MOONING TERMS & CONDITIONS

SECTION 1 GENERAL TERMS

These terms and conditions apply in respect of all work undertaken by Mooning Agency Pty Ltd (ACN 656 190 608) (hereinafter referred to as “Mooning”). By engaging Mooning with their business, the clients will be accepting the following terms and conditions. These Terms and Conditions are subject to change without notice and may be superseded. Mooning may modify these Terms and Conditions by general notice on a page of our website, by email or by any other method of communication.

1. Definitions

“Agreement” means these general terms and conditions herewith.

“Client” means the person and/or business described as the client in the Agreement.

“Company” means Mooning.

“Confidential Information of a Party (the Owner)” means all information of or relation to the Owner (or any Related Body Corporate of the Owner) that is disclosed by the Owner (or its Personnel or representatives) to the other Party (the Recipient), or is otherwise learned by the Recipient, whether on, before or after the date of this Agreement, relating to: 

      • the business, property or operations of the Owner or any Related Body Corporate of the Owner;
      • any of the Owner’s (or its Related Corporations’) plans or strategies;
      • Intellectual Property (and including Intellectual Property); or
      • the development, marketing or promotion of any of the Owner’s (or any of its Related Corporations’) products or services, whether disclosed verbally, in writing, in electronic form or by any other means and includes information disclosed by or concerning a Related Body Corporate of the Owner but excludes information that:
        • is or becomes freely available to the public unless as a result of a breach of this Agreement;
        • is disclosed without restriction to the Recipient by a third person, whom the Recipient knows has a legal entitlement to possess and disclose the information without obligation of confidentiality; or
        • the Recipient proves it knew before the Owner (or its Personnel) disclosed information to the Recipient.

“Fees” means the Price together with any Additional Charges incurred by you relating in any way to this Agreement and the Services.

“Intellectual Property” includes but is not limited to, legally protectable product or process of the human intellect, patents, trade marks, copyrights, moral rights, designs, ideas, know-how or otherwise such as an invention, expression or literary creation, photograph, unique name, trade secret, business method, database, industrial process, presentation including any improvements and other Confidential Information, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registrations.

“Intellectual Property Rights” means rights, benefits, title or interest in or to any Intellectual Property anywhere in the world (whether registered or unregistered and including all applications for the same).

“Law” includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law of the State or otherwise in the places where the Services are being provided.

“Loss” means all claims, losses, damages, costs and expenses sustained or incurred (including legal costs and disbursement on a full indemnity basis), whether directly or indirectly or consequentially or in any other way.

“Monthly Fee” (derived from context, not explicitly defined) refers to the recurring payment made by the Client to the Company for the Services.

“Party” means a party to this Agreement.

“Price” means the fees outlined in the Agreement.

“Services” means the services described in the Contract.

“Term” (derived from context, not explicitly defined) refers to the duration of the Agreement.

“You” and “Your” means the Client named in the Agreement.

“Our”, “Us”, “Mooning” and “We” means the “Company” Mooning Agency Pty Ltd (ACN 656 190 608).

 

2. The Client agrees that this agreement shall continue for the “term” from the date of this agreement. Once the “term” is reached, the campaign will continue to roll on until the client provides the company 30 days’ written notice. In the event that the Client terminates the Company’s services within the “term” from the date of this agreement, the Client agrees that they shall be liable for and pay the Monthly Fee for the balance remaining of the “term”.

3. The Client shall give feedback within the timeframe as stated in the timeline provided by the Company to avoid delays. The Company reserves the right to terminate the agreement in any of the following circumstances:

    1. the Client does not contact / respond to requests by email or telephone within ten (10) working days.
    2. the Client’s instructions deviate from this agreement and/or the Client refuses to pay any additional fees if required to do so for any additional work required.
    3. the Client fails to provide content, and/or any additional information requested by the Company within the reasonable deadlines stated.
    4. the Client has more than 1 outstanding invoice in the balance.

4. In the event of any of the above stated occurrences, the Company may terminate the agreement in writing. Should the Company proceed with a termination, the Client is responsible for the remaining balance to be fulfilled in the Agreement.

5. The Client acknowledges that the Company makes no warranty that our service will guarantee any increase in traffic, sales, business activity, profits or any other form of improvement for the Client’s business or any other purpose. The Client shall indemnify the Company for any damages or losses arising from or as a consequence of the provision of the Services.

6. The Client warrants to the Company that it shall indemnify the Company for any breach(es) of personal data privacy claims.

7. The Monthly Fee may be made by the Client to the Company by bank transfer, cheque or online direct debit via our secure online payment portal. The Company shall commence to provide the Services herein to the Client upon receipt of the Client’s first payment and thereafter the Client shall settle the Monthly Fees within 7 days upon receipt of ongoing invoices issued by the Company. The Company reserves the right to assess and collect late-payment charges of 5% per month on any outstanding balances of the Monthly Fee(s).

8. There are no refunds available on services provided by the Company once payment is affected by the Client. There is also no credit transferred unless the Company agrees. There is also no credit transferred unless the Company agrees.

9. The Client acknowledges that the Company will allocate time and resources at the Company’s discretion, up to the total equivalent hours as per the signed contract. The Client acknowledges the allocation of budget per Service in the contract therefore may be reallocated to other Service lines during delivery.

10. Any agreement to engage the Services of the Company is made in accordance with Australian laws and regulations. The Services are considered entered into under the jurisdiction of the State of Victoria, Australia. If any dispute arises between the Company and the Client, both parties irrevocably submit to the jurisdiction of the courts of the State of Victoria, Australia.

11. The Client shall not offer any form of employment to the Company’s current and past staff whilst using the Company’s services, or within 12 months of ceasing the Company’s services at any time during the Term hereof to the expiry of twelve (12) months after the date of termination of this Agreement (as the case may be) employ or attempt to employ any person who is, or shall at any time between the date hereof and the date of such termination be, one of the Company’s employees engaged in providing the Services.

SECTION 2 – WEB3/NFT/METAVERSE/BLOCKCHAIN SERVICES

The following terms relate to the supply of Web3/NFT/Metaverse/Blockchain services (“the Services”) by the Company to the Client.

  1. The Company agrees to provide the Client with the Services and is authorised by the Client to undertake the relevant activities to ensure they can deliver the agreed to Services.
  2. The client acknowledges and agrees that:
    1. If the Services provided are delayed and are not as a result of any fault(s) on the part of the Company, no refund or compensation will be offered to the Client.
  3. For any consulting projects undertaken by the Company, you agree as follows:
    1. The Company shall use reasonable endeavours to complete the Services by the Completion Date or any other dates agreed by the Parties.
    2. The Services shall be performed by such employees or agents that The Company may choose as most appropriate to carry out the Services.
  4. NFTs projects undertaken by the Company you agree as follows:
    1. There is no guarantee NFTs will have or retain any value;
    2. The Company will not be responsible for any of the risks associated with using Internet-native assets;
    3. The Company does not make any guarantees about the availability of the Asset on the Internet;
    4. The Company will not be responsible for any upgrades made to the blockchain that the Asset and NFT is recorded on that might affect the Asset or NFT in any way;
    5. The Company is not responsible for any secondary market transactions that occur for any NFT projects.

 

SECTION 3 – PERFORMANCE AND STANDARD OF SERVICES

Performance

Mooning must:

  • provide the Services to You in good faith, to the best of its skill and ability; devote its best efforts and attention to the performance of the Services; and
  • carry out the Services in a timely and professional manner.

Standard

We undertake to You that We:

  • are skilled and competent to provide the Services;
  • are in possession of all technical information, know how, equipment and materials necessary to provide the Services;
  • will perform the Services in accordance with any reasonable direction We receive from You or Your designate; and
  • will perform the Services in accordance with the Law.

Subcontracting

Mooning may subcontract any of the Services to any third party contractors it deems fit, provided that it remains responsible and liable for the provision of the Services to You on the terms of this Agreement.

SECTION 4 – INDEMNITY AND LIABILITY

  1. To the extent permitted by law, You must indemnify and hold Us and our Associates harmless against all Loss arising directly or indirectly in connection with any breach by You of this Agreement, or Our performance of the Services for You in accordance with the terms of this Agreement.
  2. Your liability to indemnify Us and Our Associates will be reduced proportionally to the extent that any negligent or unlawful act or omission by Us or Our Associates contributes to any Loss that We suffer.
  3. You must not make any claims relating to the Services unless We receive sufficient written notification of the facts relating to such claims as soon as You become aware of those facts. Such written notification must be adequately documented to Our reasonable satisfaction.  Any action by You for breach of this Agreement must be commenced within one (1) year of the last date of Our provision of the Services to You under this Agreement.
  4. Mooning does not provide any warranty to You about the standard or performance of the Services (other than as may be expressly provided in this Agreement) and excludes all liability for any Loss arising from or related in any way to this Agreement. Certain provisions of the Competition and Consumer Act 2010 (Cth) or any applicable State, Territory or Commonwealth legislation may imply warranties, confer statutory guarantees or impose other obligations on Mooning which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, Mooning’s liability under any such provisions shall be limited at Mooning’s option to:
  • re-provide the Services to You;
  • refund the Remuneration it has received from You for the affected Services; and/ or
  • payment to You of an amount equal to the cost of replacing any affected Services.

SECTION 5 – INSURANCE

  1. The Parties must each take out and maintain appropriate insurance policies necessary to cover any liability under this Agreement for the performance of the Services. If requested by a Party, the other Party must provide details of the insurance (including, without being limited thereto, a copy of the insurance certificate) and evidence of currency.

SECTION 6 – SUSPENSION AND TERMINATION

Termination for Default

  1. Either Party may terminate this Agreement immediately by written notice to the other Party if that other Party has breached this Agreement and has failed to remedy that breach within thirty (30) days after receiving written notice from the non-breaching Party requiring the breach to be remedied.
  2. Either Party may terminate this Agreement immediately at any time by giving the other Party written notice to that effect, if the other Party becomes insolvent or unable to pay its debts as they fall due, enters into a composition or arrangement with its creditors, commences winding-up (whether compulsorily or voluntarily), goes into administration or liquidation or becomes bankrupt, or is placed in the control of a receiver or trustee (whether compulsorily or voluntarily), or any similar such event.

Suspension or Termination by Mooning

  1. We may suspend or terminate the performance of its obligations under this Agreement immediately upon written notice to You if:
  • Any of Our invoice(s) to You remain outstanding seven (7) days after their due date; or
  • We have previously provided You with at least thirty (30) days’ written notice that We wish to terminate this Agreement.

Early Exit

  1. If you would like to terminate the contract prior to the conclusion of the Term, you can do so by paying 50% of the remaining amount on your contract. Fees will be pro-rated to the early exit date as determined by Us. These will need to be paid in addition to the early exit fee. Notice period for termination is 30 days.

Termination Notice Period

  1. Once the Initial Term is completed, if no renewal period has been agreed to, the contract will continue on a month to month basis. To terminate the contract, either party must give 30 days notice.

SECTION 6 – INTELLECTUAL PROPERTY

  1. The Intellectual Property You have engaged Us to create (e.g. imagery, graphic, videography and written works) will be owned by You and Mooning.
  2. You acknowledge that any Intellectual Property created or developed while undertaking the Services for you (e.g. processes that have been developed to execute content for you), vests in and is owned entirely by Mooning on a worldwide basis. Unless otherwise expressly agreed in writing, this Agreement does not assign, transfer, novate, set over or create those Intellectual Property Rights to You.
  3. You must do all reasonable acts and things to protect Mooning’s Intellectual Property Rights, including acknowledging or assigning any such rights to Mooning or as directed by Mooning, and You must not challenge Mooning’s ownership of any such Intellectual Property in any way.

SECTION 7 – CONFIDENTIALITY

Acknowledgement

  1. Each Party acknowledges that all Confidential Information belonging to the other Party, whether in existence as at the date of this Agreement or at any later time, is and will remain the exclusive property of the other Party.

Use of Confidential Information

  1. Each Party must only use Confidential Information belonging to the other Party for the purposes of this Agreement.

Maintaining Confidential Information

  1. Each Party must (and must procure its employees and Associates to) carefully guard and keep confidential all the Confidential Information belonging to the other Party in its (or their) possession at all times during the Term and after the expiration or other termination of this Agreement and under no circumstances will a Party or its employees:
  2. Disclose at any time whether during the Term or at any time after the expiration or other termination of this Agreement any of the Confidential Information belonging to the other Party to any other person (except as authorised by the other Party in writing);
  • leave any Confidential Information belonging to the other Party in any other person’s hands for any period of time;
  • otherwise disclose any Confidential Information belonging to the other Party to any person except pursuant to written instructions from the other Party; or
  • make or allow the making of any copy in any material form that contains any Confidential Information belonging to the other Party.

General Exceptions

  1. Nothing in the Confidentiality clause requires either Party to observe and submit to the provisions of the Confidentiality clause in relation to any information which:
  • the Party can provide has been part of the common knowledge and within the public domain prior to the disclosure to the Party by the other Party;
  • the Party can provide has become part of the public domain by publication or by any other means except any unauthorised act or omission on the part of the Party; or
  • has been supplied to the Party without restriction by a third party who is under no obligation express, implied or inferred to maintain such information in confidence.

Disclosure required by law

  1. Nothing in the Confidentiality clause prevents either Party from disclosing Confidential Information belonging to the other Party as required by law, subject to the disclosing Party notifying the other Party immediately if it becomes aware that such a disclosure may be required.

The terms of this Agreement are confidential

  1. Each Party must not, and must procure that none of its Representatives, disclosure the terms and conditions of this Agreement to any person (except to legal, financial or business advisers for the purpose of seeking advice relating to this Agreement) without the other Party’s prior written consent.

Notice of Breach

  1. Each Party must immediately notify the other Party of any unauthorised use or disclosure of Confidential Information belonging to the other Party.

Remedies

  1. Each Party acknowledges that damages may not be an adequate remedy for breach of this clause and that either Party is entitled to be granted specific performance, injunctive relief in addition to any other legal or equitable remedy for breach or threatened breach in addition to any other available remedies.

SECTION 8 – SPECIAL CONDITIONS

  1. If there is any inconsistency between the terms of the body of this Agreement and the Special Conditions, the Special Conditions will prevail to the extent of that inconsistency only.

SECTION 9 – FORCE MAJEURE

  1. Neither Party shall be responsible for any failure to perform any obligation under this Agreement if performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the Parties (each a Force Majeure Event). The Party affected shall promptly give notice to the other Party setting out full particulars of the Force Majeure Event and make all reasonable endeavours to mitigate the effects of this event on that Party’s performance of its obligations under this Agreement. If by reason of a Force Majeure Event, the delay or non-performance of a Party’s obligations continues for more than ninety (90) consecutive days, the other Party may terminate this Agreement by written notice. Neither Party shall be responsible for any failure to perform any obligation under this Agreement if performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the Parties (each a Force Majeure Event). The Party affected shall promptly give notice to the other Party setting out full particulars of the Force Majeure Event and make all reasonable endeavours to mitigate the effects of this event on that Party’s performance of its obligations under this Agreement.
  2. If by reason of a Force Majeure Event, the delay or non-performance of a Party’s obligations continues for more than ninety (90) consecutive days, the other Party may terminate this Agreement by written notice.

SECTION 10 – NOTICES

Notices:

  1. to or by a Party under this Agreement must be in writing and signed by the sender or, if a corporate Party, an authorised officer of the sender;
  2. may be served by delivery in person or by post or transmission by facsimile or email to the address or number of the recipient specified in this provision or most recently notified by the recipient to the sender; and
  3. is effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a facsimile or email transmittal confirmation report before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next day following delivery or receipt.

SECTION 11 – APPLICABLE LAW AND JURISDICTION

  1. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia.
  2. Each Party irrevocably submits to the exclusive jurisdiction of the Courts of the State of Victoria, Australia and the Courts of appeal from them. Each Party waives any right it has to object to an action being brought in those courts, including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those Courts do not have jurisdiction.

SECTION 12 – INTERPRETATION

  1. In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
  • words that are words importing the singular include the plural and vice versa;
  • words importing a geItender include any gender;
  • where a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
  • an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
  • a reference to anything (including, but not limited to, any right) includes a part of that thing;
  • a reference to a clause or Party is a reference to a clause of, and a Party to, this Agreement;
  • a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
  • a reference to a document includes an amendment or supplement to, or replacement or novation of that document;
  • a reference to a Party to a document includes that Party’s successors and permitted assigns;
  • a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind; and
  • a reference to a month is a reference to a calendar month.

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