The Online Director – Terms and Conditions
Standard Terms and Conditions
1. Services – Subject to clause 5b), The OD agrees to provide the Services to the Client on a non-exclusive basis for the Term.The OD shall only be required to provide additional services (being service other than the Services) if agreed in writing between The OD and the Client.
2. Prices and Quotations – a) Unless otherwise agreed by The OD, a Quotation is open for acceptance for 30 days from the date of the Quotation. Acceptance of the Quotation must be in writing and signed by the Client (at which time it is binding). Until the Quotation is accepted, The OD reserves the right to withdraw or vary any part of such Quotation for any reason whatsoever. b) Acceptance of the Quotation shall constitute an acceptance of these terms and conditions (and any special conditions contained in the Quotation) and no variation, whether contained in the acceptance or otherwise, shall apply unless agreed and accepted by The OD in writing.c) The OD may vary the Quotation after acceptance if: (i) the Client Provided Information which was provided to The OD for the purposes of the Quotation is incorrect, inaccurate, inadequate or incomplete; (ii) the Client requested that The OD provide additional services (being services other than the Services); (iii) any cause beyond The OD’s control causes the necessary variation; (iv) the Client is in breach of these terms and conditions; d) The Fees, unless indicated otherwise, are quoted exclusive of any GST. If GST is applicable to any supply made under or in connection with these terms and conditions, The OD may, in addition to any fees or consideration payable or to be provided under these terms and conditions, recover from the Client an additional amount on account of GST, such amount to be calculated by multiplying the value of the consideration payable or to be provided by the Client for the relevant supply by the prevailing GST rate.
3. Fees a) The Client must, as agreed with The OD, pay the Fees for the provision of the Services either: (i) monthly in advance with the first payment being due on the Start Date and thereafter on the Anniversary Date; (ii) quarterly in advance with the first payment being due on the Start Date and thereafter on the Anniversary Date; b) Invoices for the payment of the Fees will be issued to the Client on or before the Anniversary Date. c) If The OD’s invoices are not paid in full in the manner in clause 3(a) The OD may, in its absolute discretion, seek and recover from the Client and the Client agrees to pay: (i) interest on the invoice at the Interest Rate accruing daily from the date the invoice is due and payable; (ii) any costs, fees or expenses incurred in collecting or attempting to collect any amounts not paid by the Client by the and/or costs, fees or expenses incurred by The OD in exercise any other rights powers or remedies, including but not limited to debt collection agency’s expenses and solicitor’s expenses on a full indemnity basis. iii) If the Term is less than a period of three (3) months, the Fees shall include a cancellation Fee which will be equal to the monthly contracted service Fee unless waived by The OD in writing. d) The Client is required to provide direct debit details to The OD. The Client consents and agrees to The OD using those details to charge the Client’s debt card or credit card (as applicable) in payment of the Fees, this is inclusive of accounts with Post Payment ‘Credit Terms’ that exceed more than 14 days past the Anniversary Date. e) Without limiting the above, if The OD’s invoices are not paid in full in the manner in clause 3(a), The OD may in its absolute discretion, without limiting any other rights available at law; (i) suspend provision of the Services; (ii) institute legal action for recovery of outstanding balance of the invoice and costs incurred; and/or (iii)vary the Quotation , and The OD shall not be liable to the Client for any loss or damage resulting directly or indirectly from such actions. f) Where the client has opted for The OD to invoice Third Party Media Platform (TPMP) Fees The OD will, to the best of its ability spend the agreed amount. At the termination of the account The OD will reconcile TPMP fees spend and received. If outside of normal quarterly reconciliation schedule a fee of $66 will be applicable. Should the reconciliation result in a positive balance The OD will continue to run the campaign until the spend has been exhausted. g)The Client acknowledges that invoices for Fees cannot be allocated to specific Services, including ad groups or keywords, products or services, and the Fee will be levied at an overall campaign level covering all Services provided to the Client.
4. Commencement – (a) Subject the Client paying the Fees in accordance with these terms and conditions, The OD shall commence the provision the Service on the Acceptance Date unless otherwise agreed in writing between The OD and the Client. (b) Dates specified in the Quotation for the delivery and/or completion of the Services are estimates only. The OD will use its best endeavors to deliver the Services by the dates specified in the Quotation but it does not warrant that such delivery date will be met. (c) If no time period is specified in the Quotation then The OD shall perform the Services in a commercially reasonable time period. (d) The OD shall advise the Client of any anticipated delay in the commencement or completion of the Services upon such delay becoming apparent to The OD. (c) In the event the Services are not completed by the date provided for by this clause or the Quotation, the Client acknowledges that it shall not be entitled to any damages (liquidated or otherwise) in respect of such delay.
5. Provision of Services – (a) The Client acknowledges and agrees that the Services will be provided by The OD to the Client: (i)in accordance with this Agreement; (ii) will be of acceptable quality and shall be performed with due care and skill in a professionally competent and workmanlike manner; (iii) based on the Client Provided Materials; (iv) using any best practice methods that The OD considers appropriate; (v) in accordance with, and subject to, the SEM Standards Policy and any other policies or standards relating to the provision of the Services; (vi) in accordance with, and subject to, the terms and conditions and standards of the relevant search engines; and (vii) that TOD retains an absolute right of refusal in relation to all advertisers and campaigns. (b) The Client acknowledges and agrees that the following are preconditions to the provision of the Services: (i) the Client must have an existing website and/or web page; (ii) the Client must provide The OD with current contact details; (iii) the Client must provide The OD with all relevant business information to assist in carrying out the Services; (iv) the Client must meet the TPMP in relation to the content and operational standards of the Client’s website which is the subject of the Services and The OD may edit the Client’s copy keywords or suspend any listing which are deemed by The OD (acting reasonably) to be in breach of the TPMP; and (v) the Client must suspend all existing TPMP accounts (either self-managed or through an agent). (c) To the extent that the Client’s existing website is based on content owned by a third party, the Client warrants that all necessary approvals and consents have been obtained for the use of such content in the Client’s website. (d) The Client may suspend the provision of the Services by The OD for a period up to 90 days by written notice and the Client agrees that the monthly management fee specified in the Quotation will continue to be payable during any period of suspension.
6. Reliance on Services – The Client acknowledges and agrees that: a) The OD provides no guarantee as to any particular outcome of the Services, including in relation to any increased business, online leads or search engine positioning; b) the Services will be provided based on the Client Provided Materials and to the extent (if any) that the final or actual product, outcome or circumstance is different than those as provided in the Client Provided Materials, then the outcome of the Services may differ from those final or actual product, outcome or circumstance; c) all reliance on the Services and any information or advice provided in connection with the Services is at the Client’s own risk; and d) the Client is responsible for its own business decisions and must make its own independent assessment of the risks, benefits and suitability of any act, action, undertaking, venture or transaction contemplated by or in connection with the Services and any information or advice provided in connection with the Services.
7. Exclusion of Liability – (a) Except for these terms and conditions and to the maximum extent permitted by law,The OD makes no warranties or guarantees, whether express or implied, in connection with its performance of the Services or the use of the Services by the Client. To the maximum extent permitted by law: (a)The OD shall not be liable for any claims, expenses, losses, damages and costs (including any incidental, special and /or consequential damages or loss of profits) made, suffered or incurred by the Client: a) as a result of any delays in commencing or completing the Services for any reason; b) The OD shall not be liable to the Client for any statements, representations, guarantees, conditions or warranties not expressly contained in the Agreement any reliance by the Client on any outcomes arising from the provision of the Services; c) as a result of any loss of business or negative publicity or decrease in lead generation or search engine positioning caused by the provision of the Services (except to the extent that such loss is caused solely and directly by the negligence of The OD); d) as a result of any information in the Client Provided Materials being incorrect, inaccurate, inadequate or incomplete; e) The OD being unable to read or access any of the Client Provided Materials; f) as a result of a Force Majeure Event; or g) otherwise in connection with the undertaking of the Services by The OD, notwithstanding any negligence by The OD, its directors, officers, employees, agents or subcontractors.The OD shall not be liable to the Client or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income, loss of production, loss of actual or potential business opportunity or loss to reputation or any penalty that may be imposed on the Client) arising directly or indirectly from the performance or non-performance of the Services, their use or misuse, or provision of the Services under these terms and conditions; The Client agrees to indemnify and forever hold harmless The OD, its employees, directs and assigns against all liability, loss, damage an expenses of any nature, including legal fees, arising out of the Services of the publishing, distribution, or transmission or any advertisement submitted by or on behalf of the Client or the linkage of any advertisement to any other material.
8. Limitation of Liability To the maximum extent permitted by law, if and to the extent that The OD’s liability to the Client is not or cannot be excluded, The OD’s liability is limited (at the option of The OD) to: a) the re-supply of the Services; or b) the payment of the cost of having the Services provided again.
9. Client Provided Materials – a) The Client acknowledges and agrees that in providing the Services, The OD will be using, interpreting and relying on the Client Provided Materials (and the Client grants The OD a license to use the Client Provided Materials for the purposes of providing the Services). The Client acknowledges that The OD will not be undertaking any independent verification of the accuracy or completeness of any of the Client Provided Materials. The Client further acknowledges and agrees that if any information in the Client Provided Materials is incorrect, inaccurate, inadequate or incomplete such information may have a corresponding effect on the accuracy of the Services. b) The Client represents and warrants that the Client owns or validly licences all Intellectual Property in the Client Provided Materials, that the Client is able to provide The OD with the Client Provided Materials for use in connection with the Services and that the use of the Client Provided Materials by The OD in performing the Services will not infringe the rights of any third party and/or that all required consents and approvals have been obtained to permit the performance of the Services.
11. Attendance at Client Premises or Property – a) If requested by The OD and in order for The OD to provide the Services, the Client agrees to provide The OD, its directors, officers, employees, agents and subcontractors with access to the Client’s premises or property and any equipment and facilities located at the Client’s premises or property in the manner and as reasonably required by The OD to undertake the Services. The Client must ensure that the Client’s premises or property is safe and suitable for access, complies with all of the Client’s occupational health and safety requirements and must provide The OD, its directors, officers, employees, agents or subcontractors with any applicable safety training before entering the Client’s premises or property. The Client must advise The OD of all relevant circumstances regarding the Client’s premises or property and the areas required to be accessed and agrees to inform and keep The OD informed of all relevant environmental concerns, hazards, on site protection, occupational health and safety requirements and other safety matters in relation to the Client premises or property during the undertaking of the Services. The Client agrees that The OD is not obliged to commence or complete the Services until such time as The OD is satisfied that the Client’s premises or property and the relevant areas required to be accessed are safe and suitable for access. The Client agrees that if and to the extent The OD determines the Client has failed to advise The OD of all relevant circumstances regarding the Client’s premises or property or has otherwise failed to comply with this clause, the price set out in the Quotation may be revised by The OD to take into account any additional costs or undertaking the Services as a result of such failure. b) In exchange for the Client complying with clause 12(a) above, The OD will comply with and will procure that its directors, officers, employees, agents and subcontractors comply with all of the Client’s reasonable requirements or directions relevant to The OD’s, its directors, officers, employees, agents or subcontractor’s attendance at the Client’s premises or property including without limitation compliance with the Client’s health and safety policies and any other policies and procedures the Client indicates are relevant.
12. Subcontracting – a) The OD may at any time, in The OD’s absolute discretion and without the Client’s consent or approval, subcontract any part or all of the Services, on such terms and conditions as The OD may determine. b) To the extent that all or any part of the Services has been subcontracted to a subcontractor, The OD will not be liable to the Client for the acts, defaults, and negligence of any subcontractor, and for the avoidance of doubt, such acts, defaults and negligence are not deemed or taken to be The OD’s acts, defaults or negligence.
13. Employee Solicitation –The Client shall not, unless TOD agrees in writing otherwise, solicit any employees ofThe ODfor a period of six (6) months from the date this Agreement is terminated.
14. Independent Contractor – The Client agrees that The OD is a contractor independent of the Client’s control and that the Provision of Services under these terms and conditions will not give rise to any fiduciary, agency, trust, employment or other relationship recognised at law or inequity as giving rise to forms of specific rights and obligations.
15. Intellectual Property – (a) The Client acknowledges that any Intellectual Property owned or licensed by The OD in relation to the provision of the Services (including any software, methodologies or systems, other than any Intellectual Property in the Client Provided Materials) remains vested in The OD or The OD’s licensors notwithstanding any provision to the contrary in this Agreement. (b) The OD agrees that all Intellectual Property in and to the Client Provided Materials remains with the Client but that the Client grants to The OD a royalty free, non exclusive licence to use such Intellectual Property for the purpose of carrying out the Services.
16. Term and Termination – (a) This Agreement commences on the Acceptance Date(unless otherwise agreed in writing by The OD and the Client) and shall continue on a perpetual basis at the end of each Term for a further Term unless either The OD or the Client terminates the Agreement in accordance with these terms and conditions.(b) Both The OD and the Client may terminate this Agreement with or without cause at any time by providing the other with 28 days prior written notice. Such notice must be provided on the Anniversary Date and, if provided between Anniversary Dates, it shall be deemed to be provided on the next Anniversary Date. The Agreement shall automatically terminate after 28 days from the date written notice is given under this clause (Notice Period). During the Notice Period, The OD shall provide the Services in accordance with the Agreement (unless the Client elects not to receive the Services),the Client shall pay the Fees (if paid monthly, the monthly amount and, if paid quarterly, one third of the quarterly amount notwithstanding that the Services are only being provided for the Notice Period) regardless of whether the Services are provided to the Client during the Notice Period and the Client shall continue the observe its obligations under the Agreement. (c) Should the Client terminate the account in accordance with this clause they can do so at a limit of one (1) cancellation in a twelve (12) month period. (d) The OD may terminate this Agreement immediately by written notice to the Client in the event that the Client breaches this Agreement and, in such case, the Agreement shall terminate upon service of such notice on the Client and The OD may suspend the provision of Services with effect on and from that date
17. Indemnity – The Client shall indemnify and hold harmless The OD from and against all claims, damages, costs (including without limitation legal costs on a full indemnity basis), losses, liabilities and expenses caused by the Client’s acts, omissions, negligence, breach of duty or breach of the Agreement.
18. Publicity and Marketing – Both The OD and the Client may with the consent of the other (which consent must not be unreasonably withheld) make public announcements or release marketing material that refers or relates to the Services or any part of the Services. Both The OD and the Client have the right to review any such announcement or marketing material prior to providing consent.
19. Insurance – The OD will obtain such insurance and on such terms as it determines is reasonably necessary for the undertaking of the Services.
20. Confidentiality – a) The Client and The OD each agree to ensure that the Confidential Information of the other (Discloser) is kept confidential. A party who receives the Discloser’s Confidential Information (Receiver) must not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information of the Discloser, in whole or part, to any third party unless that third party is also bound by confidentiality on terms that are substantially the same as, or at least as onerous as, the terms owed by the Receiver to the Discloser under these terms and conditions or use of any of the Confidential Information of the Discloser for any purpose other than exercising its rights or fulfilling its obligations under these terms and conditions, without the prior written consent of the Discloser. b) The Client agrees that it will not disclose or provide or summarise or refer to the software or any processes used in performing the Services without, in each case, The OD’s prior written consent (such consent not to be unreasonably withheld).
20. Governing Law – These terms and conditions shall be governed by the laws of South Australia and The OD and the Client each irrevocably submit to the exclusive jurisdiction of the courts of South Australia.
21. Entire Agreement – The Agreement sets out the entire agreement between The OD and the Client regarding the Services and supersedes all previous negotiations, commitments and agreements about the Services.
22. Variation – The Client agrees that The OD may vary these terms and conditions and any relevant policies and standards from time to time by providing the Client with written notice of the variation.
23. Trustee – If the Client enters into this Agreement in its capacity as trustee of any trust, then the Client is bound both personally and in its capacity as trustee.
24. Assignment – The OD is free to assign its rights under the Agreement at any time without providing notice and without consent. The Client may, with the prior written consent of The OD, assigns its rights under this Agreement. The OD is under no obligation to act reasonably when deciding whether or not to give consent.
25. Inconsistency with Quotation – To the extent that these terms and conditions are inconsistent with the terms of the Quotation, the terms of the Quotation will prevail.
26. Definitions The terms set out below shall have the following meanings when used throughout these terms and conditions: Agreement means these terms and conditions and the Quotation; Acceptance Date means the date that the Client accepts the Quotation; Client means the party specified as the Client in the Quotation; Client Provided Materials means any materials, data, specifications or other information supplied by the Client to The OD in connection with the Services, including (but not limited to) the Client’s website; Confidential information means any non-public or proprietary information concerning either party’s business, financial information, strategies, methods or processes; Fees means the fees specified in the Quotation, being the cost for the provision of the Services; Google Fees means the fees charged by Google; TPMP Fees means the fees charged by Third Party Media Platforms; Force Majeure Event means an event beyond the control of The OD or the Client (as the case may be) and that could not be avoided by the exercise of due care and diligence, including without limitation acts of God, inclement weather, government actions, industrial actions, acts of terrorism or war; Intellectual Property means all intellectual property rights, whether registered or not, and whether capable of registration or not, anywhere, including without limitation: a) rights in respect of or in connection with (including rights to apply for the registration of) any copyright, patents, petty patents, inventions, trade marks, service marks, design rights or eligible layout rights; b) know how, processes, business plans and concepts; and c) Confidential Information, Interest Rate means 2% above the standard business loan rate (variable) issued by BankSA; Anniversary Date means: (i) in the case of monthly payments, the same date as the Start Date each and every subsequent calendar month; (2) in case of quarterly payments, the same date as the Start Date and each and every three (3) calendar months after the Start Date; Quotation means the covering letter or quotation accompanying these terms and conditions and any special conditions contained in such quotation or covering letter; SEM Standards Policy means the TOD Search Engine Marketing Standards Policy provided to the Client; Services means all the services specified in the Quotation; Start Date means the date The OD is to commence providing the Services to the Client; Term means the term specified in the Quotation and The OD means The Online Director Pty Limited ACN 603 297 758.