TERMS & CONDITIONS
SECTION A. META & GOOGLE ADS MANAGEMENT
1.1 The following clauses constitute the terms of any contract subject to which Client enters a contract with Supplier for the purpose of Google & Meta Ads Campaign set up, management, and intellectual property ownership in relation to work carried out by Supplier.
1.2 Supplier means Web Design Market Pty Ltd.
Length of contract, fees, intellectual property rights and ownership of data collection
2.1 This contract will run as outlined in the service commitment, and transitions to a quarterly (90 Day) retainer at the end of it.
2.2 Supplier does not receive any commissions from Google or any other search engine and does not add a mark up to any prices charged to our clients from a search engine.
2.3 All campaign work (advertising set up and settings) carried out by Supplier on any Google Ads, Bing or Facebook account will remain the intellectual property of Client during the lifetime of the contract and will remain the intellectual property of Client following termination of the contract.
2.4 All design and content improvements to website by Supplier will remain the intellectual property of Client during the lifetime of the contract and will remain the intellectual property of Client following termination of the contract.
Google Account Details
3.1 Client agrees to not grant access to your Ads account to another Ads management company during the lifetime of the contract.
Termination of the contract
4.1 Notice of cancellation of the contract shall be deemed valid and accepted by Supplier if received by facsimile, e-mail or post within 48 hours of the end of any billing cycle or end of program period. Cancellation will be accepted on date of actual receipt by Supplier and will take effect immediately with future payment collections stopped.
Changes to these terms and conditions
6.1 Supplier may, in its discretion, change these terms of use without notification, by notifying Client of new Terms and Conditions by facsimile, e-mail or post.
6.2 Payment of supplier invoices at any time constitutes an acceptance of Supplier’s Terms and Conditions.
Governing law
7.1 These terms and conditions shall be governed by and construed in all respects in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts as regards any claim or matter arising in relation to these terms and conditions.
Meta specific terms and conditions
8.1 Unless otherwise expressly agreed to between you and Web Design Market Pty Ltd, it will be your (Client) responsibility to monitor, manage and respond to all commentary on the Facebook Page;
Web Design Market Pty Ltd may, on occasion, manage third party applications at your request.
SECTION B. STANDARD TERMS AND CONDITIONS
Out of Scope Work
1.1 Excluded Services
Unless otherwise expressly stated in the schedule, the following services are outside the scope of services:
a) any excluded services specified in the schedule;
b) any new website development: we may create new content and campaign landing pages on your existing site, but do not propose to replace your website;
c) any printing or distribution of print media: our designs and image content are created for digital use at web resolution;
d) any conversion or recreation of digital designs into print ready files at print resolution;
e) any mobile application or software development.
1.2 Out of Scope Work
a) Supplier may at our discretion, upon request by the Client, provide out of scope work, subject to the terms of this agreement.
b) All external marketing spend incurred in the course of providing the out of scope services is Client’s responsibility, unless otherwise agreed in writing in advance of our incurring the external marketing spend.
Service Rights and Limitations
2.1 Service Limitations
Unless expressly agreed in the scope of the campaign services:
a) we do not warrant or represent that Client will receive any particular exposure, number of page impressions, leads, conversions, sales or increase in revenue;
b) the Parties agree to extend the deadline in the event that the Client changes the requirements after the agreed date(s) for final comment and/or causes delays in providing approvals to the campaign; and
c) we will apply due skill and diligence to the performance of the services, but do not undertake to meet any general industry standards, such as for information security, user experience or accessibility; and
2.2 Warranties
Client warrant and represent to Supplier that:
a) Client and your representatives have all necessary licences and legal rights to provide the client materials and to authorise us to provide the services;
b) Client own or are otherwise authorised to grant the license, and that following your directions will not cause Supplier to infringe upon any third party intellectual property rights;
c) The campaign, and any deliverable Client approve, complies with all applicable laws and advertising standards;
d) following your directions will not cause Supplier to contravene any applicable laws, including Australian consumer law; and
Client must provide adequate assurances of these warranties upon request, including providing copies of any relevant licenses.
2.3 Right to Subcontract
We may appoint employees, contractors or agents to provide all or part of the services; and such entities are bound by the same obligations as Supplier under this Agreement. It is our responsibility to ensure such entities comply with this Agreement.
Intellectual Property
3.1 Client Materials and Trade Mark Rights
a) Client retains ownership of all relevant intellectual property rights in the client materials, including any trade marks, content, assets and artwork Client provide us to perform the strategy and campaign services and such rights are not assigned or transferred to us.
3.2 License to Review, Test and Approval
For the duration of this agreement and subject to its terms, Supplier grants Client a royalty free, non-exclusive license to use any intellectual property in materials we provide for the purposes of reviewing, testing and approving the work. This licence is expressly limited and does not include use in any production environment.
3.3 New Intellectual Property
a) All new intellectual property rights developed by the supplier in connection with the services vest in and are owned by Supplier upon creation.
b) We may incorporate third party materials, subject to applicable open source or third party licensing terms as we notify to you. Such rights may be more restrictive than the rights granted to new intellectual property in clause 3.3(c).
c) Subject to your performance of your obligations under this agreement, payment of all applicable fees in full, and any third party licence terms under clause 3.3(b), intellectual property rights in any:
(i) images, photography and videography are retained by the author or creator, and subject to any further licence limitations imposed by the creator, we grant Client a irrevocable, non-exclusive, perpetual, worldwide sub licence to use these materials in connection with the campaign;
(ii) designs, branding, website content, banner ads, and any other materials we create in connection with the campaign are assigned to you.
Suspension and Termination
4.1 Suspension
We may suspend the services at any time, giving notice, if:
a) Client do not make any payment when due, or any payment is dishonoured or subject to chargeback
b) Client fail to provide any required content, feedback or approval in a timely manner;
c) We are required to do so by any law, regulation, court order or binding direction of a legal authority of equivalent standing; or
d) Client are otherwise in default of this agreement.
Suspension under this clause does not affect your liability to make any payment under this agreement, and expressly does not suspend the campaign spend, which remains payable for the full campaign duration despite any suspension of services.
4.2 Termination Rights
a) During the minimum campaign commitment specified in the schedule, either party may end this agreement without cause, by giving 7 days written notice. Termination under this clause will take effect at the end of the calendar month.
b) Either party may immediately end this agreement by written notice if the other party:
(i) fails to remedy a material breach despite receiving at least 7 days written notice of the default; or
(ii) experiences an insolvency event.
c) We may immediately end this agreement by written notice if Client consistently refuse to accept our recommendations in connection with the services, such that we reasonably expect to suffer material damage to our brand and goodwill by continuing to provide services under this agreement.
4.3 Consequences of Termination
a) If this agreement is terminated during the minimum campaign commitment, the anticipated campaign spend for the remainder of the minimum campaign commitment is immediately due and payable as a liquidated debt.
b) If this agreement ends for any reason, then in addition to any other rights:
(i) We may invoice for any services not previously invoiced;
(ii) We retain a lien over all client materials in our possession or control until all outstanding invoices have been paid in full. We may delete any client materials in our possession or control 60 days from the effective date of termination of this agreement;
(iii) Subject to our lien and right of deletion in clause 4.3(b)(ii), we will provide a copy of all client materials within 30 days of termination of this agreement; and
Restraints and Confidentiality
5.1 Confidentiality
a) Each party acknowledges that in the course of performing its obligations under this agreement it may receive confidential information, which is proprietary and confidential to the other party.
b) Each party agrees not to use or disclose the confidential information of the other party except to its officers, employees or contractors, and then only to the extent necessary to carry out its obligations under this agreement.
c) Despite clause 5.1(a) and (b) above, either party may use or disclose confidential information only to the extent necessary to:
(i) Comply with any law, binding directive of a regulator or a court order;
(ii) Comply with the listing rules of any stock exchange on which its securities are listed; or
(iii) Obtain professional advice in relation to matters arising under or in connection with this document where the advisors agree to be bound by the same obligation of confidentiality.
5.2 Non Solicitation
a) Client must not at any time during the restraint period, without our prior written permission:
i) solicit, engage, employ, interfere with or endeavor to entice away any entity who is or was an employee, contractor, or supplier of Supplier at any time during this agreement, whether or not they interacted with Supplier in connection with your campaign; or
ii) counsel, procure or otherwise assist any person to do anything referred to in clause 5.2(a)(i).
b) Supplier must not at any time during the restraint period, without our prior written permission:
i) solicit, engage, employ, interfere with or endeavor to entice away any entity who is or was an employee, contractor, or supplier of Client at any time during this agreement, whether or not they interacted with Supplier in connection with your campaign; or
ii) counsel, procure or otherwise assist any person to do anything referred to in clause 5.2(b)(i).
5.3 Restrictions Necessary
Client acknowledge and agree that the restrictions set out are reasonable and necessary for the protection of our trade, business and interests. We do not intend to enter this agreement without the protection of these restrictions.
Indemnity & Limitation of Liability
6.1 Responsibility for Own Actions
Each party agrees to release and hold harmless, indemnify and defend the other party and its indemnified officers against any claim or liability arising from:
a) its own negligence or malpractice, or reckless or intentional misconduct, and
b) its own failure to perform its obligations and responsibilities under this agreement.
6.2 Client Release
Client agree to release and hold Supplier and our indemnified officers harmless against any claim or liability arising from or in relation to:
a) any loss of your data;
b) any services we provide in accordance with the agreed campaign strategy; and
6.3 Client Indemnity
Client agree to release and hold harmless, indemnify and defend Supplier and our indemnified officers against any claim or liability arising from or in relation to:
a) any client materials;
b) any services or deliverables Client approve before publication;
c) any action taken in accordance with our legal obligations; and
d) any breach of your warranties under this agreement.
6.4 Limitation of Liability
To the fullest extent allowable at law:
a) Indirect, special, pure economic or consequential loss (whether arising under contract or tort) are expressly excluded under this agreement.
b) All conditions and warranties which would otherwise be implied to the provision of the services (other than conditions or warranties which cannot lawfully be excluded by agreement), are excluded.
c) Our total liability to Client and your indemnified officers is limited to (at our election): Provision of services to replace or remedy the defect at no charge; orRefunding an amount we have received under this agreement.
d) Our total liability, and that of our indemnified officers under this agreement is capped at the total anticipated campaign spend for the initially contemplated campaign duration (the exact period specified in the schedule, not including any holding over period under clause 2.1).
10. DISPUTE RESOLUTION
10.1 Mediation
a) If a dispute arises between the parties in relation to this agreement, either party may give the other party a written notice that they intend to arrange mediation.
b) The parties must refer the dispute to an independent mediator within 21 days of the written notice.
c) If the parties cannot agree on a suitable mediator, either party may contact the Law Society in their state and request that they provide a mediator.
d) The costs of the mediation must be paid by the parties in equal shares.
10.2 Legal Proceedings
No party may commence court proceedings unless the dispute remains unresolved after 28 days from the date of the written notice provided under clause 10.1(a).
11. GENERAL
11.1 Counterparts
This agreement may be executed in counterparts, and each counterpart will be deemed to be original, and taken together will constitute a single instrument.
11.2 Enduring Clauses
The parties’ rights and obligations under clauses 4.2, 4.4, 5, 6 (for services paid in full), 7.3, 8, 9 and 10 shall survive the termination of this agreement for any reason.
11.3 Entire Agreement
This document contains the entire agreement between the parties and supersedes all previous negotiations or agreements relating to the services.
11.4 Force Majeure
Neither party is liable for any delay or failure to perform its obligations under this agreement to the extent that such failure is caused by anything outside its reasonable control. Nothing in this clause excuses payment of money due.
11.5 Jurisdiction
The laws of the State of Victoria, Australia apply to this agreement and the parties submit exclusively to the courts of that jurisdiction.
11.6 Relationship between the Parties
Nothing in this agreement constitutes a partnership, relationship of agency or contract of employment. It is the express intention of the parties to deny any such relationship.
11.7 Representatives, Successors and Assigns
a) Either party may assign or novate their rights and obligations under this agreement upon 7 days written notice.
b) Upon assignment or novation, the parties’ obligations and benefits under this agreement are binding on and shall benefit their respective representatives, successors and assigns.
11.8 Severability
If any provision of this agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.
11.9 Varying the Agreement
Any variation or amendment to this Agreement must be in writing signed by all parties.
11.10 Waiver
Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
12. DEFINITIONS
12.1 Interpretation
a) Where applicable, all terms used in this document have the same meaning as defined in the schedule to this agreement.
b) Includes, including and like terms are not words of limitation
12.2 Definitions
a) Claim means any claim notice, demand, action, proceeding, litigation, investigation, judgment or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to this agreement or third party.
b) Confidential Information means all spoken, written or electronically stored information belonging to or relating to either party and includes without limitation:
(i) any kind of technical, financial or business information;
(ii) details of any employees, contractors, suppliers, or customers;
(iii) any materials developed under this agreement;
(iv) any intellectual property, concepts, know how and trade secrets;
(v) but excludes information in the public domain (other than in breach of an obligation of confidentiality) or information independently known to the other party.
g) External Marketing Spend means any money allocated or spent on external marketing activities, such as stock images, Ads, promoted posts, and other third party services.
h) Indemnified Officers means, in relation to a party, its directors, employees, contractors, agents and representatives.
i) Insolvency Event in relation to a party means any of the following:
(i) an application is made to a court for an order that the party be wound up and the order is not disposed of within 30 business days or an order is made that the party be wound up;
(ii) an application is made to a court for an order appointing a liquidator or provisional liquidator or a liquidator or provisional liquidator is appointed in respect of either party and that order or appointment is not disposed of within 30 business days;
(iii) the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any classes of its creditors, or it proposes a reorganisation, moratorium or other administration;
(iv) the party resolves to wind itself up, or otherwise dissolve itself, or gives notice of the intention to do so, or is otherwise wound up or dissolved;
(v) any step is taken to appoint an administrator, a receiver, and/or manager or other like person over the whole or any part of the party’s assets or business;
(vi) judgement is entered against the party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days; or
(vii) the party is placed under official management, commits an act of bankruptcy or is convicted of a criminal offence involving dishonesty.
l) Liability means any liability (whether actual or prospective), loss, damage, cost and expense of any description, including legal fees on a solicitor and own client basis.
m) Minimum Campaign Commitment means the period specified in the schedule, during which neither party may end this agreement without cause.
n) Notice of default means a notice in writing that:
(i) states that it is a notice of default under this agreement;
(ii) specifies the default with sufficient detail and particulars;
(iii) gives a reasonable deadline by which the default must be remedied, of not less than 5 business days.
o) Out of Scope Services means any services outside the scope of the strategy services and campaign services, as requested and performed.
p) Required Content means the content, materials, access credential and anything else specified as required content in the schedule, to be provided to Supplier upfront in order for us to provide the services.
q) Restraint Period means the duration of this agreement and the longest enforceable period following termination of:
(i) 12 months;
r) Services means any and all services provided under this agreement, including the initial strategy services, ongoing campaign services, and any out of scope services requested and performed.
s) Start Date means the start date or date of completion of the condition specified in the schedule.
t) Strategy Services means our initial work developing a strategy to achieve the campaign objectives, the scope of which is specified in the schedule.