Terms and Conditions
These Terms are important and should be read carefully. Any questions about these Terms must be directed to us in writing at firstname.lastname@example.org before engaging our services.
Subject to any subsequent agreements you may be required to enter with us, these Terms constitute the entire agreement between you and us and supersedes all prior agreements, conduct, representations and understandings. You confirm you have not entered into this agreement on the basis of any representation that is not expressly incorporated into these Terms.
1 ACCEPTANCE OF TERMS
1.1 We will provide you with a copy of these Terms with a Quote before you engage our services (as listed in clauses 3, 4 and 5) (Services).
1.2 By paying any amount to us in respect to the Services or otherwise instructing us to proceed with the Services in writing, you acknowledge that you have read and understood the Terms and the Quote and agree to be bound by them, and all our other policies.
1.3 Should you request an increase in the level of services on a monthly basis, after receiving the initial Quote, we will provide you with an amended quote and you agree to be bound by the amended quote together with our Terms, as at that date.
2 VARIATIONS TO TERMS
2.1 We reserve the right to update and change these Terms from time to time without notice.
2.2 You will be subject to the Terms in force at the time when you engage our Services, unless agreed otherwise by both parties in writing.
3 WEBSITE DESIGN SERVICE
3.1 Design includes:
(a) setup of WordPress CMS and customisation of a licensed version of the Enfold theme;
(b) unique design across all included pages; and
(c) design of basic business logo (font and icon) if required (or we can use graphic designers to design an advanced logo for additional fees).
3.2 Functionality includes:
(a) all functions available within the Enfold theme;
(b) if additional functionality is requested, this may be outsourced to our web developer partner for additional fees (outside the scope of the quote previously provided to you); and
(c) we may use WordPress plugins – if a specific functionality is required, you may be required to purchase the plugin and licence yourself.
3.3 SEO setup includes:
(a) page title, meta description, H1-3 tags, image alt tags and keyword optimisations (using Yoast SEO plugin) will be performed on target pages;
(b) submission of website URL and your business Name, Address and Phone to x10 business directories (to build out your initial backlink profile);
(c) further SEO work may be required if you want to rank in the top organic search engine results page – this would require a separate SEO campaign.
3.4 Other inclusions consist of (if agreed by us):
(a) setup of a Google My Business/Maps listing and embed this map on your website;
(b) social media links;
(c) use of licensed stock photography from sites such as Shutterstock;
(d) one integration per page i.e. a Mailchimp email signup form, a lead generation contact form; and
(e) setup of Google Analytics tracking.
3.5 Domain name
(a) You will purchase your own domain name and setup an account with a domain name provider.
(b) You will pay the domain name provider for this, not us.
(c) In order for us to provide our Services, we will need access to this account.
3.6 Website hosting
(a) You will be responsible to purchase your own website hosting and set up an account with a web host provider – we can provide recommendations on this (e.g. SiteGround or Flywheel).
(b) You will be responsible to pay the web host provider for this, not us.
(c) In order for us to provide our Services, you will need to provide us with access to this account.
3.7 Email hosting
(a) You will be responsible for your own email hosting, however we recommend a business email through GSuite by Google.
(a) You acknowledge and agree that it is your responsibility to backup your current website and all associated files and configurations before we start any work. You are responsible for ensuring that your website is always active, updated and accessible.
(b) You agree that we are not responsible for any loss of backups or data at any time.
3.9 Website content
(a) You must provide us with all of your own website content, including, but not limited to images, web copy and text, including the text you want on each page, service descriptions, about page, biographies etc (Website Content).
(b) You agree to provide the Website Content in the following formats:
(i) text/copy: Microsoft Word, rich text, Google Pages or Google Drive;
(ii) tables: Microsoft Excel or Google Numbers (Clearly labelled and in correct order);
(iii) images: high resolution where possible (JPEG, PNG files);
(iv) logos: vector format (Illustrator EPS/AI); and
(v) diagrams/maps: vector format (AI) or (JPEG files).
(c) We will use your images or photos if you provide us with them, or stock images if not.
(d) You acknowledge and agree that you are solely responsible for the Website Content you provide us.
(e) You acknowledge and agree that it is your responsibility to conduct any trade mark or copyright searches relating to the Services, unless agreed otherwise with us.
(f) You warrant that you either own or have a licence over the Website Content you provide to us.
(g) You warrant to the best of your knowledge and belief after making all reasonable enquires, that the use by us of any Website Content supplied by you will not infringe any Intellectual Property Rights, as defined in clause 10.3, of any person nor give rise to any liability to make royalty or other payments to any person.
(h) You agree to indemnify us against all losses, liabilities and demands arising from any infringement or alleged infringement of any Intellectual Property Rights by the use by us of any Website Content supplied by you.
(i) We will not knowingly engage in conduct that infringes the intellectual property rights of another party.
3.10 Timeframe to deliver our services
(a) The discussed project timeframe and delivery date will be set after we have received all of your website content, images, text, logo/design files and all other related materials, as requested.
3.11 Requirement before the website goes live
(a) You acknowledge and agree that final project payment, as referred to in the Quote, is required in full in order to take your website live.
(b) You will receive a handover document containing passwords, how to access the website and basic editing guides.
(c) You agree to allow us to insert a weblink in the footer of your website which states, ‘Website by Orion Marketing’ that links to our website.
3.12 After project delivery
(a) After the project delivery date, you acknowledge and agree that you take full possession and responsibility of the design, content of the website, CMS, domain name and website hosting.
(b) You acknowledge and agree that we are not responsible for any copywriting, editing or updating of your website after the project delivery date.
(c) You acknowledge and agree that we are under no obligation to do any further work on your website, after the project delivery date, unless we are contracted to do so.
(d) We are available to undertake further website edits or modifications on an hourly basis, subject to a new Quote being issued and accepted.
(e) You acknowledge and agree that you have the necessary knowledge to maintain your website and that it is not our responsibility to provide this knowledge or support to you after the project delivery date.
4 SEO CAMPAIGN SERVICE
4.1 On-page works may include:
(a) review, recommend & implement internal linking strategy for improved indexing ability;
(b) review page title structure;
(c) reduce page load time through optimising scripts and images to increase indexing speed and page views;
(d) review and rewrite page meta descriptions to remove duplication and promote click through rate;
(e) increase relevance of on page content through effective keyword placement. Effective use of header tag distribution through design template and content in line with web standards;
(f) seek to optimise all on-page ranking factors for all target pages;
(g) review website architecture to ensure minimisation of duplicate content and search engine friendly URL paths where possible;
(h) ensure efficient search engine indexation by amending any broken / redirected URLs, executing a XML sitemap strategy and implementing Google Search Console to closely monitor current and future issues that could impact on quality of website for SEO; and
(i) setup/optimisation and ongoing management of Google My Business/Maps profile.
4.2 Off-page works may include:
(a) competitor link profile analysis to define and target optimum links;
(b) identify and capitalise on missed link opportunities available through current offsite marketing/PR activity;
(c) directory submission to major and niche directories around relevant categories;
(d) quality resource links will be sourced to assist long term organic growth;
(e) targeted sites to be of related industries in nature; and
(f) high quality, themed links.
4.3 Success measurements may include:
(a) keyword rank position;
(b) organic traffic via Google Analytics;
(c) site behaviour Google Analytics; and
(d) conversion tracking.
4.4 Communication and reporting includes:
(a) scheduling email – once at the start of each new month, outline works scheduled to be performed;
(b) output email or notification – as each item of work is completed or if your approval is required;
(c) report email – sent when the cycle has finished and with monthly metrics, outputs and KPIs; and
(d) payment of subsequent month/cycle of work is not dependent on you receiving report for previous month, as it can take one week or more to complete and compile the report and data.
4.5 Link building
(a) We may provide link building services, as specified in the Quote.
(b) The number of links provided is dependent on the SEO budget, the type of SEO work performed and how competitive each keyword is.
(c) We offer no guarantee for the length of time each link will remain live after the point at which it has been confirmed and reported to you.
(d) You acknowledge that we are not liable for the content of those sites. Use of any such linked web site is at your own risk.
(e) The inclusion of any link does not imply endorsement by us of the site.
5 GOOGLE ADS SERVICE
5.1 Google Ads Service includes:
(a) the creation, customisation of a Google phone call, web-click or similar advertising campaign;
(b) your account creation;
(c) campaign creation;
(d) keyword selection;
(e) Ad creation, based on keyword selection and your business;
(f) establishment of a campaign budget; and/or
(g) ongoing support of the Ad campaign (on a monthly basis and subject to payment of the monthly fees, as indicated on the quote provided).
5.2 Google Ads terms & conditions
(a) You acknowledge you have read and agree to the Google Ads terms & conditions found here – https://support.google.com/adspolicy/answer/54818?visit_id=637302167371106364-772978879&rd=1.
5.3 We act as your agent
(a) We will act as your agent for the purposes of creating, managing and operating an account with Google or other advertising channels as necessary to provision our Service.
5.4 Your content
(a) You agree to provide us with content such as, any logos, images, slogans, art, contact details or other materials or information (Your Content), required in order to carry out the Google Ads Service and you agree that we are permitted to reproduce, copy, modify and otherwise use as necessary to provide the Google Ads Service.
(b) You agree that we may add Your Content (as required) to Google or other advertising channel interfaces, as necessary to provide our Services.
(c) You acknowledge and agree that you are solely responsible for Your Content.
(d) You acknowledge and agree that it is your responsibility to conduct any trade mark or copyright searches relating to the Services, unless agreed otherwise with us.
(e) You warrant that you either own or have a licence over Your Content you provide to us.
(f) You warrant to the best of your knowledge and belief after making all reasonable enquires, that the use by us of Your Content supplied by you will not infringe any Intellectual Property Rights, as defined in clause 10.3, of any person nor give rise to any liability to make royalty or other payments to any person.
(g) You agree to indemnify us against all losses, liabilities and demands arising from any infringement or alleged infringement of any Intellectual Property Rights by the use by us of any Your Content supplied by you.
(h) We will not knowingly engage in conduct that infringes the intellectual property rights of another party.
5.5 Publishing an ad campaign
(a) Once we have created a campaign, we will automatically publish the ad headline and text variations to Google. You acknowledge and accept this may occur without your prior approval being requested, and you authorise us to publish in this manner.
(b) Once published, you will have the opportunity to review the campaign and provide us with any edits or revisions.
(c) If you have objections to the campaign, you must immediately notify us via email and specify the reasons for your objections. We will investigate any issues raised and seek to clarify or resolve them with you.
6 ADDITIONAL WORK
6.1 Any requested additions to our Services, made after you have received and accepted our Quote (Additional Work) will incur additional charges or fees.
6.2 You agree that Additional Work shall be billed at $80 per hour + GST and payable in accordance with clause 15.1.
6.3 All Additional Work must be submitted and approved by both parties in writing by email.
7.1 General disclaimer
(a) We provide our Services on an “as-is” and “as available” basis and whilst every effort is taken to ensure the information provided throughout the provision of the Services is accurate, we make no representations and give no guarantees or warranties about the currency, suitability, reliability, timeliness and/or accuracy of our Services.
(b) You acknowledge and agree that we, our employees, affiliates and representatives are not responsible for any consequences, undesired or otherwise, that may flow from your engagement of our Services.
(c) We cannot and do not make any guarantees about your ability to achieve results or earn any money by engaging our Services. You acknowledge that there is an inherent risk and uncertainty in any business enterprise or online activity and agree there is no guarantee that you will achieve results or earn any money as a result of engaging our Services.
(d) Any testimonials and examples of our Services, wherever published (online or in print) are not to be taken as a guarantee that you will have the same or similar results.
(e) We expressly disclaim any and all claims arising from any representations made, whether express or implied, or reliance upon any representations made in relation to our recommendations, or information supplied to you. You also acknowledge and agree to hold us harmless for any loss suffered as a result of our recommendations and information supplied in connection with our Services.
(f) Any documents or templates we provide you are in
7.2 Website design services disclaimer
(a) We shall not be liable, under any circumstances whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, that result in any way from your use or inability to use the online services or that result from errors, defects, omissions, delays in operation or transmission, hacking, downtime, hosting failure, or any other failure of performance of the website, servers or the software.
(b) We make no warranties or representations of any kind, whether expressed or implied for the Service we are providing.
(c) You agree that should we undertake the Website Design Services dependent on third party services, including but not limited to 3rd party APIs, website services and libraries (e.g. Twitter API, Google Maps API, Facebook API), we cannot be held responsible for changes made to the third party service in question. This includes, but is not limited to, removal of support services, or changes the way in which a service is implemented. Should any further work be required as a result of such a change, we will be required to quote and charge for the additional work on a case by case basis.
(d) We do not guarantee that the Services:
(i) provided under these Terms will be uninterrupted or free from errors;
(ii) will meet your requirements, other than as expressly set out in this agreement;
(iii) will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of ours; or
(iv) will produce any particular results, data, sales or other return.
7.3 SEO Services disclaimer
(a) We currently provide the SEO Service to our customers on a monthly subscription model based on the level of support and on-going optimisation that is required (or per project).
(b) We shall provide you with our SEO Service that is aimed, but not guaranteed, to optimise predefined keywords and phrases, however, you agree to abide by the terms and conditions set forth herein and in each of our policies and procedures, as may be amended by us from time to time.
(c) Our SEO Service is not guaranteed to produce results, but will be performed to the best of our knowledge and ability.
(d) We do not provide any guarantees as to your website keyword ranking and whether the works carried out will benefit you.
(e) You acknowledge and agree that Search Engines are third party systems with unknown variables, algorithms and indexing decisions that can change at any time and without notice over which we have no control. New sites and competitor sites may be being optimised and submitted continually. We will use best efforts, techniques and accepted standards to improve your Search Engine Ranking, but cannot guarantee number one rankings (or any number rankings) of your website on any major Search Engine using your desired keywords. You further acknowledge that the website’s ranking with a particular keyword will rely on both the relevancy of that term on your pages, and the popularity of that term on other websites.
(f) You acknowledge and agree that it is possible for your website keyword rankings to go backwards, if this were to happen, we would be in no way liable for this or any loss suffered by you and you acknowledge and agree that no refunds or discounts will be provided.
(g) You acknowledge and agree that we are not responsible for changes made to the website by other parties (including you) that adversely affect the search engine rankings of your website.
(h) You acknowledge and agree that SEO is governed by many factors which are outside our direct control. Although Google’s organic results are displayed on other search engines, the work that we carry out is aimed at increasing visibility and boosting ranking on Google only. It is not possible to give a 100% guarantee for any specific keyword result or rank as a result of the SEO campaign.
(i) You agree that we may from time to time during the Service, propose changes to any website owned or operated by you in respect of which the SEO Services are being provided, including, without limitation, to suggest adjustments to your website in the event that search engine algorithms change, and which we consider might assist you in improving the ranking of your website.
(j) You acknowledge and agree that search engines vary in the time taken to index and include website submissions in their search results and that it may take several months for the performance of the SEO Services to have any noticeable effect on your website’s rank or position in the search result of search engines.
(k) You acknowledge and agree that search engines may vary their search and ranking algorithms and policies at any time, refuse to accept the submission of any website or otherwise exclude any website from their directories at any time without reason.
(l) You acknowledge and agree that nothing in these Terms shall constitute an express or implied warranty or guarantee by us:
(i) concerning the results or success that may be obtained from the use of the SEO Services;
(ii) as to the accuracy, reliability or content of any information contained in or provided through the SEO Services, or, for the avoidance of doubt, any information provided by us in any advice, report or communication to you;
(iii) that the provision of the SEO Services will result in the ranking of your website improving;
(iv) that the provision of the SEO Services will result in an increased amount of traffic or users to your website;
(v) concerning any market conditions (whether favourable or not) that may be in existence at the commencement of the SEO Service will continue; and/or
(vi) that the provision of the SEO Services generally, or any software utilised by us to provide the SEO Services, will not be subject to, or result in, either errors and/or delays.
7.4 Google Ads service disclaimer
(a) You acknowledge and agree that we are not responsible for any delays in providing our Service, which may occur as a result of your failure to respond as requested or required.
(b) You acknowledge and agree that we will need to limit your access to the Google Ads account while we manage your campaign, to ensure we are able to fully control and optimise your campaign outcomes. This means you will not be provided access to the Google Ads account access, unless this is ‘read only’ access.
(c) You acknowledge and agree that we have no control over the advertising polices of Google with respect to the sites and/or content that it accepts now or in the future. Your campaign and ad variations may be rejected or excluded at any time at the sole discretion of Google in line with their policies.
(d) You acknowledge and agree that we make no warranty that the our service will generate any increase in sales, business activity, profits or any other form of improvement to your business.
(e) You acknowledge and agree that we are not responsible for any of Your Content contained in your campaign, or links in your ads that direct a user to your website or landing pages. We are also not responsible for any content contained on your website or landing pages. You are solely responsible for ensuring your campaign complies will all applicable Laws and regulations, and does not infringe any third party’s rights, at all times.
8 YOUR OBLIGATIONS
8.1 During the delivery of our Services, you agree to:
(a) respond promptly to our communications in relation to the Services;
(b) provide, within a reasonable amount of time, accurate, complete and current information or documentation reasonably required by us to perform the Services; and
(c) act in good faith.
9.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the recipient by the other party, its representatives or advisers), or these Terms and Conditions, except:
(a) where the information is in the public domain as at the date of these Terms and Conditions (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
(b) if the Recipient is required to disclose the information by applicable law or the rules of any other document with statutory content requirements, provided that the Recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under these Terms and Conditions or is required to give effect to these Terms and Conditions;
(d) if disclosure is made to its personnel to the extent necessary to enable the Recipient to properly perform its obligations under these Terms and Conditions or to conduct their business generally, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
(e) where the disclosure is required for use in legal proceedings regarding these Terms and Conditions; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
9.2 Each Recipient must ensure that its personnel comply in all respects with the Recipient’s obligations under this clause.
9.3 Without limiting clause 9.1 and 9.2, you agree not to disclose our fees to any third party.
9.4 This clause survives termination or expiry of these Terms.
10 INTELLECTUAL PROPERTY AND MORAL RIGHTS
10.1 Intellectual Property Rights in Contract Materials and Existing Materials
We agree that:
(a) you will own all rights in and to the Contract Materials, as defined below, including any Intellectual Property Rights which subsist in the Contract Materials or which may be obtained from the Contract Materials created from the date you engage our Services; and
(b) to the extent necessary to give effect to this clause, we will assign all of the Intellectual Property Rights in all Contract Materials to you.
(c) We retain ownership over the Existing Materials, as defined below, and you acknowledge that you do not acquire any ownership rights by using the Existing Materials.
(d) In order to fulfil the SEO Service, some part the Contract Materials may be provided to a 3rd party website and you provide us with the advanced authority to do so. You acknowledge that the terms and conditions of that website may require that the 3rd party obtains ownership over that particular piece of Contract Material and you agree to grant the 3rd party ownership.
10.2 Moral Rights
(a) To the extent permitted by applicable Law, we unconditionally and irrevocably:
(i) without limiting sub-clauses 10.2(a)(ii) and (iii), consent to the following acts or omissions in respect of all Contract Materials created by us in the course of providing the Services:
(A) any use of the Contract Materials that does not identify us as the author;
(B) falsely attributing the authorship of the Contract Materials or any content of the Contract materials to you;
(C) materially altering the style, format, colours, content or layout of the Contract Materials and dealing in any way with the altered Contract Materials;
(D) reproducing, communicating, adapting, publishing or exhibiting the Contract Materials, or
(E) adding any additional content or information to the Contract Materials; and
(ii) waive all of our Moral Rights in the Contract Materials.
Contract Materials means materials, including but not limited to, works, ideas, concepts, designs, websites, inventions, developments, improvements, systems, accounts created for you or other materials or information created, made or discovered by us:
(a) in the course of providing our Services; and/or
(b) as a result of using your resources (including the Confidential Information and Intellectual Property Rights).
Contract Materials do not include our work methodologies, reports, sources, third party websites and the links contained therein, licensed software, programs, accounts belonging to us or created for other clients, stock photography licences, licences to third party service providers which we may provide to you from time to time in relation to our Services.
Existing Materials means materials, including, but not limited to, our works, work methodology, reports, ideas, concepts, designs, inventions, developments, improvements, stock photography licences, licences to third party service providers, licensed software, accounts belonging to us or created for other clients, systems, other materials, information, sources, programs, accounts, created, made or discovered by us prior to providing our Services to you or outside the scope of our Services that we use or supply in the course of the provision of our Services.
Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, circuit layouts, plant varieties, business and domain names, inventions and confidential information and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include:
(a) all rights in all applications to register these rights;
(b) all renewals and extensions of these rights; and
(c) all rights in the nature of these rights, such as Moral Rights.
Moral Rights means:
(a) rights of integrity of authorship or performership;
(b) rights of attribution of authorship or performership;
(c) rights not to have authorship or performership falsely attributed;
(d) conferred by the Copyright Act 1968 (Cth); and
(e) rights of a similar nature that exist, or may come to exist, anywhere in the world.
10.4 This clause 10 survives termination or expiry of these Terms.
11 TRADE MARK NOTICES
11.1 The trade marks, logos, and service marks displayed on any documents we provide you to denote our brand are either registered or unregistered trade marks of ours (our Marks). Our Marks, whether registered or unregistered, may not be used in connection with any product or service that does not belong to us, in any manner that is likely to cause confusion with customers, or in any manner that disparages us.
11.2 Nothing concerning the provision of our Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any our Marks without our express written permission.
11.3 You agree that damages may be an inadequate remedy to a breach of these Terms and acknowledge that we will be entitled to seek injunctive relief if such steps are necessary to prevent violations of our intellectual property rights.
12 RIGHT TO SUSPEND, TERMINATE AND REFUND
12.1 We reserve the right to suspend or terminate your use our Services if you breach these Terms, as determined by us in our sole discretion.
12.2 Either party may terminate your use of our Services by providing to the other party a minimum of 30 days’ written notice. In this case, you may:
(a) retain our Services during the notice period; or
(b) not retain our Services for some or all of the notice period, and make a payment in lieu of notice for the part of the notice period for which our Services are not retained.
12.3 Refunds are not provided for our Services, other than in accordance with the Australian Consumer Law, as set out in Schedule 2 to the Australian and Competition Act, 2010 (Cth).
12.4 Any initial deposits paid to us for the provision of the Services to you are non-refundable.
12.5 Final payments are non-refundable after at the completion of our Services.
12.6 Any refund requests will be assessed on a case-by-case basis, in accordance with the costs associated with the Service delivered by us, or otherwise where we determines in our sole discretion that genuine value has not been received or is not able to be received by you.
13.1 You acknowledge and agree that we may at all and any times provide our Services to other Clients in the same or similar industry as you, unless otherwise agreed in writing.
13.2 We do not provide our Services on an exclusive basis.
14.1 All fees for our Services are in Australian Dollars (AUD).
14.2 All fees are exclusive of GST, unless indicated otherwise.
14.3 We reserve the right to modify, cancel and limit any Service or work at any time.
15.1 We will send you invoices for our Services in the manner stated in the Quote and you agree to pay the invoices within 5 business days of receiving such invoices.
15.2 All invoices must be paid in full, in accordance with clause 15.1, before we provide our Services.
15.3 In relation to the Website Design Services, you acknowledge that you must pay the final payment stated on the Quote in order for your website to go live.
15.4 In relation to the Website Design Services, all prices are valid for 30 days from the date in which the quote was given.
15.5 All deposits and fees paid are non-refundable after project commencement.
15.6 Regarding our Google Ads Service, the monthly fee for this service and the monthly budget to be spent with Google (Media Spend Budget) is specified in the Quote provided.
15.7 The Media Spend Budget will be paid directly to Google. While you will set an upper limit on the Media Spend Budget, given the nature of Google Ads payments (and the Ads “bidding” process), you acknowledge and agree that the amount charged for a specific campaign strategy may change month to month.
15.8 If you fail to pay our fees when due, as indicated on the invoice, you acknowledge that we reserve the right to suspend or terminate the delivery of our Services. We will not be liable for any loss suffered by you as a result of such suspension or termination.
15.9 We reserve the right to on-sell or otherwise authorise a debt-collection or other authorised agency to collect any amount not paid by you.
15.10 You must pay us all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
16 LIABILITY IS LIMITED
16.1 We provide the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by Law. Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the services that are not expressly set out in these Terms to the maximum extent permitted by Law.
16.2 Without limiting the generality of clause 16.1, we expressly exclude any liability in contract, tort or otherwise for any injury, damage, loss, delay or inconvenience caused directly or indirectly by your use of our Services.
16.3 Subject to the other terms of this clause, our maximum aggregate liability owed to you in for any loss or damage or injury arising out of or in connection with the supply of our Services under these Terms, including any breach by us of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you under these Terms in the one month period preceding the matter or the event giving rise to the claim.
16.4 The disclaimers, limitations of liability and indemnities within these Terms do not exclude rights that may not be excluded by law, including but not limited to, those rights under the Australian Consumer Law.
16.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option, to the resupply of the Services or the payment of the cost of resupply.
16.6 Subject to the other terms of this clause, we exclude any liability owed to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill or reputation or loss of use or corruption of data or information.
16.7 This clause applies to the fullest extent permitted by Law and shall survive termination of these Terms.
17 YOUR INDEMNITY
17.1 You agree to indemnify and hold us, our officers, agents, partners, directors, shareholders, employees and subcontractors, harmless against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by us arising out of or in connection with:
(a) your use of our Services;
(b) any claim made against us or you by a third party arising out of or in connection with the provision of our Services and/or these Terms;
(c) any breach of these Terms by you, including any failure to pay any fees on time;
(d) claims that your business’ products or services are defective, injurious, harmful or violate the rights of any third parties;
(e) claims that your advertising materials do not meet relevant legal requirements or breach a relevant Law;
(f) any reliance by you or a third party on our Services or any advice or information provided in connection with the provision of our Services and/or these Terms;
(g) the enforcement of these Terms; and
(h) any negligent act, omission or wilful misconduct on your part.
17.2 You must make payments under this clause in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law.
17.3 This clause survives termination of these Terms.
18 FORCE MAJEURE
18.1 We will not be in breach of these Terms or liable to you for any Loss incurred by that other party as a direct result of our failing or being prevented, hindered or delayed in the performance of our obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.
18.2 If a Force Majeure Event occurs, we will notify the you (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
18.3 On providing the notice in the above clause, we will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, we will continue to use all reasonable endeavours to perform those obligations.
18.4 The performance of the affected obligations will be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
18.5 References to a Force Majeure Event in this clause means: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, cyber-attack, service attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence or other natural disaster;
(d) epidemic, pandemic, health emergencies, disease;
(e) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(f) interruption or failure of utility services (including the inability to use public, private telecommunications networks, servers or third party hosting platforms); and
(g) the acts, decrees, legislation, regulations or restrictions of any Government Agency;
however does not include a lack of funds.
18.6 References to Loss in this clause means: any loss, liability, cost, charge, expense, Tax, Duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
19 NO DISPARAGEMENT
19.1 At all times, you must not make any public or private statement or comment, whether oral or in writing, which in our reasonable opinion is adverse to the interest, reputation or commercial standing of or is in any respect a disparaging remark or representation about us and/or any of our Services nor any statement that is false and does or has the tendency to damage our reputation of by any method including but not limited to any social media platform or review website anywhere in the world.
19.2 Should you breach this clause, you hereby indemnify us in accordance with clause 17 above.
20 USE OF THE PROJECT FOR PROMOTIONAL PURPOSES.
20.1 You grant us the right to use the Contract Materials provided to you while delivering our Services for promotional purposes and/or to cross-link it with other marketing venues developed by us, but this excludes the right to use Confidential Information, including databases provided to us.
20.2 You agree that we may link to your website from our website and social media profiles and showcase your website, our Services provided to you, your Contract Materials and your business logos as part of our promotion or portfolio.
21.1 If any provision of these Terms is deemed invalid by a Court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
22 NO ASSIGNMENT
22.1 You cannot transfer or assign your rights in accordance with these Terms, without our prior written consent.
22.2 We may assign or transfer our rights and obligations under these Terms at any time, upon prior written notice to you of at least 4 calendar weeks.
23.1 We are free to sub-contract any of our obligations under these Terms, but such sub-contracting will not release us from our liabilities under these Terms.
24 BINDING ON SUCCESSORS
24.1 These Terms shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
25 DISPUTE RESOLUTION
25.1 If a dispute arises between the parties in relation to these Terms, the dispute must be dealt with in accordance with this clause.
25.2 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
25.3 In the case of claims against us, all notices are to be provided to email@example.com, as soon as practically possible, no later than 5 business days after the delivery of our Services.
25.4 We will then investigate the matter and provide you with a response to your claim within 10 business days.
25.5 If the dispute is not resolved by agreement within 10 business days of the Second Party receiving the notice referred to above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further 5 business days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.
25.6 Once a mediator is appointed, the parties agree that:
(a) The costs of the mediator shall be borne equally between the disputing parties.
(b) The chosen mediator shall determine the procedures for mediation.
(c) The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
25.7 If the parties have not mediated a resolution of the dispute within 10 business days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it considers fit in relation to the dispute.
25.8 Nothing in this clause prevents a party from commencing proceedings seeking urgent interlocutory relief from a court of competent jurisdiction to hear the matter, if, in that party’s reasonable opinion, it is necessary to protect their rights.
25.9 Despite the existence of a dispute the parties must continue to comply with their obligations under the contract.
25.10 This clause survives termination of these Terms.
26 APPLICABLE LAW
26.1 These Terms shall be construed in accordance with and governed by the laws of New South Wales, Australia. You consent to the exclusive jurisdiction of the courts in New South Wales to determine any matter or dispute which arises between us.
27 YOUR FEEDBACK
27.2 If you have questions or comments regarding these Terms or our Services, please email us at firstname.lastname@example.org. © Progressive Legal Pty Ltd (ACN 607 068 708) trading as Progressive Legal (2020) and Orion Marketing Pty Ltd (ACN 642 107 560). All Rights Reserved. These terms and conditions were last updated 11 August 2020.