Terms of service.

Please find our Terms of Service for all services billed on a Monthly Basis below. If you have any queries or concerns please contact us.

TERMS OF SERVICE

These are the Terms and Conditions on which The New Now Media Pty Ltd ACN 660 485 441 (“The New Now Media”) will carry out work for you.  By accepting our quote, you are deemed to have accepted these Terms and Conditions.

IT IS AGREED:

1.              Definitions

1.1           Additional Fees means fees applicable to Services not foreseen or not requested by you before commencement of the Services including:

(a)            content not in the appropriate format;

(b)            extra workshops or workshops requiring additional hours;

(c)            requested additional design concepts/alternations;

(d)            requested changes to the design after final approval has been requested or provided;

(e)            purchasing Content required to provide the Services; and

(f)             any charges incurred by you in accordance with clause 3.3.

1.2           Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

1.3           Confidential Information of a party means any information regarding that party’s business or affairs or that party’s customers, employees, or other people doing business with that party which is:

(a)            by its nature confidential;

(b)            designated as confidential by that party at the time of disclosure; or

(c)             which the other party knows or ought to know is confidential.

Confidential information does not include information, documents or materials that are common property, are required to be disclosed by law or are available in the public domain in Australia otherwise than by a breach of these Terms and Conditions.

1.4           Content includes written material/copy, images, photos, fonts, audio and video.

1.5           Fees means the fees stated in the pricing plans on The New Now Media’s website or otherwise provided to you and includes any Additional Fees.

1.6           Intellectual Property Rights includes all worldwide registered and unregistered copyrights, trade marks, designs, patents, inventions, brands, logos, circuit layout rights, concepts, catch phrases and other similar industrial property rights and rights to registration of such rights whether created before or after the provision of the Services or as developed during the course of providing the Services.

1.7           Moral Rights are defined in Section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.

1.8           Services means the marketing, graphic design, social media, Pinterest, content marketing and virtual assistant services provided by The New Now Media or any part thereof.

1.9           Site means any location to which The New Now Media is required to travel for the purposes of providing the Services.

1.10        Tax Invoice means includes any document or records treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.

1.11        Term means the term commencing on the date the Services commence and ending in accordance with clause 4 of these Terms and Conditions.

1.12        Travel Fees means the costs reasonably incurred by The New Now Media in travelling to a Site, including (but not limited to):

(a)            where The New Now Media is required to travel by plane; the airfares, accommodation near the Site, and any other costs required to be incurred by the New Now Media in reaching the Site (including but not limited to the costs of hiring a vehicle); or

(b)            where the Site is located outside of a 20km radius from the The New Now Media’s business address (7 Warbler Street, Inala) and The New Now Media is required to travel by vehicle to reach the Site; a charge of the current Miscellaneous Award Vehicle Allowance rate plus GST per kilometre, which you acknowledge is a reasonable charge for fuel, vehicle wear and time taken to reach the Site.

2.              Provision of Services

2.1           The New Now Media shall provide the Services to you on dates and times to be mutually agreed between the parties.

2.2           Prior to commencement of the Services, you will be required to undertake an onboarding process with The New Now Media.  You acknowledge that the onboarding process is vital to the success and quality of the Services.  The onboarding process will take approximately 3 weeks and is required to be fully completed prior to the commencement of the Services.  Any delay by you in providing any requested information or Content to The New Now Media will result in a delay to the onboarding process and a subsequent delay to the commencement of the Services.

2.3           You may request a variation of the Services by notice in writing to The New Now Media.  If The New Now Media accepts such variation, The New Now Media will advise you of the date the variation will take effect and the Fees applicable to such Services will vary accordingly in accordance with the applicable fee structure for services of that type.

2.4           The New Now Media will seek your approval during the provision of the Services of strategies, content, schedules, social media posts and other elements of the Services.  You must provide its approval or otherwise as soon as practically possible after receiving a request for approval from The New Now Media and you will be deemed to have approved where a response is not received by The New Now Media within 48 hours of a request.

2.5           If a variation of the Services or any part thereof is required after approval is given in accordance with clause 2.3, Additional Fees will apply and The New Now Media will provide you with a fee proposal before carrying out any further Services.

2.6           The New Now Media will provide you with monthly analytics reports in relation to the performance of the marketing and promotional activities which form part of the Services.

3.              Fees

3.1           Fees for packaged Services are payable monthly, two weeks in advance.  Fees for packaged Services will be payable throughout the onboarding process.

3.2           Fees for ad hoc, pay as you go Services or Additional Fees are payable monthly in arrears. 

3.3           Travel Fees will be payable where The New Now Media is required to travel outside of a 20km radius from the The New Now Media’s business address (7 Warbler Street, Inala).  Travel Fees are payable monthly in arrears.

3.4           Fees are payable on the 15th day of each month.  Tax Invoices are issued monthly at the beginning of the month.

3.5           You must pay interest on any outstanding Fees at a rate of 10% per week.

3.6           The New Now Media reserves the right to suspend the provision of Services until any overdue Fees are paid.

3.7           Where The New Now Media travels to a Site (regardless of the location of that Site) and the Services are unable to be provided from the Site without notice to The New Now Media, you must pay the reasonable travel costs and time incurred for The New Now Media travelling to and from the Site as Additional Fees. 

3.8           Fees may be varied from time to time by 30 days’ notice in writing to you.

3.9           Unless otherwise, the Fees are inclusive of GST.

4.              Term and Termination

4.1           Either party may terminate the Services by 7 days’ written notice to the other party.

4.2           If The New Now Media becomes incapable of providing the Services through illness or otherwise, The New Now Media may terminate the Services by notice in writing to you effective immediately.

4.3           The New Now Media may terminate the Services immediately without notice and without any right for you to claim damages of any kind if:

(a)            you breach these Terms and Conditions;

(b)            you are reasonably suspected to, or have, infringed upon a third-party’s Intellectual Property Rights or breached a provision of the Spam Act 2003 (Cth);

(c)            you become the subject of bankruptcy, administration, liquidation or winding up procedures or otherwise is or becomes or threatens to become insolvent;

(d)            you become a person whose person’s estate is liable to be dealt with any way under the laws relating to mental health; or

(e)            you cease, or threaten to cease, to carry on business for any reason.

4.4           In the event that the Services are terminated, you must pay to The New Now Media any Fees due for Services performed up to the date of termination.

5.              Your Obligations

5.1           You must supply to The New Now Media, all Content required to allow The New Now Media to provide the Services, and all other Content The New Now Media reasonably requests, in a timely manner.

5.2           You must supply all Content in the following digital format/s:

(a)            text/copy: Microsoft Word or Rich Text (clearly labelled and in correct order);

(b)            tables: Microsoft Excel (clearly labelled and in correct order);

(c)            images: high resolution where possible (JPEG, PNG files);

(d)            logos: vector format (Illustrator EPS/AI) and JPEG files;

(e)            diagrams/maps: vector format (AI) or (JPEG files); and

(f)             if required, access to your current website and database via SSH, FTP and/or CMS/hosting control panel login;

5.3           You must also provide to The New Now Media:

(a)            usernames and passwords for the following platforms:

(i)             Instagram;

(ii)            Facebook;

(iii)           Pinterest;

(iv)           Linkedin;

(v)            Canva (if applicable); and

(vi)           Any other platforms required to carry out the Services;

(b)            brand style guidelines (if applicable);

(c)            any taglines, brand messages, mission statements, vision statements, etc; and

(d)            any other professional or branded images required to carry out the Services.

5.4           You must add a nominated contact or representative of The New Now Media as an admin to your business Facebook page.  The contact or representative will be nominated by The New Now Media at the time of commencing the Services.

5.5           The New Now Media may charge Additional Fees if Content is not provided in the appropriate format or if Content is not supplied when requested and The New Now Media is required to source Content from third parties in order to carry out the Services.

5.6           You must conform with the requirements of the Spam Act 2003 (Cth).  You must not breach the provisions of this Act, nor must it instruct The New Now Media to breach any provision of this Act.

5.7           You confirm that you agree with any terms and conditions of use, posting or advertisement placement on any of the social media platforms it authorises The New Now Media to engage with on its behalf.

5.8           Where The New Now Media is required to attend a Site, you must ensure the Site complies with all relevant health and safety rules and regulations.  You must hold public liability insurance for any Site attended by The New Now Media and must provide satisfactory evidence of its insurance to The New Now Media upon request.

6.              Intellectual Property

6.1           Any Intellectual Property Rights owned by, or created by The New Now Media during the provision of the Services, are the exclusive property of The New Now Media.  The New Now Media grants you a royalty free, non-exclusive licence to use The New Now Media’s Intellectual Property Rights supplied during the course of providing the Services to the extent required for you to use the Services.

6.2           You must not, without the prior written consent of The New Now Media:

(a)            adapt, create derivative works from or merge the template or other Intellectual Property provided during the provision of the Services;

(b)            use any Intellectual Property provided by The New Now Media for any purpose other than the specific purpose for which The New Now Media have provided it;

(c)            reverse engineer, disassemble or decompile any Intellectual Property provided by The New Now Media; or

(d)            distribute, lend, resell, transfer, assign or sublicence any Intellectual Property provided by The New Now Media, or allow any other person to use it.

6.3           You warrant that the materials or content provided to The New Now Media, will not breach any rights (including Intellectual Property Rights or Moral Rights) of any third party or compromise the security or operation of The New Now Media’s computer systems, through a virus or otherwise.

6.4           You acknowledge that where Content is purchased or licensed from a third party by The New Now Media, The New Now Media will be the purchaser or license holder and must comply with the terms of any purchase or licence.  Any breach of the provisions of these Terms and Conditions by you may result in a breach of any licence The New Now Media has entered into in obtaining the Content and you indemnify The New Now Media for any such loss.

6.5           You agree that The New Now Media may use any of part of the Services for promotional and portfolio purposes.

6.6           You authorise The New Now Media to place its company logo and case study on its website or promotional collateral for promotional purposes.

7.              WARRANTY DISCLAIMER

7.1           Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.

7.2           Subject to The New Now Media’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, The New Now Media expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.

8.              LIMITATION OF LIABILITY AND WARRANTY

8.1           To the fullest extent permissible by law, The New Now Media is not liable (whether in contract or tort) for:

(a)            faults or defects in any services or goods provided by third parties in connection with the Services; or

(b)            any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not The New Now Media knew of the possibility of such loss and whether or not such loss was foreseeable.

8.2           To the fullest extent permitted by law, the liability of The New Now Media for a breach of a non-excludable condition is limited to the supplying of the Services again or payment of the cost of having the Services supplied again.

8.3           The New Now Media makes no warranties or guarantees regarding the likelihood of success of, or the performance of any marketing or promotional activity undertaken as part of the Services.

8.4           The New Now Media will not be held liable for any services obtained by or provided to you by any third party provider, regardless of whether or not those services were obtained or provided in relation to the Services provided by The New Now Media.  

8.5           You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore provision of the Services may not be error-free or uninterrupted.

9.              INDEMNITY

9.1           You indemnify and hold harmless The New Now Media in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:

(a)            any breach of these Terms and Conditions;

(b)            your negligent acts or omissions;

(c)            your use of the Services, including any third party claims made in connection with or arising out of your use of the Services, other than use in accordance with these Terms and Conditions; and

(d)            your breach of third party Intellectual Property.

10.           CONFIDENTIALITY

10.1        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 the terms of these Terms and Conditions, or any details of Fees.  This obligation of confidence extends to Confidential Information obtained by a party before these Terms and Conditions were in force.  Each Party shall refrain from making negative comments about the other Party, whether online or in person.

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

11.           DISPUTE RESOLUTION

11.1        The parties agree to attempt in good faith to resolve any dispute regarding these Terms and Conditions through negotiation including negotiation with the assistance of an agreed mediator.

11.2        If the dispute or difference is not resolved to the satisfaction of the parties within 30 days, either party may request the matter to be heard by an arbitrator.

11.3        Arbitration shall be effected:

(a)            by an arbitrator agreed upon in writing by the parties; or

(b)            in the absence of such agreement, by an arbitrator appointed in accordance with the provisions of the law relating to arbitration in force in the State of Queensland; or

(c)            by an arbitrator appointed by the National President for the time being of the Institute of Arbitrators Australia.

11.4        The New Now Media may pause the provision of the Services to conduct whatever investigations deemed appropriate and, within 90 days of the given written notice, seek to resolve the dispute.

12.           GENERAL

12.1        Any notice provided under these Terms and Conditions must be in writing, addressed to the other party’s contact persons as notified by the other party.

12.2        These Terms and Conditions do not create a relationship of employment, agency or partnership between the parties.

12.3        The New Now Media may sub-contract its obligations under these Terms and Conditions.

12.4        The failure of a party at any time to insist on performance by the other party of an obligation under these Terms and Conditions is not a waiver of any of its rights.

12.5        If part or all of any of the provisions of these Terms and Conditions are illegal or unenforceable, it will be severed from these Terms and Conditions, and will not affect the continued operation of the remaining provisions.

12.6        The New Now Media may vary any term of these Terms and Conditions from time to time by written notice to you.  Any varied terms will apply to Services which that commences after the date that The New Now Media notifies you of the varied terms.  Your engagement of Services after that date signifies acceptance of the varied terms.

12.7        These Terms and Conditions are governed by the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.

12.8        These Terms and Conditions (including any quotes, annexures or schedules attached hereto) constitutes the entire agreement of the parties as to the subject matter and supersede and cancel all prior arrangements, understandings and negotiations in connection with it.  Any statement made in negotiations for these Terms and Conditions which is not set out in these Terms and Conditions do not form part of the agreement between the parties.