DIGITAL MARKETING TERMS & CONDITIONS
The client agrees with Aarron Jay Attwell (ABN 18 4204 9988) trading as “XESIV Digital” that in consideration of XESIV Digital agreeing to provide the services to Client the following terms and conditions shall apply:
1. Legal Agreement:
This agreement is a binding legal agreement between Client and XESIV Digital. The agreement constitutes the entire agreement between Client and XESIV Digital in relation to the Services. It does not include any terms and conditions of Client (including on any purchase order or other document submitted by Client) unless agreed to in writing by XESIV Digital.
2. Term of Agreement:
This agreement commences on the start date and is for an indefinite term unless a finish date is specified or the agreement is ended earlier in accordance with this agreement.
3. Services XESIV Digital will provide:
During the term of this agreement, XESIV Digital will:
- provide the Services;
- where a maximum time per month for the provision of the Services, provide the Services for a period of time up to that maximum amount per month;
- commence provision of the Services on the start date;
- if a finish date is specified, ensure that the Services have been provided by the finish date;
- use its best endeavours to ensure the Services are provided in compliance with all relevant Australian legislation;
- provide the Services with care and skill;
- provide support in respect of the Services
- act in Client’s best interests but will not do anything which is unethical or unlawful;
- not provide any legal, financial or taxation advice;
- provide only the resources as required to be provided by XESIV Digital to deliver the Services;
- not be deemed to be in control of Client’s site or project at any time and shall have no responsibility for occupational health and safety (which is the responsibility of Client);
- provide the Services to Client alone and will not regard any other entity as its client in relation to the Services; and
- unless otherwise stated, shall determine at its discretion the personnel who will provide the Services.
4. Additional Services:
At the request of Client, XESIV Digital may provide work and services additional to the Services including (a) any additional services; and (b) updates required as a result of changes to any relevant internet interface or services required in respect of matters set out in clause 5 (“Additional Services”). Client agrees and acknowledges that:
- the provision of any Additional Services by XESIV Digital is subject always to this agreement;
- the fee for any Additional Services is not included within the fee for the Services and will be charged at XESIV Digital’s time based charge out rates; and
- by submitting a quick quote or other form of purchase order to XESIV Digital in respect of any Additional Services, Client agrees to pay for the Additional Services at the rates set out.
5. Limitations on Services:
Client agrees and acknowledges that:
- XESIV Digital has no control over business decisions made by Client based on the results of the Services and will not be liable for any costs or loss incurred by Client as a result of such business decisions.
- XESIV Digital cannot guarantee that the Services provided to Client will result in increased revenue for Client.
- Where the Client experiences business growth and/or expansion due to successful Search Engine Marketing, XESIV Digital make no guarantee that such growth will be sustained indefinitely, and will not be liable for any downturn in the Client’s business or operations.
- XESIV Digital has no control over the policies of internet search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s websites may be excluded from any directory at any time at the sole discretion of the search engines or directories. XESIV Digital will during the term of this agreement resubmit those websites that have been dropped from the search engine index;
- due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, XESIV Digital does not guarantee listing, positions or ranking on search engines for any web page in relation to any particular keyword, phrase or search term;
- some search engines may take as long as 1 to 3 months, and in some cases longer, after submission or resubmission, as applicable, to list and rank websites;
- search engines may stop accepting submissions for an indefinite period of time;
- search engines may re-rank or exclude websites and webpages for no apparent or predictable reason. Often a webpage will reappear without any additional submissions. Should a webpage not reappear, XESIV Digital will, at the cost of Client, re-submit the site based on the current policies of the search engine in question;
- any modification of Client’s website by Client or any third party may impact on the listing or ranking of Client’s website. Any work or services required by XESIV Digital as a result of such modification shall be Additional Services; and
- XESIV Digital will not provide the following services under this agreement (XESIV Digital may at its discretion provide these services as Additional Services at the request of Client):
- (i) support outside Business Hours. In this agreement, Business Hours means 9am to 5pm Perth time on any day except a Saturday, Sunday or public holiday in Western Australia;
- (ii) support of or assisting the client in the use of operating systems, ancillary services or software or other platforms;
- (iii) managing authorised usernames and passwords;
- (iv) installing or managing Client’s security measures;
- (v) support where Service impairment results from installation, uninstallation, or use of other software applications;
- (vi) recovery of damage or data loss arising from hard drive or CPU failure, network failure, misuse, negligence, alteration, improper wiring, malware, viruses or failure to complete daily and weekly backups;
- (vii) support where Client has failed to implement a recommendation from XESIV Digital where in the reasonable opinion of XESIV Digital the recommendation should be implemented to ensure XESIV Digital can properly deliver the Services; or
- (viii) consulting services or accelerated development or advanced customisations of or enhancements to or new features of the Services.
6. Paid Advertising:
Client agrees and acknowledges that, in respect of all pay-per-click advertising, cost-per-click advertising, Google Ads or Google Adwords advertising (“Paid Advertising”),:
- The structure and content of any Paid Advertising account set up within a XESIV Digital account (including but not limited to Google Ads My Client Centre (“MCC”)) is the intellectual property (“IP”) of XESIV Digital. At no point will XESIV Digital give Client direct access to or provide copies of any MCC account. In the interests of transparency, XESIV Digital will provide Client with monthly reports to show the Paid Advertising account performance, along with information showing the amount spent on Paid Advertising clicks.
- Where Client is responsible for making payments directly to a Paid Advertising provider, including but not limited to Google, via automated credit card deductions, Client is solely responsible for ensuring that there are sufficient funds available on the credit card at all times, and that the credit card is within date. XESIV Digital hold no liability for a Paid Advertising provider suspending the Paid Advertising account as a result of not being able to retrieve the necessary funds.
- Due to factors beyond the control of XESIV Digital, XESIV Digital cannot guarantee that an advert placed through Paid Advertising will appear in high ranking positions on target search engines or partner sites, including but not limited to www.google.com, www.bing.com and www.yahoo.com.
- Paid Advertising may be based on an auction bidding system, and if so, XESIV Digital cannot guarantee the set prices of any advert clicked upon, and cost per clicks will vary based on factors beyond XESIV Digital’s control.
- Paid Advertising systems are website traffic generation tools only, and XESIV Digital make no guarantee that once a person visits the Client websites as a result of clicking on an advert that the visitor will make contact with Client for the purpose of engaging a service or buying a product from the client.
- Paid Advertising providers, including but not limited to Google, have very strict advertising guidelines and policies. If an advert is banned by a Paid Advertising provider due to policy violations which result from situations beyond the control of XESIV Digital, XESIV Digital will not be held liable, but will inform Client, and where possible work with Client to achieve a resolution.
- Where XESIV Digital may from time to time make suggestions for improvement of the Paid Advertising, XESIV Digital makes no guarantee that those suggestions will result in increased revenue for Client.
7. Items to be provided by Client:
- provide to XESIV Digital all items and materials to be provided by Client and all information and materials relating to Client’s requirements with respect to the Services, including as regards scope and timing;
- obtain all approvals which are required for the lawful provision and use of the Services; and
- appoint a person to act as Client’s representative, which person shall be deemed to have authority to act on behalf of and bind Client in connection with this agreement.
8. Client Authority, Exclusivity and Warranties:
- Client authorises XESIV Digital to:
- (i) conduct all activities as may be required to perform the Services, including submitting websites to search engines and any other resources or relevant sites; and
- (ii) modify any of Client’s websites, including modifying the metadata of any website, for the purposes of providing the Services;
- (iii) use relevant keywords and phrases, including intellectual property belonging to Client, for the purpose of delivering the Services.
- XESIV Digital will work with Client to minimise any visual impact on Client’s websites caused by the activities set out in clause 8(a).
- During the term of this agreement, Client shall not permit any search engine optimisation provider to:
- (i) perform or deliver any service which is within the Services; or
- (ii) have access to any of Client’s websites.
- Client agrees that XESIV Digital will not be responsible for any of Client’s websites or search engine rankings if Client does not comply with clause 8(c).
- Subject to clause 8(c), if Client is required to give access to Client’s website to any third party Client must give prior notice to XESIV Digital.
9. Client’s Responsibilities:
In order to ensure that XESIV Digital is able to properly deliver the Services, Client:
- must ensure that its computers and communication systems are suitably configured, maintained, and operated so as to enable XESIV Digital to deliver the Services;
- must ensure that Client’s websites are active and accessible by XESIV Digital at all times;
- must notify XESIV Digital each time any modification to Client’s websites is made where that modification may affect the delivery of the Services by XESIV Digital;
- must cooperate with XESIV Digital in:
- (i) performing diagnostic procedures and communicating information in order to facilitate support provided by XESIV Digital;
- (ii) testing its websites to determine whether a given problem has been solved; and
- (iii) implementing workarounds intended to reduce the criticality of a given problem;
- must not install or use software that may, in the reasonable opinion of XESIV Digital, impair the proper delivery of the Services by XESIV Digital;
- agrees to inform all third parties with access to Client’s websites, including webmasters, that XESIV Digital has been engaged to provide the Services;
- warrants to XESIV Digital that Client’s websites are not hosted by free web hosting providers; and
- agrees that if XESIV Digital:
- (i) reasonably determines that Client’s web hosting provider may be part of a ‘bad neighbourhood’; or
- (ii) considers that for optimisation of the Services, Client should change its’ web hosting provider, then Client will, at XESIV Digital’s request, change its web hosting provider.
10. Support Provided:
- XESIV Digital shall use commercially reasonable efforts to provide support but does not guarantee that any defects in the Client’s websites or Services will be fixed by XESIV Digital.
- Client acknowledges that XESIV Digital relies on third party interfaces and databases to deliver the Services and as a result XESIV Digital cannot guarantee uninterrupted access to and use of those third party internet interfaces and databases at all times.
Except as otherwise agreed in writing with XESIV Digital;
- the fee for the Services will be as specified;
- where hourly rates are specified, XESIV Digital will record time spent on the Services in 30 minute blocks. Time spent for shorter periods of time is rounded up to the nearest 30 minute block;
- any fee estimate or quote provided by XESIV Digital will not limit the fees that XESIV Digital may charge unless XESIV Digital has agreed that a fixed fee will be charged; and
- XESIV Digital reserves the right to adjust its time based charge out rates on each 1 January and 1 July by an amount not less than the change in the Consumer Price Index (All Groups) Perth in the preceding six months.
- XESIV Digital reserves the right to change fixed price or recurring monthly charges at any time at XESIV Digital’s discretion. These price changes will only affect Services delivered after the date of the price change, and will not alter any recurring charged services in place at the time of the price change as agreed between XESIV Digital and Client.
- Client agrees that external disbursements are not included in XESIV Digital’s fees. Client agrees to reimburse reasonable business expenses incurred by XESIV Digital in the performance of the Services. XESIV Digital will use its best endeavours to seek authorisation from Client prior to incurring such expenses.
- XESIV Digital agrees to provide Client with tax invoices for all expenses XESIV Digital seeks to have reimbursed.
13. Tax invoices:
- Tax invoices:
- (i) will be issued by XESIV Digital and must be paid on the terms as specified in the invoice;
- (ii) shall be deemed correct unless disputed in writing within 7 days of the date of the invoice; and
- (iii) must be paid in full notwithstanding any counterclaim or set-off Client may claim against XESIV Digital.
- XESIV Digital reserves the right to charge interest at 12% per annum, calculated daily, on tax invoices that are not paid in full and on time.
14. Insurances: Client agrees to procure and maintain at its expense appropriate injury, death and property loss insurance covering XESIV Digital’s personnel while at Client’s site.
15. Confidentiality: XESIV Digital and Client each agree:
- not to disclose or use for an improper purpose any Confidential Information received or obtained from the other party; and
- that each party can disclose Confidential Information received by it if, and to the extent,:
- (i) required by law or required by a Court, stock exchange or regulatory or governmental body; or
- (ii) the information is disclosed on a confidential basis to professional advisers or bankers; or
- (iii) the information is disclosed to a director, officer, employee or agent of the party whose function requires them to have the information; or
- (iv) the information is in the public domain otherwise than through the fault of the disclosing party; or
- (v) the other party has agreed to the disclosure in writing,
- provided a party intending to disclose information under any of paragraphs (i)–(iii) above consults with the other party first. If a party makes any disclosure under any paragraphs (i) and (ii) above it must inform the other party as soon as possible;
- “Confidential Information” means all trade secrets, know-how, financial, marketing, management, technical and other information which is confidential or of a sensitive nature, including information regarding business strategy and processes, but excludes information in the public domain.
- Client agrees that the identity of Client is not Confidential Information and that XESIV Digital may disclose to third parties that XESIV Digital has been engaged by Client.
16. IP: Client agrees that, except as expressly stated:
- XESIV Digital owns all title, ownership, moral, proprietary and intellectual property rights (including copyright), registrable or not, in and to all deliverables, materials, documents, presentations, reports, software, data and analysis prepared or provided by XESIV Digital in connection with providing the Services including the source code and backend tactics used by XESIV Digital to optimise any websites (“Documents”);
- it will not publish or transmit outside of its organisation, nor make copies or reproductions of, any such Document unless approval in writing is given by XESIV Digital; and
- XESIV Digital may use such Documents for XESIV Digital’s technical development and marketing purposes.
17. Licence to Client: For the term of this agreement Client is hereby granted a limited, revocable, non-transferable, non-sublicensable, royalty free licence to use Documents referred to in clause 16 for the sole purpose for which the Services were provided.
18. Licence to XESIV Digital: Client hereby grants XESIV Digital a limited, revocable, non-transferable, non-sublicensable, royalty free licence for an indefinite term to use any of Client’s intellectual property which is used by XESIV Digital in providing the Services including banners, landing pages and Client’s logo, for business development and marketing purposes.
19. Liability and Indemnity: Client agrees that except to the extent caused by a breach of this agreement by XESIV Digital or the negligence or wilful misconduct by XESIV Digital or its officers, employees or contractors, XESIV Digital and its officers, employees and contractors shall, to the maximum extent permitted by law, not be liable to Client or its officers and employees or contractors or any other entity for any Claims whatsoever:
- in relation to provision or non-provision of the Services or arising from any act or omission by XESIV Digital relating to the Services;
- arising from any act or omission of any third party, including the unavailability or performance of any search engine, relevant internet interface or database or the listing or ranking of any Client’s website;
- in relation to the matters set out in clauses 5(a) to 5(h) inclusive;
- in relation to the use by Client (or its officers, employees, agents or contractors) of any Documents;
- in the event that any transaction contemplated by Client does not proceed; or
- in relation to acts or omissions of Client or any third party, and Client shall and hereby does indemnify and hold XESIV Digital and its officers, employees and contractors harmless from all such Claims. In this agreement “Claim” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation for legal costs or special, indirect, punitive or consequential damages, loss of profit or business opportunity or payment of liquidated sums).
- Subject to clause 20(a) and to the maximum extent permitted by law the Services are provided without any warranties of any kind, either express or implied, including warranties of title, non-infringement of fitness for any purpose, accuracy, completeness or currentness. Any warranty which is implied by law or statute is excluded to the maximum extent permitted.
- Nothing in this Agreement may be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any Services pursuant to this agreement of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal law. The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to the supply of the Services by XESIV Digital to Client and cannot be contracted out of, they apply and override any inconsistent provisions in this agreement but only to the extent of the inconsistency.
21. Non solicitation: Client agrees:
- not to, directly or indirectly, employ, solicit, engage or direct for purposes of employment or contracting services any of XESIV Digital’s staff or contractors during the term of this agreement and for a period of 12 months thereafter;
- that if it does not comply with paragraph (a) above, it will pay to XESIV Digital on demand a placement fee of;
- (i) in the case of a XESIV Digital employee, 100% of the employee’s total annual remuneration package from XESIV Digital (including superannuation); or
- (ii) in the case of a XESIV Digital contractor, 100% of the average of the following two amounts (A) the total payments made to or in respect of the contractor over the previous 12 months by XESIV Digital, and (B) the expected total payments to be made to or in respect of the contractor over the subsequent 12 months by XESIV Digital if the contractor had continued to work with XESIV Digital for those 12 months, in both cases as certified by XESIV Digital’s accountant and including all fees and oncosts; and
- that those amounts are a fair measure of the loss that XESIV Digital will suffer if Client does not comply with this clause.
22. Delay/Force majeure: XESIV Digital and Client will each not be respectively liable for any delay or failure in the performance of obligations that arise out of causes beyond their control, including but not limited to electrical outages, internet, communications or computer failures, acts of god, fires, floods, epidemics, riots, strikes, embargoes, earthquakes, severe weather, war, governmental action, and acts or omissions of subcontractors or third parties.
23. Suspension, Expiry and Termination:
- XESIV Digital may suspend the delivery of the Services during any period in which an amount owing by Client pursuant to this agreement is overdue.
- If either party is in breach of this agreement then the party alleging the breach may serve a default notice on the other party setting out the full particulars of the alleged breach and the acts required to rectify the breach. A party may terminate this agreement if:
- (i) it has issued a notice of default and the default alleged therein remains unrectified 14 days after service of the default notice; or
- (ii) to the extent permitted by law, the other party goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or becomes subject to Part X of the Bankruptcy Act 1966.
- Both parties may terminate this agreement by notice to the other this agreement will terminate at the end of the notice period.
- If not terminated sooner, the engagement of XESIV Digital expires at the earlier of the completion of the Services
24. GST: All fees referred to in this agreement do not include goods and services tax (GST). Client must pay to XESIV Digital, on each date Client must make payment for a taxable supply under this agreement, an additional amount equal to the GST payable on the GST free amount of the taxable supply. In this agreement “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
- Certain items cannot be returned or refunded due to their nature. These items include, but are not limited to: Stock photography, music, web hosting, domain names, statistical packages and software, etc.
- If a service has been paid in advance but the service cannot be delivered to the client through no fault of their own but at the fault of XESIV Digital, that client is entitled to a refund of that advanced payment minus services already rendered (calculated at an hourly rate of $150AUD an hour) and minus non-refundables which include, but are not limited to: stock photography, music, web hosting, domain names, statistical packages, software, adspend etc.
- We at XESIV Digital always do our best to ensure that all our customers are happy with the services provided. We also provide detailed documentation at the beginning of any engagement so both parties have a clear understanding of what is (and isn’t) going to happen with any project. In the unfortunate event that any customer is indeed unhappy with the service provided, we will consult with that customer and see if we can come to a resolution together. These situations are addressed on a case by case basis. All customers are protected under the full extent of Australian Consumer Law and XESIV Digital follows the guidelines stated in the relevant acts.
- Cancellations happen so in the event of a cancellation all clients will follow what has been outlined in the contract at the time of signature.
All refund and dispute requests are to be directed to Aarron Attwell on [email protected] or call (08) 9842 9642 and ask for Aarron Attwell directly.
- Reference in this agreement to the singular includes the plural, and to any party to this agreement includes the party and its successor, administrator, personal representative, transferees and assigns.
- A notice to be served under this agreement will be duly served if it is in writing and is sent to the address for each party by certified mail, facsimile, personal delivery or email, provided there is proof of delivery.
- Neither party may assign or transfer any right or obligation under this agreement without the written consent of the other.
- Nothing in this agreement constitutes or creates a relationship of partnership, employment, agency or joint venture between XESIV Digital and Client.
- If any provision or part provision of this agreement is invalid, unenforceable or illegal then it shall be deemed deleted and the remaining parts shall continue to apply with full force and effect.
- This agreement is governed by the law in force in Western Australia. Each party irrevocably submits to the jurisdiction of the courts of Western Australia with respect to any Claim which may be brought at any time relating in any way to this Agreement.
- This agreement may only be varied in writing signed by both Parties.
- Any omission by a party to enforce any provision of this agreement shall not operate as a waiver and will not prejudice the rights of the party to enforce any of the provisions.
- All provisions in this agreement in respect of indemnities, IP ownership, confidentiality and non-solicitation survive the termination of this agreement. This agreement may be exchanged by execution in counterparts and the exchange of executed facsimile or PDF copies shall constitute a binding and complete agreement.