The Contented Copywriter Pty Ltd is now trading as Wonderthink Pty Ltd.
Terms of Business
WONDERTHINK
BUSINESS TERMS AND CONDITIONS
These Terms and Conditions (the ‘Terms’) are read in conjunction with the Quote provided to You at the time of providing these Terms (the ‘Quote’).
RECITALS
A. Wonderthink offers strategic consulting services and content creation for website, blog, SEO, white papers, eDMs or brochures, marketing services, design and research projects tailored to client’s needs and requirements (the ‘Services’). You have engaged Wonderthink to provide the Services.
B. By continuing to work with Wonderthink after receiving these Terms, You accept the Terms and agree to the below.
1. Parties
You are the Client, and Your details are set out in the Quote.
– AND –
The Contented Copywriter Pty Ltd ACN 646 358 974 trading as Wonderthink Pty Ltd of PO Box 232 Rozelle NSW 2039 (‘Wonderthink’).
2. Definitions and interpretation
2.1. Definitions
The following words have these meanings in this Agreement unless the contrary intention appears:
Agreement means this Agreement including any attachment, including the Quote.
Business Day means any day excluding Saturday, Sunday, or a public holiday in New South Wales.
Commencement Date means the date the Services will commence as specified in the Quote.
Completion Date means the date the Services will cease, and the Services will be delivered, as specified in the Quote.
Confidential Information means any information that is:
(a) information, ideas forms, specifications, processes, statements, formulae, trade secrets, drawings, designs (and copies and extracts made of or from that information and data) that is not in public domain; and
(b) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information.
eDMs means electronic direct mail;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by You or Wonderthink in the provision of the Services;
Services means the services specified in the Quote or as agreed between the Parties from time to time.
SEO means search engine optimization;
Term means the length of time between the Commencement Date and Completion Date, or for retainer clients, the length of the Agreement as outlined in the Quote.
3. The Engagement
3.1. Commencement and Completion of the Services
(a) Wonderthink agrees to perform the Services for You, for the Fees and the Term set out in the Quote, commencing on the Commencement Date.
(b) If Wonderthink foresees being unable to complete the Services by the Completion Date, Wonderthink will inform You at Your email address as soon as practicable prior to the Completion Date, and alternative arrangements will be made by agreement of the Parties.
(c) Wonderthink will only provide You with a refund of the Fee in the event that Wonderthink becomes unable to continue to provide the Services (the ‘Refund’).
(d) If Wonderthink is required to alter the description of the Services, the parties must agree in writing.
(e) If the Quote specifies a retainer agreement, the Term will automatically rollover to an ongoing retainer beyond the initial 12 month term. Rates will be reviewed and agreed upon by both Parties, if required.
3.2. Delays
(a) Wonderthink shall use all reasonable endeavours to meet the Completion Date specified in the Quote but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services.
(b) Wonderthink is not liable for any delays or costs resulting from the actions of third parties, including printing services, on which the Services are reliant on.
(c) All revisions, feedback and sign-offs must be provided by You within 7 Business Days of receiving a first draft of the Services. If one round of revisions was included in the Quote, You have 1 month from the date of receiving the first draft of the Services to provide feedback, otherwise Wonderthink will assume the draft has been approved and issue an Invoice for the remainder of the Fees owing.
(d) Where you require further revisions all further feedback and signoff must be provided by you within 7 Business Days of receiving the revised draft version of the Services.
(e) Wonderthink shall not be liable for delays due to a force majeure event as per clause 9.
3.3. Approvals and Sign-Off and Client Communication
(a) Wonderthink agrees to obtain Your approval as outlined in the Quote.
(b) All Service Fees include 1 round of revisions by You as outlined in the Quote, unless otherwise stated in writing. Additional Revisions or Corrections (beyond the 1 round included) will incur an additional fee payable by You charged at the rate of $240.00 + GST per hour.
(c) All revisions, feedback and sign-offs must be provided by You within 7 Business Days of receiving a first draft version of the Services in a concise and clear manner. Where you require revisions all further revision, feedback and signoff must be provided by you within 7 Business Days of receiving the revised draft version of the Services. Where possible, You agree to use the comment function of Adobe PDF, Google Docs or Google Drive when commenting as opposed to handwritten mark-ups.
(d) All revisions and feedback must be provided by You in a single email, and You agree to include all comments in a single email. Each separate email received in respect of revisions and feedback will be treated as a separate round of revisions.
(e) Once You have given final approval no further changes will be made by Wonderthink and Wonderthink is not responsible for any content, spelling, grammatical, errors or omissions.
(f) It is Your sole responsibility to ensure that Wonderthink receives any instructions, approvals, sign-off or any other form of communication from You. Wonderthink will not be liable for any instructions not received due to technology glitches, communication arriving into a spam folder, or any other reason.
(g) Wonderthink endeavours to return your communication within 7 business days, and asks that You follow-up with a phone call if You are unsure of whether your communication has been received.
3.4. Alterations to the Services
(a) If Wonderthink is required to alter the description of the Services, including any variations to the original brief, Wonderthink must first obtain written consent from You.
(h) You agree that any such variations may result in additional costs incurred and added to the final invoice and will be discussed and approved by You prior to the completion of the work.
4. Wonderthink Obligations
(a) Prior to the Commencement Date, Wonderthink must provide You with written notice requesting all necessary information, documents or data reasonably required by Wonderthink to complete the Services (‘Client Content’). If no written notice is provided, it is implied all relevant information and materials have been supplied.
(b) Throughout the Term, Wonderthink agrees:
i. to perform the Services with due care and skill with knowledge of best industry practices and procedures necessary to undertake the Services;
ii. to regularly update You or Your nominated contact of progress with the Services;
iii. to inform You of any changes in the Services or any potential issues, real or reasonably anticipated, with the Services;
iv. to ensure that the provision of the Services by Wonderthink will not infringe the rights (including Intellectual Property Rights) of any third party; and
v. to not do anything or omit to do anything which may adversely affect Your business or brand or Your reputation; and
vi. If requested, to provide You with a detailed account of Services rendered.
(c) Wonderthink has the right to make any changes to the Services which are necessary to comply with any applicable law.
5. Your Obligations
(a) You agree to provide all necessary Client Content within 2 working days of a written request for the Client Content by Wonderthink to facilitate the execution the Services in accordance with any estimated delivery dates. This includes, but is not limited to:
(i) any previous copy in an editable format (not PDF);
(ii) information requested by Wonderthink to be able to provide the Services;
(iii) branding guidelines;
(iv) logos;
(v) testimonials;
(vi) website theme;
(vii) materials.
(b) You agree that Wonderthink may charge additional delay fees if Client Content is sent in the incorrect format or delayed.
(c) You warrant that the Client Content:
i. is owned by You;
ii. does not infringe the rights (including Intellectual Property Rights) of any third party;
iii. contains information that is not misleading or deceptive, or likely to mislead or deceive;
iv. is accurate and free of viruses and security risks;
v. is lawful and does not contain any material that is abusive, defamatory, harmful, hateful or encourages conduct which could constitute an offence, criminal or civil under applicable State or Federal Legislation.
(d) You indemnify Wonderthink against all damages, losses and expenses suffered or incurred by Wonderthink as a result of the Client Content being in contravention of State or Federal Legislation, or any action where such Client Content infringes any intellectual property rights (including copyright) of a third party.
(e) You agree that You shall have and will continue, throughout the Term, to have all licences, authorisations, consents, approvals and permits required by all applicable Laws in order to perform Your obligations under this Agreement, and otherwise comply and will continue to comply with all Laws applicable to the performance of those obligations.
6. Payment for the Services
6.1. Fees
(a) You agree to pay Wonderthink the Fees set out in the Quote.
(b) You agree that all quoted Fees are an estimate only. If the estimate of hours required has been exceeded in order to provide You with the Services, Wonderthink will always provide a revised Quote for additional work.
(c) The Fees payable to Wonderthink to perform the Services may be adjusted from time to time as agreed by the Parties in writing (including email) on account of changes in relation to the nature of the Services to be Performed by Wonderthink.
(d) Deposits and payments are payable as follows:
i. For Services with Fees totalling less than $2000.00 + GST, Wonderthink will issue an Invoice for the total Fees upon approval by You of the Quote. Full payment of the Fees is required by the due date of the Invoice.
ii. For Services with Fees totalling greater than $2000.00 + GST, Wonderthink will issue an Invoice for a 50% deposit of the Fees upon approval by You of the Quote. Payment of the 50% deposit is required by the due date of the Invoice and is non refundable. Wonderthink will issue an Invoice for the remainder of the Fees upon completion of the Services, or after the delivery of the first draft of the Services, whichever comes first. Payment of the remainder of the Fees is required by the due date of the Invoice.
iii. iii. For Services agreed under a Retainer basis, invoices will be on a monthly basis, invoiced 30 days in advance.
iv. A 25% loading will be charged for Services that require a turnaround in under 3 days.
v. v. A 5% Credit Card fee will be applied only if you request to make payment by Credit Card.
6.2. Time and Method for Payment
(a) You agree to make Payment of the Fees upon receipt of Invoices by Wonderthink, and by the due date on each Invoice. You agree to make Payment of the Fees by the method prescribed in each Invoice.
(b) In the event that any payment under this Agreement is not made in full on the due date, Wonderthink is entitled to charge You interest at the rate of 8% per annum, calculated daily.
6.3. Goods and Services Tax
Unless otherwise stated, all amounts expressed and described on or in connection with this Agreement and the Quote are listed in Australian Dollars (AUD) and are GST exclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
7. Copyright and Intellectual Property Rights
7.1. Intellectual Property Rights
(a) Wonderthink warrants that it transfers to You the Intellectual Property Rights in the Intellectual Property delivered to You in the provision of the Services.
(b) You grant to Wonderthink a non-exclusive, irrevocable, transferable, royalty-free, perpetual licence to use the Intellectual Property in the Services at any time, for inclusion on its website, blog, portfolio, galleries or for marketing and promotional purposes, at its complete discretion.
7.2. Indemnification
You hereby indemnify and agree to keep Wonderthink indemnified against all liability, losses or expenses suffered by Wonderthink in relation to or in any way directly or indirectly connected with any breach of copyright by You.
8. Termination of this Agreement
8.1. For Wonderthink
(a) Wonderthink may terminate the Engagement with You for any breach of these terms and conditions by providing 7 days’ written notice to You by email.
(b) If Wonderthink is engaged upon a retainer basis, Wonderthink must give 30 days written notice of an intention to terminate the Services.
(c) If Wonderthink terminates the Engagement You will pay Wonderthink for the portion of the Services completed up to the date and time of termination.
8.2. For You
(a) You must give Wonderthink 30 days written notice of an intention to terminate the Services.
(b) If You provide notice of your intention to terminate the Services, You will forfeit the non refundable 50% deposit paid by You and You will be required to pay a cancellation fee equivalent to 50% of any remaining Fees owing at the termination date and pay for all Services performed, and expenses incurred, up to and including the termination date.
(c) If You provide notice of your intention to terminate the Services and Wonderthink is engaged on a Retainer basis, You will pay any remaining Fees owing at the termination date and pay for all Services performed, and expenses incurred, up to and including the termination date.
9. Force Majeure
(a) If circumstances beyond Wonderthink’s control prevent or hinder its provision of the Services, Wonderthink is free from any obligation to provide the Services while those circumstances continue. Wonderthink may elect to terminate this Agreement or keep the Agreement remaining current until such circumstances have ceased.
(b) Circumstances beyond Wonderthink’s control include, but are not limited to, shortage of labour, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, failures or malfunctions of computers or other information technology systems.
(c) For the sake of clarity, if in Wonderthink’s reasonable opinion, the provision of the Services will be affected by the covid-19 Pandemic, Wonderthink may suspend the provision of the Services in part or in whole to You indefinitely. Additionally, Wonderthink will not be liable for any losses or damage due to the covid-19 Pandemic. If You choose to terminate an agreement due to the covid-19 Pandemic, clause 8.2 will apply.
10. Liability and waivers
10.1. Liability
(a) Your total liability to Wonderthink for damage, loss or reliance shall be limited to any outstanding payments (if any) for Services completed by Wonderthink and not paid by You.
(b) Wonderthink’s total liability arising out of or in connection with the Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed Wonderthink’s resupply of the Services to the You.
(c) You expressly understand and agree that Wonderthink and its Personnel shall not be liable to You for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by Wonderthink, however caused and under any theory of liability; including, but not limited to: any loss of profit (incurred directly or indirectly), any loss of goodwill or business reputation, death or personal injury and any other intangible loss.
10.2. Colour Accuracy and Spelling/Grammar
You agree that Wonderthink is not responsible for any spelling, grammatical, errors or omissions after final approval.
10.3. Waivers
(a) A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
(b) The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement does not amount to a waiver.
11. General matters
11.1. Communication between Parties
The parties agree to communicate via e-mail and telephone.
11.2. Disclosure and Use of Confidential Information
(a) All obligations of confidence set out in this Agreement continue in full force and effect after the Completion Date.
(b) Wonderthink must not disclose any Confidential Information to any third party, including the customer and/or its agents, employees or servants, without Your prior consent.
(c) Wonderthink must not use any Confidential Information without Your prior consent.
(d) This Agreement prohibits the disclosure of Confidential Information by Wonderthink with exception to the following circumstances:
i. the disclosure is to a professional adviser for it to provide advice in relation to matters arising under or in connection with this Agreement and You have consented to the disclosure of such information to the professional adviser;
ii. the disclosure is required by applicable law or regulation; or
iii. if the confidential information is already in the public domain at no fault of Wonderthink.
12. Marketing
You agree that any testimonials that may be provided by You from time to time may be used by Wonderthink for marketing purposes. You further agree that Wonderthink may utilise Your business logo and business name for promotional or educational purposes.
13. No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
14. Governing Law & Jurisdiction
(a) This Agreement is governed by the laws of New South Wales, Australia.
(b) In the event of any dispute arising out of or in relation to the Services, Wonderthink agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in New South Wales, Australia.
15. Dispute Resolution & Mediation
(a) If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) A party to this Agreement claiming a dispute (the ‘Dispute’) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the ‘Notice’).
(c) On receipt of the Notice by the other party, the parties to this Agreement (the ‘Parties’) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(d) If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by You or Your nominee and attend a mediation.
(e) It is agreed that mediation will be held in New South Wales, Australia.
(f) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(g) All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
(h) If thirty 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
16. Severance
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
17. Assignment
Wonderthink agrees for You to delegate, assign, novate and/or subcontract any obligations pursuant to this Agreement to any person without Wonderthink’s consent.
18. Entire Agreement and Modifications
Both You and Wonderthink confirm and acknowledge that:
a) This Agreement shall constitute the entire agreement between You and Wonderthink and shall supersede and override all previous communications, either oral or written, between the parties;
b) No agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
c) If for whatever reason there is inconsistency between this Agreement and any other agreement, this Agreement shall prevail.