1. Application

These Master Services Terms & Conditions (“Agreement”) are between Seen Agency Pty Ltd (ACN 163 310 843) (“Seen Agency”) and you (“Client”) for the provision of Services described below.

The Agreement comprises: (a) these Master Services Terms & Conditions; (b) the Services description set out below and your Proposal document; and (c) Terms & Conditions relevant to each of your Services which are expressly incorporated herein (as the context permits). You acknowledge that you have read, understood and agreed to Terms & Conditions relevant to each of your Services, together with these Master Services Terms & Conditions, and agree to be bound by them. Seen Agency is only willing to supply Services on Terms & Conditions relevant to each Service and your continued receipt or use of the Services indicates your agreement to the Terms & Conditions relevant for each Service, together with these Master Services Terms & Conditions.

2. Precedence

2.1 The Agreement is structured so that individual Terms & Conditions relevant to each Service are further governed by and subject to this Master Services Terms & Conditions.

2.2 The Master Services Terms & Conditions takes precedence over the Terms & Conditions relevant to each Service. If there is any inconsistency between the provisions of the Master Services Terms & Conditions and the Terms & Conditions relevant to each Service, this Master Services Terms & Conditions will prevail to the extent of any inconsistency.

3. Definitions

Client: refers to the party or any person acting on behalf of and with authority of the Client that the Services are provided to. You and Client shall have the same meaning in this agreement.

Each Service: refers to individual scopes of work proposed or delivered as part of the Services.

IP: abbreviation of Intellectual Property

Materials: content provided to Seen Agency by you from time to time for incorporation in the works including copy writing and images.

New services: refers to agreed variations and/or extensions of the Services.

Services: includes but is not limited to brand creation services, graphic design, advertising services, marketing services, media buying, app design, website design, photography, and production of video recordings in accordance with the respective Proposal document.

Site: the website to be designed and developed in accordance with this Agreement, the URL of which is set out in your Proposal document (where applicable).

Site Software: software for the Site commissioned by you independently of Seen Agency (where applicable).

4. Variations and Cancellations

4.1 You may vary Services by notifying Seen Agency in writing. Your new Service will take effect from the date Seen Agency commences provision of the new Services in accordance with your new Service Proposal document, or as otherwise agreed in writing by Seen Agency. Your next invoice will reflect: (a) Charges applicable to your new Service from the date of the notice; (b) Charges for any remaining invoice period for your previous Service(s) (whether or not such Service(s) are utilised during such remaining invoice period); (c) Charges for amounts then due but unbilled for your previous Service(s); and (d) Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of Seen Agency at the time. Any amounts or deposits already paid by you for a changed, cancelled or discontinued Service shall not be refunded in any circumstances.

4.2 Seen Agency may change these Master Services Terms & Conditions, the Services or the Terms & Conditions relevant to each Service, by giving you written notice (whether by email, fax or post to your designated email address, fax number or postal address, notified by you to Seen Agency as part of your registration process). Where a change relates to an increase in Charges, Seen Agency shall provide you with 30 days’ prior written notice.

5. Term

This Agreement commences on date Seen Agency confirms to you that Service has been activated or such other date as agreed by us in writing (“Commencement Date”) and continues until terminated in accordance with the terms contained herein.

6. Charges & Payment

6.1 The Charges payable for each Service, whether recurring or not, are set out in your Proposal document. The Charges shall be payable in Australian dollars within 7 days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Seen Agency. All deposits or advanced payments are non-refundable.

6.2 You remain committed to pay us for all Charges for Services for their full invoicing periods (as selected in your Proposal document), irrespective of whether: (a) this Agreement (or any Terms & Conditions) have been suspended or terminated during such invoicing period, or (b) such Services have been changed or cancelled during such invoicing period.

6.3 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST. If GST becomes payable on any supply made or provided, on which GST is not payable at the date of this Agreement, you will pay Seen Agency an additional amount equal to value of consideration for the supply multiplied by the prevailing GST rate.

6.4 Seen Agency may set off any amounts due and payable under this Agreement against amounts that may be payable by Seen Agency to you.

6.5 Seen Agency reserves right to charge interest on overdue amounts at annual rate of 2% over Reserve Bank of Australia base rate ruling on due date, in addition to a standard $50 administration fee for each month an overdue amount remains.

6.6 Seen Agency may by notice to you suspend work, and your use of and access to Services (including public access to your web content and delivery of email), until outstanding invoice(s) and interest have been paid in full. Charges shall continue to accrue during such period of suspension. Time for payment shall be of the essence.

6.7 Invoices may only be disputed by you by providing Seen Agency with written details of the dispute within fourteen (14) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.

6.8 Additional charges shall be payable for out-of-scope work, that is work not otherwise expressly set out in your Proposal document (including, without limitation, work in relation to extra design concepts or revisions, extra project management and support hours).

7. Termination

7.1 Seen Agency may terminate or suspend this Agreement (without any liability):

(a) at any time by giving you at least 30 days’ notice;

(b) immediately on giving notice to you, if you breach, including failure to pay the Charges; or

(c) you become insolvent within the meaning of Corporations Act, are otherwise unable to pay your debts when due or you cease to carry on business.

7.2 Seen Agency may also suspend or terminate particular Services in accordance with Terms & Conditions relevant to such Service (without any liability) and should it elect to reinstate such suspended Service you shall be responsible for Seen Agency’s standard re-activation charge of $50. Termination of individual Terms & Conditions relevant to a Service shall not affect the continuation of this Master Services Terms & Conditions or any other individual Terms & Conditions relevant to other Services, then in force.

7.3 On termination or expiration of this Agreement, or any Terms & Conditions relevant to a Service: (a) Seen Agency shall invoice you for all amounts then due but unbilled and it may delete all data, materials, content, configuration and settings in connection with your Services, whether on a Seen Agency storage media or otherwise. It is your obligation to ensure you have retained back-up copies. (b) Any amounts or deposits already paid by you shall not be refunded in any circumstances. (c) The license in clause 12.2 and the right to access in clause 12.3 shall automatically come to an end.

8. Liability

8.1 Services shall be provided without any guarantees, conditions or warranties as to its accuracy, completeness, reliability, suitability or currency of Services and they are provided on an “as is where is” basis. Seen Agency does not warrant that the Services will be uninterrupted or error free, will meet your requirements, nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.

8.2 To extent permitted by law, Seen Agency, its directors and employees hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity; and (b) any liability for any direct, indirect or consequential loss or damage incurred by you or any end user in connection with Services, or use of Services, including, without limitation any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings; loss of data; loss of goodwill; wasted management; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.

8.3 This does not affect liability of Seen Agency which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, Seen Agency’s liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.

8.4 Without limiting foregoing, you agree that in no event shall Seen Agency’s maximum aggregate liability exceed AUD$10,000.00.

8.5 You shall indemnify Seen Agency, its directors, employees and representatives from and against all actions, claims, suits, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of materials by you, use of Services by you or anyone else, or otherwise arising as a result of this Agreement.

8.6 Each of the Terms & Conditions relevant to a Service may contain specific provision in relation to your liability for each Service (including warranties and representations made by you). You acknowledge that you have read and understood each of the Terms & Conditions relevant to your Service and agree to be bound by them.

8.7 You shall ensure that Materials do not infringe any applicable laws, regulations, industry codes or third party rights (such as material which is obscene, indecent, pornographic, offensive, defamatory, threatening, liable to incite racial hatred or in breach of any third party intellectual property rights) (“Inappropriate Content”).

8.8 You acknowledge that Seen Agency has no control over any content or links placed on Site by you or anyone else and does not purport to monitor content of the Site. Without limiting the foregoing, Seen Agency reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Notwithstanding, Seen Agency shall not be deemed to have any control over the Site or its contents.

8.9 You shall indemnify Seen Agency against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.

9. Notices

9.1 All notices given by Seen Agency may be given by email to email address notified by you to Seen Agency as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that the record of Seen Agency having sent a notice to you by email is, of itself, conclusive proof of receipt.

9.2 Notices given by you must be delivered to Seen Agency in writing and addressed to: 67 Queen Street, Warragul, Victoria, 3820, Australia (with a copy by email to hello@seenagency.com.au).

10. Force Majeure

10.1 Seen Agency shall not be responsible for any delay, suspension or failure arising out of any circumstances outside of its reasonable control, including but not limited to, acts of God, governmental actions, labour difficulty, war or national emergency, terrorism, fire, explosion, flood, an act or omission of a third party, inability to obtain any materials, equipment, facilities or services, failure of performance provided by others, internet interruption or virus, breakdown software, hardware or communication network.

10.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

11. Non-solicitation

You shall not, during duration of this Agreement, and for a period of one (1) year thereafter, hire, engage, solicit, employ or contract the services of any of the employees or contractors of Seen Agency or others involved in the provision of Services.

12. Intellectual Property & Confidentiality

12.1 Seen Agency retains copyright and all other intellectual property rights in: (a) all programming modules, code, computer programmes, material, tools, drawings, documents, presentations, specifications, data, designs, registered and unregistered trade marks, know-how and anything else generated, whether as improvements or otherwise, in course of providing (directly or indirectly) the Services; and (b) all intellectual property rights existing prior to the commencement of such Services (“Seen Agency IP”). Unless agreed otherwise in writing, Seen Agency shall be entitled to claim authorship for any work which it is responsible.

12.2 Seen Agency licenses to you the right to access the Seen Agency IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Services for the duration of the Agreement or the duration of the Terms & Conditions relevant to a Service (as the case may be).

12.3 You acknowledge that Services may include individual third party software or third party intellectual property rights (including, with limitation, content management system and open source software) (“Third Party IP”) and the licence in clause 12.2 and your rights to use Services is without prejudice to the Third Party IP. Any rights you may have to access Third Party IP shall be limited to extent of Seen Agency’s right to access same and its ability to pass on such rights to you.

12.4 In relation to license (clause 12.2) and right to access (clause 12.3): (a) they will both automatically terminate if Agreement, or Terms & Conditions relevant to a Service, comes to an end; and (b) they do not include right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble wholly or partly. 12.4a Subject to clauses 12.2, 12.3 and 12.4, and following receipt by Seen Agency of all relevant outstanding Charges, you shall own all copyright in any graphic design or visual aesthetics created by Seen Agency specifically and solely for you in accordance with this Agreement and the relevant Proposal document.

12.5 In relation to any data, content, information or material provided by you to us, you warrant that same will not infringe the rights of any third party nor contravene any law or industry code. You additionally agree to carry out your own due-diligence in respect to potential IP infringement of third parties at all stages of delivery of the Services and agree to indemnify Seen Agency against any liability arising.

12.6 Save as required by law, you shall not disclose any confidential information relating to Seen Agency or its affiliates which you obtain during or arising out of this Agreement, to anyone (except your employees on an as need basis). You shall procure that anyone else receiving benefit of Services, whether your employees or otherwise, comply with terms of this clause as if they were a party to this Agreement.

13. Promotion

You agree to Seen Agency promoting designs resulting from work produced for you including providing a hyperlink to the Seen Agency website. Statements may include “[Service] made by Seen Agency” or “[Service] built by Seen Agency”.

14. Entire Agreement

This Agreement, and the documents referred to herein, contains the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to Services including, but not limited to, those relating to performance or results that ought be expected from using Services. Any representations (oral or written) given by, or on behalf of, Seen Agency shall not be relied upon. Notwithstanding, you shall also be bound by any policies or guidelines of Seen Agency, currently situated here https://www.seenagency.com.au/terms-and-conditions, as updated by Seen Agency from time to time.

15. Governing Law

This Agreement (and each Terms & Conditions relevant to a Service) and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of Victoria, Australia and parties submit to the exclusive jurisdiction of that State.

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