THESE TERMS AND CONDITIONS, TOGETHER WITH THE SERVICES AGREEMENT FORM A LEGALLY BINDING CONTRACT BETWEEN YOU OR “THE CLIENT” (IDENTIFIED IN ITEM 1 OF THE SERVICES AGREEMENT) AND BIZ WISDOM PTY LTD (ABN 44 866 921 105) (REFERRED TO AS “WE” “OUR” OR “US”) FOR THE SUPPLY OF THE SERVICES.
PLEASE NOTE THAT BY US COMMENCING WORK ON YOUR MATTER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THE TERMS OF THE CONTRACT.
Budget means the agreed spend for the Services to be provided by us (as adjusted from time to time) as described in Item 5 of the Services Agreement.
Commencement Date means the date of our Contract with you as specified in Item 2 of the Services Agreement.
Contract means our Contract with you as constituted by these Terms and Conditions and the Service Agreement.
IP Rights includes trademarks, trade names, copyright, source code and other intellectual property rights.
Price means the rates for the provision of the Services as set out in Item 6 of the Services Agreement.
Services Agreement means the document titled as such which includes a description of the Services, the Budget, the Price and those other matters described therein (as amended from time to time).
Services means the provision of online marketing services which may include marketing, advertising, promotion, web services, or search engine optimisation as more properly described in Item 4 of the Services Agreement.
Service Accounts means the account or accounts (i) developed owned by and maintained by us on behalf of you (ii) which is to be used in connection with online marketing services, including but not limited to Google Adwords Account, Bing Ad Center Account and (iii) forms the subject matter of this Contract, including the Services.
Special Conditions means those conditions described in Item 8 of the Services Agreement which take priority over these Terms and Conditions.
Term means the period set out in Item 3 of the Services Agreement commencing on the Commencement Date and includes any extension of that period.
Terms and Conditions means these terms and conditions.
You or Your means Client described in Item 1 of the Services Agreement.
Website means your website and includes your domain registrar and web-hosting account pursuant to which the Services are provided.
1. Provision of Services
1.1. We shall provide the Services for the Term in accordance with the Key Performance Indicators and within the Budget.
1.2. Except as varied by agreement in writing between the parties, this Contract sets out the basis on which we will provide the Services to the exclusion of all other terms and conditions.
1.3. Unless otherwise provided for in the Services Agreement upon expiry of the initial term of this Contract this Contract will continue with an automatic renewal for an additional period of the same length as the initial term of this Contract unless either party gives the other thirty (30) days (unless otherwise agreed) written notice of termination to expire on the end of the initial term of this Contract.
2.1. You acknowledge that our ability to provide the Services is dependant in part on you fulfilling your responsibilities in respect of the provision of the Services and accordingly, you agree to use all reasonable endeavours to ensure that (without limitation) you authorises us:
2.1.1. to access your Website; and
2.1.2. to access your webpage directory and any other directories or programs which need to be accessed for provision of the Services by us.
2.2. You also agree to procure any necessary third party consents (including the consent of the applicable web hosting service provider) in order for us to carry out the Services.
3. Intellectual Property
3.1. The parties acknowledge that any and all of the IP Rights developed, or embodied in or in connection with the Services and the Service Accounts as well as ownership and use of the Service Accounts, shall vest solely with us. You or any parties appointed by you will have no claim with respect to the IP rights or Service Accounts.
3.2. Any pre-existing IP Rights which existed prior to the entering into of this Contract will vest in the owner of such pre-existing IP Rights.
3.3. You grant to us a perpetual, irrevocable, non-transferable and royalty free licence to use your trademark and logo on our advertising collateral for our own marketing purposes.
Each party shall appoint a contact as set out in Item 7 of the Services Agreement to assist with the management of the Services for the Term.
5.1. We shall not be liable to you or to any third party for any failure to perform or delay in performing the Services caused (in whole or in part) by an event beyond your control including (without limitation) labour shortages, labour disputes, transport delays, data-communication delays, inability to obtain products or supplies, fires, civil disobedience, mechanical breakdown, weather, acts of God, government action or regulation, computer software error (including delays or failure of performance resulting from any internet service provider delivery problems or failure, or any communication or delivery problems associated with the your Website) or any similar event (collectively, a Delay Event). In those circumstances we can delay performance of the relevant types of Services without any liability.
5.2. If a Delay Event is caused by you or a third party associated with you and causes us to suffer any reasonable and documented cost, loss or damage (Loss), you agree to indemnify us for such reasonable and documented Loss suffered.
6. Liability and Warranty
6.1 Both parties agree that:
6.1.1 our liability for the direct losses that arise as a result from our negligence in performing the Services in accordance with this Contract shall not exceed the aggregate amount of the total Price that you have paid for the Services in the 3 months preceding the event which gave rise to the claim.
6.1.2. in the event that we are liable to you under this Contract, our liability shall be limited to direct damages, and in no event and under no legal theory, including tort, contract or otherwise, shall we be liable in any circumstances for:
18.104.22.168. loss of profits, loss of business, loss of revenue, loss of contract, loss of goodwill, loss of anticipated earnings or savings (whether any of the foregoing are direct, indirect or consequential loss or damage); or
22.214.171.124. loss of use or value of any data or equipment including software, wasted management time, operation or other time (whether any of the foregoing are direct, indirect or consequential); or
126.96.36.199. any indirect or consequential loss or damage; or
188.8.131.52. any copyright infringements and/or any other infringements of the intellectual property rights of a third party; or
184.108.40.206. your software or data including incorrect or failure to back up data, the poor performance or non-performance of your systems or Website or losses of whatever nature caused by or connected to the malfunction or failure of performance of your Website or other systems; or
220.127.116.11. any loss or damage suffered by reason of a dispute between you and the registered proprietor of the domain name relating to your Website; or
18.104.22.168. your decision not to, or your failure to implement any reasonable change to your environment that supports the Services that may be advised by us in writing.
6.2. Without limiting any of our obligations under the Australian Consumer Law, we warrant that the Services will be fit for purpose and provided with acceptable care and skill or technical knowledge and we will take all necessary steps to avoid loss and damage.
6.3. You will be liable for and will indemnify us and keep us indemnified from and against any liability and/or loss or damage of any kind whatsoever arising directly or indirectly from any breach of a third party’s IP Rights.
7.1. You agree to pay us the Price specified in Item 6 of the Services Agreement.
7.2. All payments due by you to us shall exclude any taxes and/or levies due as a result of a requirement by any governmental organization (which shall include but not be limited to any GST, importation tax, withholding tax) and all these taxes and/or levies, shall be paid by you.
7.3. Our billing cycle begins on the first day of each month. You will receive an invoice on the first of the month following the initial payment with a pro rata amount in order to bring it in line with our billing cycle.
7.4. You shall make payment of the Price within seven (7) days from the date of an invoice rendered by us.
7.5. We reserve the right to review or amend the Price on the anniversary of the Commencement Date or by giving you twenty-eight (28) days written notice.
7.6. If you fail to make any payment as required by this Contract, you agree to pay interest at the rate of 3% above the then base lending rate of Westpac Banking Corporation on any outstanding amount from the due date of payment until the outstanding amount is paid in full.
8. Compliance with Law
8.1. You warrant that you have complied with any relevant obligations imposed by all laws and standards, including, without limitation, the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and the Electronic Transactions Act 1999 (Cth) including providing all notices and obtaining all consents necessary to enable the compliant collection, handling and storing of any information or material submitted to us in accordance with its obligations under this Contract.
8.2. You agree to indemnify and hold harmless us and our employees, subcontractors, agents and permitted assigns from any claim, suit, penalty, tax, or tariff arising from a breach by you of clause 8.1.
9. Confidential Information
9.1. Each party undertakes that it will not except in the proper course of its duties under this Contract or as required by law or by the other party, disclose to any person any confidential information of or relating to the other party including, but not limited to, the terms of this Contract.
9.2 Nothing in this Contract prohibits disclosure of information which would (i) be contrary to any relevant law, (ii) is to an adviser including a legal or accounting adviser of the relevant party; or (iii) is in the public domain or is already known to the recipient without the use of the disclosing party’s information.
9.3 The obligations under this clause 9 survive the termination of this Contract.
10.1. Without prejudice to either party’s rights under any other provision of this Contract, on the occurrence of any of the following events either party will be entitled to give notice to the other party (the Recipient) to terminate this Contract on the date specified in such notice. The events are:
10.1.1. Where the Recipient enters into a liquidation except for the purposes of solvent amalgamation or reconstruction;
10.1.2. Where the Recipient ceases to carry on business;
10.1.3. Where the Recipient has a receiver appointed or enters into any scheme or arrangement (or the like) with its creditors or takes the benefit of insolvency or bankruptcy;
10.1.4. Where the Recipient fails to rectify to the other party’s reasonable satisfaction any material breach of this Contract within thirty (30) days or such longer period of time as is reasonable having regard to the nature of the material breach and its causes, in the written notice identifying the breach and requiring rectification;
10.1.5. Where for any reason this Contract is or becomes wholly or partially void, voidable, ineffective or unenforceable and that event has or could have a substantial material impact on the relationship between the parties.
10.2. Any expiration or termination of this Contract does not affect:
10.2.1. The rights of a party which may have occurred before the date of termination; and
10.2.2. The rights and obligations of a party that survive termination of this Contract.
10.3. Without prejudice to any of our rights or remedies under this Contract, we may if you have breached this Contract including but not limited to the failure to pay us for the Services, by notice in writing to you suspend part or all of the Services until such time as you rectify such a breach to our reasonable satisfaction. You acknowledge that we are entitled to continue to be paid the Price for all parts of the Services not so suspended.
10.4. In the event this Contract is terminated:
10.4.1. This Contract supersedes all prior agreements, contracts arrangements and undertakings between the parties and constitutes the entire Contract between the parties relating to the Services.
10.4.2. by us in accordance with clause 10.1:
10.4.2.1. those costs described in clause 10.4.1; and
10.4.2.2. our reasonable costs of termination actually incurred, as determined by us acting reasonably.
11. Entire Agreement
11.1. This Contract supersedes all prior agreements, contracts arrangements and undertakings between the parties and constitutes the entire Contract between the parties relating to the Services.
11.2. No addition to or modification of any provision of this Contract shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
11.3. If there is any inconsistency between the documents which make up the Contract, then the following will prevail in descending order of precedence:
11.3.1. the Special Conditions;
11.3.2. the Services Agreement; and
11.3.3. these Terms and Conditions.
12.1. All notices which are required to be given under this Contract shall be in writing and shall be sent to the address of the recipient set out in Item 7 of the Services Agreement or such other address as the recipient may designate by notice given in accordance with this section.
12.2. Any notice may be delivered by hand or by pre-paid letter or email.
12.3. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by email).
Neither party shall assign, whether in whole or part, the benefit of this Contract or any rights or obligations hereunder, without the prior written consent of the other party.
This Contract shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Contract shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this Contract be or become invalid, that part shall be severed from this Contract. Such invalidity shall not affect the validity of the remaining provisions of the Contract.
17. Dispute Resolution
Neither party will bring any court proceedings relating to this Contract (except urgent interlocutory proceedings) without first attempting to resolve the dispute by negotiation.
18. Unfair Terms
18.1. We advise and you acknowledge that:
18.1.1. the terms of this Contract are negotiable; and
18.1.2. you should review this Contract in its entirety and raise any issues of concern with us.
18.2. The parties acknowledge that the terms in this Contract are reasonably necessary to protect our legitimate business interests.
18.3. If any part of this Contract is deemed to be an unfair term and or void for the purpose of the Australian Consumer Law, then that part will be severed from this Contract and all parts which are not deemed to be an unfair term and or void for the purpose of the legislation remain in effect.