Terms & Conditions

• – We are not responsible for the services provided by Third Parties (Third Party Services).
• – You agree to provide us access to any Third Party Services that we reasonably require to provide the Services to you.
• – We may request that you provide us with your account information to a Third Party Service (Credentials). If you provide us with your Credentials, you authorise us to use the Credentials to access the relevant accounts to perform the Services.
• – With your written approval, we may create an account for you on a Third Party Service or engage a new service via an existing Third Party Service account on your behalf (such as Google). You agree to provide personal information and payment details to, or authorise us, to provide your personal information and payment details on your behalf to, and pay directly, the applicable Third Party for any Third Party Services, as agreed between the Parties. You agree that by giving us written approval, you will be directly responsible for:
  • – compliance with terms and conditions or licence of the Third Party Services; and/or
  • – any fees charged by the Third Party.
• – If we create an account on a Third Party Service for you, we will provide you with your Credentials and retain a copy in our systems to use when we require access to the Third Party Services to perform the Services.
• – We will use our best endeavours to store your Credentials and any personal information you provide securely in our systems and such Credentials can only be accessed by the necessary Personnel or Third Parties that assist with performing the Services.
• – You agree to inform us immediately if you hold the view that your Credentials have been compromised.
• On termination of this Agreement or our reasonable request from time to time, we will recommend you change your Credentials in order to ensure that your security in accessing the Third Party Services is not compromised.
• – We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
• – If we create an account on a Third Party Service for you, we may hold a contractual lien on the account for the Third Party Service, and will have no obligation to transfer the account for Third Party Services to you, unless you have paid us all amounts due and payable under this Agreement.

You represent, warrant and agree that:

• – there are no legal restrictions preventing you from entering into this Agreement;
• – all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
• – you have not relied on any
• – epresentations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
• – you are not and have not been the subject of an Insolvency Event;
• – if applicable, you hold a valid ABN which has been advised to us; and
• – if applicable, you are registered for GST purposes.

• – As between the Parties:
  • – we own all Intellectual Property Rights in Our Materials;
  • – you own all Intellectual Property Rights in Your Materials, and
  • – nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
• – As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. On receiving full payment of the Fees and any other amounts due and payable under this Agreement, we will assign any New Materials to you.
• – You grant us a non-exclusive, revocable, worldwide and non-transferable right and licence, for the duration of the Term, to use Your Materials and the New Materials, for the performance of our obligations under this Agreement, as contemplated by this Agreement.
• – If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
• – In the use of any Intellectual Property Rights in connection with this Agreement, you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.
• – This clause 9 will survive termination or expiry of this Agreement.

Each Receiving Party agrees:

• – not to disclose the Confidential Information of the Disclosing Party to any third party;
• – to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
• – to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

The obligations in clause 10.1 do not apply to Confidential Information that:

• – is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
• – is authorised to be disclosed by the Disclosing Party;
• – is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
• – must be disclosed by Law or by a regulatory authority, including under subpoena.

Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10.  A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.

This clause 10 will survive the termination of this Agreement.

• – Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees, and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
• – If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
• – Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
• – This clause 11 will survive the termination or expiry of this Agreement.

• – Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
  • – your or your Personnel’s acts or omissions;
  • – any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
  • – any Third Party Services;
  • – the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
  • – any event outside of our reasonable control.

You acknowledge and agree that:

• – we are not responsible for back links or toxic links, including, but not limited to, URLs dropped or excluded for any reason or any incorrect email addresses;
• – if under the Services, we provide search engine optimisation services:
  • – the results of our Services may be impacted by different factors, including, but not limited to, your website history, your industry, the content on your website and your content management system, and we do not guarantee any results; and
  • – if such Services are suspended for any reason, we do not guarantee the same or similar website rankings.
• – if under the Services, we provide services relating to Google AdWords, we do not guarantee:
  • – a particular, or consistent, position or ranking of your advertising across any medium;
  • – that your submissions will be accepted;
  • – that we will be able to purchase selected keywords or distribute your ads on any site requested by you;
  • – the position of your ads on any site;
  • – the cost per click; and/or
  • – that any unused campaign spend will rollover to the next monthly period.
• – we are not responsible for removing reviews on your business listing on any medium;
• – we only manage the Services during our standard business hours, and we have no obligation to respond to comments or posts outside these hours;
• – failure to provide content, items or other information within the timeframe agreed between the Parties may lead to our delay in the provision of the Services; and
• – you are responsible for backing up your website.
• – This clause 12 will survive the termination or expiry of this Agreement.

• – Despite anything to the contrary, to the maximum extent permitted by law:
  • – neither Party will be liable for Consequential Loss;
  • – a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
  • – our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
• – This clause 13 will survive the termination or expiry of this Agreement.

• – This Agreement will commence on the Commencement Date and will continue for the Term.
• – This Agreement will automatically renew for the relevant Services for successive periods of 1-month (Renewal Term) upon expiration of the relevant Services Term or any Renewal Term, unless a Party provides the other Party with at least 30 days’ written notice of termination of the Agreement.
• – For the avoidance of doubt, unless otherwise agreed between the Parties, for any Renewal Term, we will continue to provide the same Services provided by us to you during the Services Term.
• – At least 4 weeks prior to the expiry of the Services Term, we will contact you, to discuss the continuation of this Agreement.
• – You may cancel any part of the Services by providing us with 30 days’ notice in writing. If you cancel any part of the Services within the Minimum Period of those relevant Services, you agree to pay us the Cancellation Fee relevant to those Services, which you acknowledge is a genuine pre-estimate of our loss.

• – This Agreement will terminate immediately upon written notice by:
  • – us, if:
    • – you (or any of your Personnel) breach any material term of this Agreement and that breach has not been remedied within 10 Business Days of being notified by us (including any non-payment of any amounts due and payable under this Agreement);
    • – you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
    • – in our reasonable opinion, our working relationship has broken down and is irretrievable;
    • – for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
    • – you are unable to pay your debts as they fall due; and
  • – you, if we:
    • – are in breach of a material term of this Agreement, and that breach has not been remedied within 10 Business Days of being notified by you; or
    • – are unable to pay our debts as they fall due.
• – Upon expiry or termination of this Agreement:
  • – we will immediately cease providing the Services;
  • – you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination and all other amounts due and payable under this Agreement;
  • – if we terminate this Agreement under clause 1(1), (2), (3) and (5), you agree to pay our additional costs arising from termination;
  • – we may delete any data held by us after the expiry of 90 days after termination or expiry of this Agreement; and
  • – you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information, Our Materials, our Intellectual Property and the New Materials (where you have not paid the Fees in full).
• – We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
• – Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
• – This clause 15 will survive the termination or expiry of this Agreement.

If and when applicable, GST payable on the Fee will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Fee.

• – Amendment: This Agreement may only be amended by written instrument executed by the Parties.
• – Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
• – Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation will be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
• – Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
• – Governing law: This Agreement is governed by the laws of New South Wales, Australia.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
• – Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
• – Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
• – Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

• – In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them within this Agreement, in the Quote, and:

  ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

  Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

  Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

  Cancellation Fee means the genuine pre-estimate of our loss, being a percentage of the Fee equal to the percentage of the costs of relevant Services plus any expended costs for the Minimum Period, minus the portion of the Fee already paid by you to us up to the date of termination.

  Commencement Date means the date this Agreement is accepted in accordance with clause 1.1.

  Confidential Information includes information which:

  • – is disclosed to the Receiving Party in connection with this Agreement at any time;
  • – is prepared or produced under or in connection with this Agreement at any time;
  • – relates to the Disclosing Party’s business, assets or affairs; or
  • – relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

  whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

  Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

  Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

  Expenses means any disbursements, including travel and accommodation costs, advertisement buying costs, website template costs and any other third party costs, reasonably and directly incurred by us for the purpose of the provision of the Services.

  Fees means the price set out in the Quote.

  Insolvency Event means any of the following events or any analogous event:

  • – a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
  • – a Party ceases, or threatens to cease, carrying on business;
  • – a Party is unable to pay the Party’s debts as the debts fall due;
  • – any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
  • – any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
  • – any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.

  Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

  Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

  Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):

  • – copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
  • – creating derivative works from our Intellectual Property;
  • – providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
  • – assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of any of our Intellectual Property Rights, except as expressly permitted in this Agreement;
  • – reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
  • – using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

  Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.

  Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

  Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

  Minimum Period means any minimum period for the whole or part of the Services, as further particularised in the Quote.

  Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

  New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement.

  Payment Terms means the payment terms set out in the Quote.

  Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

  Quote means the quote relevant to this Agreement.

  Receiving Party means the party receiving Confidential Information from the Disclosing Party.

  Services means the services set out in the Quote, and includes any term applicable for the relevant services (Service Term).

  Statutory Rights has the meaning given in clause 11.1.

  Term means the term of this Agreement, commencing on the Commencement Date until the last Service Term date set out in the Quote for the provision of the Services and as extended for any Renewal Term, unless earlier terminated in accordance with its terms.

  Third Parties means third parties who are not our employee or our direct contractor, including customers, end users, suppliers, transportation or logistics providers or other service providers which the provision of the Services may be contingent on, or impacted by

  Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.