client agrees that for the same period, it will not solicit or entice a member of Content Smith’s staff to cease employment and work for the Client. 

13. GENERAL 

13.1 Entire Agreement 

This Agreement (and its Schedules and attachments) constitutes the entire agreement of the parties as to its subject matter and supersedes all prior agreements, understandings and negotiations as to such subject matter. 

13.2 Severability 

Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction if possible, so as to be valid or unenforceable and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction. 

13.3 Variation

No variation to this Agreement shall be effective unless and until it is set out in writing and signed by all parties to this Agreement. 

13.4 Notices 

Any notice, consent or other communications required by this Agreement must be in writing and addressed to the address of the intended recipient as shown on the first page of this Agreement, or to such other address as has been most recently notified to the intended recipient to the party giving the notice. For the purposes of this clause 13.4, a letter is taken to have been received by the other party: 

(a) in the case of a hand-delivered letter, on receipt by the party to whom it is addressed; or

(b) in the case of a posted letter, on the third Business Day after posting.

13.5 Counterparts 

This Agreement may be signed in any number of counterparts with the same effect as if the separate signatures or execution of the parties were all on the same instrument. 

13.6 Governing Law 

This Agreement is governed by the laws in force in Victoria, Australia.