Definitions, Interpretation and General Terms
1.1 The following words have the corresponding meanings:
(a) “Available Services” means any or all of the following:
a. Analyse Customer’s current and proposed products and services and present and potential markets.
b. Create, prepare and submit to Customer for its prior approval advertising ideas and programs.
c. Prepare and submit to Customer for its prior approval estimates of costs and expenses associated with proposed advertising ideas and programs.
d. Design and prepare, or arrange for the design and preparation of, advertisements.
e. Perform such other services as Customer may request from time to time such as, but not limited to, advertising preparation, website development and content production, market research and analysis.
f. Order advertising space, time or other means to be used for publication of Customer’s advertisements, at all times endeavouring to secure the most efficient and advantageous rates available.
g. Proof for accuracy and completeness of insertions, displays, broadcasts, or other forms of advertisements.
h. Manage Digital Marketing Functions monthly of Search Engine Optimisation, Search Engine Marketing (Adwords Management), Display / Video Ad Management, Social Media Management, Content Development, Reporting, Website Maintenance, Content planner, Audit invoices for space, time, material preparation and charges.
(b) “Commencement Date”: means the date the last party executes the document.
(c) “Control”: the definition given to that term in section 50AA of the Corporations Act 2001 (Cth), and the expression change of control shall be construed accordingly.
(d) “Customer Materials”: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to BFJ Digital in connection with completing the Available Services.
(e) “Data Incident”: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information BFJ Digital has collected, held, used or disclosed in the course of or relating to a agreement.
(f) “Deliverables”: any output of the Available Services to be provided by BFJ Digital to the Customer as specified in a SOWs.
(g) “Eligible Data Breach”: an eligible data breach as that term is defined in the Privacy Amendment (Notifiable Data Breaches) Act 2016 (Cth), occurring on or after 22 February 2018.
(h) “GST”: goods and services tax chargeable under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(i) “GST Law”: means “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) “Intellectual Property Rights”: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, circuit layout designs, topography rights and database rights, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and technical data), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future.
(k) “Personal Information”: has the meaning given in the Privacy Act.
(l) “Privacy Act”: Privacy Act 1988 (Cth) as amended from time to time.
(n) “Reference Charges”: the standard charges for the Available Services or the method for their calculation, being:
The daily rate for BFJ Digital:
[DAILY RATES FOR BFJ DIGITAL TEAM. SPECIFY IF MORE SENIOR MEMBERS OF THE TEAM (FOR EXAMPLE, PROJECT MANAGERS) HAVE HIGHER RATES THAN OTHER MEMBERS OF THE TEAM].
The weekend rate for BFJ Digital: [NUMBER]%.
The overtime rate of BFJ Digital: [NUMBER]%.
(o) “Sensitive Information”: has the meaning given in the Privacy Act.
(p) “SOW Charges”: the sums payable for the Available Services as set out in a SOW.
(q) “Statement Of Work” / “SOW”: a statement in a form at the discretion of BFJ Digital marked as a Statement of Work describing the Available Services to be provided by BFJ Digital to the Customer.
(r) “BFJ Digital’s Equipment”: any equipment, tools, systems, cabling or facilities, provided by BFJ Digital to the Customer and used directly or indirectly in the supply of the Available Services.
(s) “Website”: https://bfj.digital/
2.1 In a document unless the contrary intention appears:
(a) words importing the singular number include plural and vice versa, the masculine gender includes the feminine or neuter and vice versa and words importing persons include corporations and vice versa.
(b) reference to any statutory law includes laws, regulations and instruments issued under such a law and all amendments and modifications to that law and any law passed in substitution, consolidation, re-enactment or replacement for that law.
(c) a reference to any agreement or document is to that agreement or document (and where applicable, its provisions) as amended, varied, novated, supplemented, substituted or replaced from time to time.
(d) a reference to an individual or person including corporation, partnership, joint venture, association, authority, trust, state or government and vice versa.
(e) a reference to any Party to a document or any other document or arrangement includes that Party’s executors, administrators, substitutions, successors and permitted assigns.
(f) references to clauses, schedules and annexures are to clauses, schedules, and annexures of a document.
3.1 An amendment or variation of any term of an agreement must be agreed in writing.
3.2 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with an agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
3.3 If the whole or any part of a provision of an agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not. A clause does not apply if the severance of a provision of a agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under an agreement.
3.4 A agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
3.5 Nothing in an agreement gives a party authority to bind any other party in any way nor imposes any fiduciary duties on a party in relation to any other party.
3.6 A notice or other communication to a party under a agreement (Notice) must be in writing and in English, signed by the sender or a person authorised to sign on behalf of the sender; and must not be given by electronic means of communication other than email.
3.7 A agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute an agreement by signing any counterpart. The date on which the last counterpart is executed is the date of the relevant agreement.
3.8 A agreement is governed by the law in force in Queensland. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with an agreement.