Terms and Conditions

Terms and Conditions

Background

A The Customer wishes to engage the Supplier to provide the Services.

B The Supplier has agreed to perform the Services and the Customer has agreed to pay the Fees on the terms and conditions of the Contract

1. Services

The Supplier will perform the Services for the Customer in consideration for payment of the Fees.

2 Contract terms

The Contract is comprised of:

(a) this Agreement; and

(b) the Statement of Work (if any);

and in the event of any inconsistency between the Agreement and the Statement of Work, the terms of the Agreement will prevail.

3 Fees

(a) The Customer agrees to pay the Supplier the Fees for performance of the Services.

(b) The Fees are based on the agreed description of Services and the Supplier may amend the Fees or charge additional fees if additional services are to be provided by the Supplier.

(c) The Supplier may adjust the Fees once in each twelve month period of the Term, in accordance with the change in CPI in the previous 12 months.

(d) The Supplier will give the Customer 30 days’ notice of any adjustments to the Fees made under this clause 3.

4 Payment

(a) The Supplier will invoice the Customer for Services within 5 Business Days of the end of each month in which Services are provided to the Customer.

(b) The Customer agrees to pay Supplier all Fees (including GST) as specified in an invoice issued by the Supplier within 28 days of the date of that invoice (Invoice Due Date), without discount, deduction, counterclaim or set-off.

(c) If the Customer has authorised the Supplier to process direct debit payments to pay the invoices, then the Supplier is authorised to direct debit the Customer on the 10th day of the calendar month following the issue of the relevant invoice (or if the 10th of the month is not a Business Day, then the next Business Day following that day).

(d) If the Customer does not pay the invoice by the Invoice Due Date and otherwise in accordance with the invoice terms, the Supplier may (in its discretion) charge the Customer a late payment fee of 5{adf8a71102a3aa130840b558b3a8e137aeec765b7e342fddb59e946ef51c3449} of the Fees payable as a late fee on each unpaid invoice, which the Parties acknowledge is a genuine pre-estimate of loss which would be incurred by the Supplier for late payment of the Fees.

(e) If an invoice remains unpaid for a further period of 14 days after the Supplier has sent a demand for payment after the Invoice Due Date then, without prejudice to its other rights under this Contract, the Supplier may suspend the Services while the payment remains outstanding.

(f) If the Supplier identifies any error in previous invoices issued by it, it may issue a further invoice to the Customer correcting such error.

5 Supplier’s obligations

(a) The Supplier undertakes to use all reasonable commercial endeavours to:

(i) provide the Customer with the Services as described in the Contract, using reasonable care and skill; and

(ii) ensure the Services conform in all material respects with the description in the Statement of Work (if applicable).

(b) The Supplier warrants that it will comply in all material respects with laws relating to the provision of the Services.

6 Customer’s obligations

6.1 Assistance and information

(a) The Customer undertakes to provide the Supplier with all reasonable access to its information, content, logos and business records (including its domain name), as is reasonably required by the Supplier to enable the Supplier to perform the Services.

(b) The Customer:

(i) undertakes to ensure that all information, content and business records that it and its Personnel provide to the Supplier is accurate and complete;

(ii) undertakes to immediately notify the Supplier of any changes to any information, content or business records provided to the Supplier in connection with the Services (including but not limited to changes to websites, domain names, codes and online records); and

(iii) acknowledges that the Supplier is providing the Services in reliance on such information, content and business records being complete and accurate.

6.2 Warranties

The Customer represents and warrants that it will comply with:

(a) all laws relating to its use of the Services or otherwise in connection with this Contract; and

(b) all of its responsibilities listed in the Statement of Work (if applicable).

6.3 Other acknowledgements

The Customer acknowledges and agrees that:

(a) it is solely responsible for the implementation or use of any information, advice or recommendations provided by the Supplier in connection with the Services; and

(b) the Supplier may alter or change the Services if necessary to comply with any applicable law, provided that the Supplier agrees to notify the Customer in writing before any such change.

6.4 Search engine optimisation

(a) The Customer acknowledges that any alterations to its website, domain name, codes or any other online content may reduce the effectiveness of search engine optimisation services provided as part of the Services. The Supplier is not responsible for any change to the efficacy of the Services which occurs as a result of any changes to the Customer’s online content or website which are made without prior notice to the Supplier.

(b) The Customer acknowledges that search optimisation services provided by the Supplier may be less effective if the Customer does not regularly upload new and unique content to its website (which will be the sole responsibility of the Customer, unless agreed otherwise).

(c) The Supplier shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Supplier shall not be liable for delayed or non-conforming performance of Services due to changes made to standard terms, algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Supplier’s control and reserves the right to make changes to the Services as a result of the same.

(d) The Supplier makes no representation in connection with the Services leading to a minimum number of views, position or frequency in searches on relevant words or otherwise and will not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations or minimum volume of sales by the Customer.

7 Variations to Services

(a) If the Customer requires any change, increase, decrease or omission from any part of, or all of, the Services (Variation), the Customer may request such a Variation by written notice to the Supplier.

(b) If a Variation is agreed to in writing by the Supplier (including an agreement in respect of Fees payable for the Variation), then those agreed terms will be deemed to be incorporated into this Contract.

(c) If the Supplier does not agree in writing to the terms or Fees in respect of a Variation, then it will not be obligated to comply with the terms of a requested Variation.

8 Liability

8.1 Representations and warranties

(a) To the extent permitted by law and except as expressly set out in this Contract, the Supplier makes no representation or warranty to the Customer and expressly excludes all warranties and representations with respect to the Services.

(b) The application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth)) is not excluded to the extent the Customer is a ‘consumer’ as that term is defined in the Competition and Consumer Act 2010 (Cth), or any similar law) where to do so would contravene that statute or cause any part of this clause to be void.

8.2 Supplier’s liability 

(a) To the maximum extent permitted by law:

(i) the Supplier’s maximum aggregate liability for all Claims under or in connection with the Contract, the Services or its subject matter, is limited to an aggregate amount equal to the amount of Fees paid by the Customer under this Contract;

(ii) the Supplier is not liable for loss of profit, loss of opportunity, loss of business opportunity or goodwill, loss of data, damage to reputation, or any other special, indirect, consequential, incidental or punitive losses or damages (whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage); and

(iii) the Supplier’s liability to the Customer under or in connection with the Contract or its subject matter is reduced to the extent that the Customer’s acts or omissions, or acts or omissions of a third party, contribute to or cause such liability.

(b) The Supplier is not liable for any improper access, copying or corruption of Customer Content before it enters or after it leaves the Supplier’s systems.

(c) The Supplier is not responsible for any damage to any of the Customer’s equipment or software resulting from the provision of the Services.

(d) The Supplier shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Supplier shall use its reasonable efforts to assist in remedial efforts to address such failures if so requested by the Customer, provided that any work connected with remedial efforts as described above shall be charged to the Customer separately in accordance with clause 7.

(e) The Supplier is not responsible for delays, disruptions or other faults in the Services caused by factors beyond the Supplier’s reasonable control, including but not limited to internet or software faults, defaults, acts or omissions of third parties, acts of God such as fires, storms, floods, earthquakes, or changes to laws or government actions.

(f) To the extent the Supplier’s liability is not excluded under this clause 8.2, the Supplier’s liability is limited to, at the Supplier’s sole option, the re-supply of the Services or the payment of the costs of having those Services supplied again.

(g) The limitations and exclusions set out in this clause 8 apply regardless of the basis on which the Supplier’s liability arises, whether in contract, tort (including but not limited to negligence), in equity, under statute or on any other basis.

8.3 Notification of Claim

(a) The Supplier will not be liable for any Claim by the Customer unless notice of the Claim is given to Supplier within 90 days of the performance of the Services which are the subject of the Claim.

(b) If the Customer does not give notice of any Claim by the deadline specified in clause 8.3(a), the Customer is deemed to have accepted the Services and will not be entitled to make any Claim in respect of such Services.

(c) The Supplier will be discharged from all liability for a Claim unless proceedings are commenced within 90 days of the date that notice of that Claim is given to the Supplier.

8.4 Customer Indemnity

The Customer must indemnify and keep indemnified the Supplier, its Personnel and its related bodies corporate, against all Losses and costs that any of them may sustain or incur as a result, directly or indirectly, of:

(a) any breach of this Contract by the Customer or its Personnel;

(b) any wilful, unlawful, fraudulent or negligent act or omission of any the Customer or its Personnel in connection with this Contract; or

(c) any penalty imposed for beach of any applicable law in connection with the provision of the Services which arises from the Supplier’s use or handling of the Consumer Content.

8.5 No reliance

The Customer acknowledges and agrees that:

(a) it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract;

(b) any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s promotional or quote materials are issued or published solely for illustrative purposes, and such material shall not form part of the Contract;

(c) no accounting, financial or legal advice or counsel is given or shall be deemed to have been given by the Supplier; and

(d) to the extent the Services include any recommendations, comments and prompts, these are not a substitute for legal, accounting or other professional advice and it is the responsibility of the Customer to determine independently or with the aid of advice whether and how to proceed with any recommendations, comments or prompts provided by the Supplier.

9 Privacy and content

9.1 Supplier’s obligations

The Supplier agrees that it will:

(a) not disclose any Customer Content shared with it that is Confidential Information to any third party, except as necessary to provide the Services, where required by law or where the Customer provides its consent to do so; and

(b) comply with Privacy Laws that apply to the Supplier when collecting, holding, using or disclosing any Personal Information.

9.2 Customer’s obligations 

The Customer agrees that it will:

(a) ensure that it has obtained all rights necessary for the Supplier to handle and process the Customer Content;

(b) comply with any Privacy Laws that apply to it when providing Personal Information to the Supplier; and

(c) confirm that the purposes for which Personal Information disclosed to the Supplier may be processed as described in the Contract was collected or obtained in compliance with all Privacy Laws.

10 Confidentiality

(a) Each Party must, and must procure that its Personnel:

(i) keep confidential all Confidential Information of the other Party, unless disclosure is consented to in writing by the other Party;

(ii) only use Confidential Information as is necessary to provide Services under this Contract; and

(iii) not use any Confidential Information to the competitive disadvantage of the other Party.

(b) Each Party may disclose Confidential Information to its Personnel, provided each Party must restrict disclosure of Confidential Information to such Personnel as need to know the Confidential Information for the purpose of providing Services or complying with its obligations under this Contract.

(c) Nothing in this Contract prevents the disclosure of Confidential Information by a Party to the extent that it is required by law, provided that the relevant Party must only disclose the minimum amount of information necessary to comply with the requirement and, to the extent permitted by law, promptly notify the other Party of any such disclosure.

11 Non-solicitation

From the Commencement Date and for a period of 12 months from the end of the Term, the Customer must not:

(a) solicit the employment of any employee or officer currently employed or engaged by the Supplier, or attempt to entice any such person to leave their employment or engagement with the Supplier; and

(b) other than with the prior written consent of the Supplier, contact any customer or contractor of the Supplier.

12 Intellectual Property

12.1 Supplier’s rights

(a) Supplier Content remains the property of the Supplier.

(b) The Supplier exclusively owns, and the Customer hereby assigns to the Supplier on creation, all existing and future Intellectual Property Rights in and to the Developed Content. The Supplier must do all things necessary to assign or transfer ownership of Developed Content to the Supplier.

(c) The Supplier grants to the Customer a non-exclusive, royalty free, non-transferable licence to use the Developed Content for the sole purpose of enjoying the benefit of the Services under this Contract.

(d) The Customer must not do or cause to be done anything which will prejudice the subsistence of the Supplier’s right, title and interest in the Developed Content.

12.2 Customer’s rights

(a) The Customer Content remains the property of the Customer.

(b) The Customer hereby grants to the Supplier a non-exclusive, royalty free, non-transferable licence to use, modify and adapt the Customer Content during the Term, for the purpose of performing its obligations under this Contract.

(c) The Supplier must maintain and keep secure all Customer Content in its possession and must not do or cause to be done anything which will prejudice the subsistence of the Customer’s interest in the Customer Content.

12.3 Intellectual property warranty and indemnity

(a) The Customer warrants to the Supplier that the Supplier’s use of the Customer Content does not infringe the Intellectual Property Rights of any person.

(b) The Customer indemnifies the Supplier and its Personnel against all and any Loss directly or indirectly arising out of, or in connection with any breach by the Customer of this clause 12.3.

13 Termination

13.1 Termination without cause

(a) Either Party may terminate the Contract without cause on 30 days’ written notice.

(b) If the Customer terminates the Contract under clause 13.1(a), the Customer must pay:

(i) the reasonable fees and expenses of the Supplier for all Services provided to the Customer up to the date of termination; and

(ii) Fees for the 30 day termination period following notice by the Customer of the termination of the Contract, whether or not any additional Services are provided by the Supplier.

13.2 Events of default

The Customer will be in default of this Contract if the Customer:

(a) fails to pay any Fees payable to the Supplier within 14 days of a written demand by the Supplier made after the Invoice Due Date;

(b) fails to comply with any obligation under this Contract, and does not make good that default within a reasonable time frame after notice from the Supplier;

(c) goes into administration, receivership, liquidation or provisional liquidation or an application is made for it to be wound up;

(d) is threatened with or subject to any court action (or resolution proposed or passed) to place it under any form of bankruptcy, insolvency, administration, receivership or liquidation; or

(e) is insolvent within the meaning of the Corporations Act 2001 (Cth), bankrupt or stops payment of any of its debts.

13.3 Remedies

If any of the events contained in clause 13.2 occurs, the Supplier may do any one or more of the following:

(a) immediately terminate this Agreement by written notice to the Customer;

(b) recover from the Customer any Loss suffered by the Supplier as a result of the Customer’s default; and

(c) exercise any of its other legal rights arising under this Contract.

13.4 Termination by Customer for breach

The Customer may terminate this Contract on 14 days’ notice if the Supplier fails to comply with any obligation under this Contract and does not make good that default within a reasonable time frame after notice from the Supplier.

13.5 Termination

This Contract terminates on the date either party terminates this Agreement in accordance with this clause 12.1(a).

13.6 All rights preserved 

Termination of this Contract will be without prejudice to the accrued rights and obligations of either Party under this Contract including:

(a) the right of the Supplier to be paid all amounts that are outstanding under this Contract; and

(b) the obligations imposed on each Party under clauses 8, 9 10, 11 and 12.

14 Force Majeure 

The Supplier is not liable for any delay in delivery of the Services caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate instructions, records, content or information relevant to the supply of the Services.

15 GST

(a) If GST or any similar value added tax is or becomes payable on any supply under this Contract, the Customer must pay the Supplier the GST or value added tax amount imposed at the same time as payment of the Fees.

(b) All Fees are expressed exclusive of GST.

16 General

16.1 Counterparts

This Contract may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Contract and, without limiting the foregoing, if the signatures on behalf of one party are on different counterparts, this shall be taken to be, and have the same effect as, signatures on the same counterpart and on a single copy of this Contract.

16.2 Further assurance

Each Party agrees, at its own cost and expense, upon the request of the other Party, to do and execute or cause to be made done or executed all such acts, instruments and assurances as may be reasonably necessary or desirable to give effect to the provisions of this Contract and to use all reasonable endeavours to cause third parties to do likewise.

16.3 Severability

If any provision of this Contract shall be or be determined to be illegal, invalid, void or voidable, the legality or validity of the remainder of this Contract shall not be affected and the remainder of this Contract shall continue in full force and effect.

16.4 No exclusivity

The Supplier provides the Services to the Customer under this Contract on a non-exclusive basis and is permitted to provide the same or similar services to any third party.

16.5 No waiver

The failure of either Party to enforce or to exercise at any time or for any period of time any right pursuant to this Contract does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.

16.6 No merger

None of the provisions of this Contract will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to the provisions of this Agreement.

16.7 Assignment of rights

(a) The Customer must not assign or novate this Contract, or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of the Supplier.

(b) For the purposes of clause 16.7(a), the Customer is deemed to assign the Contract if there is any change in the effective control of the Customer.

(c) The Supplier must not assign or novate this Contract, or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of the Customer, except where such assignment, novation or dealing is:

(i) to or with a related body corporate of the Supplier;

(ii) is made in connection with an internal restructure of the Supplier’s business; or

(iii) where the Supplier sells or divests some or all of its business,

in which case the Customer must do anything reasonably necessary requested of it by the Supplier to give effect to any such assignment.

16.8 Subcontracting

The Supplier is entitled to sub-contract some or all of its obligations under this Contract.

16.9 Entire agreement

The Contract constitutes the entire agreement between the Supplier and the Customer as to its subject matter and in relation to that subject matter, supersedes any prior understanding or agreement between Supplier and the Customer, whether made orally or in writing, and including any letter of intent or proposal.

16.10 Amendments

The Contract may only be varied, amended, supplemented or replaced by express written agreement between the Parties.

16.11 Governing law

This Contract is governed by the laws of Victoria and each Party submits to the exclusive jurisdiction of the courts of Victoria and all courts competent to hear appeals from the courts of Victoria in respect of all proceedings arising in connection with this Contract.

16.12 Legal relationship 

Nothing contained in this Contract shall be construed so as to constitute any Party to this Contract a partner, agent or representative of the other or others or to create any trust or partnership with any person or company or commercial entity for any purpose whatsoever.

16.13 Consents and approvals

Where anything depends on the consent or approval of a Party then, unless this Contract provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that Party.

16.14 Notices

Notices provided under this Contract must be provided in writing or by email to the Party contact details specified in the Agreement Specifics.

17 Definitions and interpretation

17.1 Definition

In this Agreement, capitalised terms will have following meanings, unless the context otherwise indicates:

Agreement means this agreement.

Agreement Specifics means the particulars of this Contract set out on page 1 of the Agreement.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Melbourne and Sydney are open for business.

Claim means any allegation, cause of action, claim or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.

CPI means the published Consumer Price Index (CPI) figure for All Groups (Melbourne) issued by the Australian Bureau of Statistics.

Confidential Information means any information provided to a Party or its Personnel in connection with this Contract which is confidential in nature, including technical or commercial know-how, specifications, inventions, processes or any other confidential information concerning the either Party’s business or its products, but does not include any information that has rightfully been shared with or developed by the other Party free of an obligation of confidence, or is otherwise publicly available (other than by breach of this Contract).

Content means content or material in whatever form, including without limitation documents, specifications, reports, products, equipment, information, data, graphic layouts, images and software.

Contract means the contract between Supplier and the Customer for the supply of Services comprising of this Agreement and the Scope of Work.

Customer means the entity specified as the ‘Customer’ in the Agreement Specifics.

Customer Content means Content that the Customer transfers to the Supplier in connection with the Services.

Developed Content means all Content in any form (whether visible or not) brought or required to be brought into existence by or on behalf of the Supplier pursuant to providing the Services.

Fees means the fees agreed to be paid by the Customer to Supplier as set out in the Agreement Specifics.

Force Majeure Event means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of third parties, suppliers or subcontractors.

Intellectual Property Rights means all industrial and intellectual property rights, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, or other proprietary right, and applications for, and rights to apply for, registration of any of the foregoing.

Invoice Due Date has the meaning given to it in clause 4(a).

GST means the tax imposed by the GST Law.

GST Law has the meaning attributed in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Loss means any cost (including legal costs and expenses of whatsoever nature or description), damages, debt, expense, liability or loss and includes tax costs.

Party means the Customer or Supplier and Parties means both of them collectively.

Personal Information means:

(a) information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or

(b) information or a document that relates to the affairs or personal particulars of another person (such as a company or a business).

Personnel means any employees, subcontractors, agents or representatives of the relevant Party.

Privacy Laws means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), the Telecommunications Act 1997 (Cth), the Privacy Policy issued by the Supplier from time to time, and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.

Supplier Content means any Content owned by the Supplier or licensed to the Supplier by a third party.

Statement of Work means the document entitled ‘Statement of Work’ expressed to be between Supplier and the Customer entered into in connection with this Contract (if any).

Term means the period commencing on the Commencement Date and ending on the date this agreement is terminated in accordance with clause 12.1(a).

17.2 Interpretation

In this Agreement the following rules of interpretation apply unless the contrary intention appears:

(a) headings are for convenience only and do not affect the interpretation of this Agreement;

(b) the singular includes the plural and vice versa;

(c) words that are gender neutral or gender specific include each gender;

(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(e) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation;

(f) a reference to:

(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation, trust or other body corporate;

(ii) a thing (including but not limited to a chose in action or other right) includes a part of that thing;

(iii) a party includes its agents, successors and permitted assigns;

(iv) a document includes all amendments or supplements to that document;

(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;

(vi) this Agreement includes all schedules and attachments to it;

(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;

(viii) a statue includes any regulation, ordinance, by-law or other subordinate legislation under it;

(ix) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and

(x) a monetary amount is in Australian dollars and all amounts payable under or in connection with this Agreement are payable in Australian dollars;

(g) an agreement on the part of two or more persons binds them jointly and severally;

(h) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Contract or any part of it;

(i) when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;

(j) in determining the time of day where relevant to this Agreement, the relevant time of day is:

(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or

(ii) for any other purpose under the Contract, the time of day in the place where the party required to perform an obligation is located;

(k) a day is the period of time commencing at midnight and ending immediately before the next midnight is to occur; and

(l) if a period of time is calculated from a particular day, act or event (such as the giving of a notice), unless otherwise stated in this Agreement it is to be calculated exclusive of that day, or the day of that act or event.

Executed as an agreement.