1. Acceptance of Terms
1.1 Unless otherwise agreed in writing, the supply of all Services offered by eMarketing Consultant Pty Ltd (ACN 159 836 414) T/a Growth Digital Marketing Agency and/or its associates, related parties, successors and assigns (collectively referred to as “Provider“) to all Clients, as the term is defined below, shall be governed by these Terms of Service (“Terms“) set herein.
2. Definitions
2.1 In these Terms, the following terms have the following meanings:
Account means the account designated by the Provider for the access, use and administration of the Services on the Online Client Portal of the Website; Client means the individual or organisation whose details are listed in the applicable Proposal/Service Order Form as the purchaser of the Services; Client Website means the website maintained or operated by the Client; Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website; Client Website Copywriting Service means the provision of website content service supplied by the Provider in respect of a Client Website; Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website; Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website; Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website; Confidential Information means, with respect to a party to these Terms: all intellectual property rights, trade secrets, each party’s business, products and services, finances, customer names, sales figures, employee details, pricing methodologies, and any other information relating to each party’s internal operations, plans, policies, and practices and transactions in whatever media; other information identified in writing as confidential by either party; and translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing.
Development Service Links means a final staging web link to the Client Website developed by the Provider; Domain Name Service means the domain name search, registration, parking and renewal service supplied by the Provider; Email Marketing Service means the email marketing service or software provided by the Provider; Pay Per Click Advertising Service means the consulting service supplied by the Provider in respect of online advertising through third party search engines or websites or on Client Websites where costs are incurred or income is earned based on the number of visitors clicking on applicable advertisements; Provider’s Website means https://growthdigital.com.au; Service End Date means: with respect to all Services other than Client Website Design and Development Service, the last date of Service Period; and with respect to the Client Website Design and Development Service, seven (7) days after the Provider supplies the client with the development server links for client’s acceptance and testing; Service Fees and Charges means the fees and charges payable by the Client in respect of a specified Service as specified in the applicable Proposal/Service Order Form, including, without limitation, any applicable interest charges and Taxes thereof.
Proposal/Service Order Form means the order form required to be completed by the Client for the purchase of a specified Service which may be accessed from the Provider’s Website or is given to the Client by the Provider or the Provider’s employee, which details shall include, without limitation: name, address, contact and email details of the Client; Service scope of work or package selection; Service Fees and Charges; payment terms (upfront basis or by way of periodic or progress payments); additional charges (if any); other relevant specifications requested by the Client; and with respect to the Client Website Design and Development Service, applicable milestones reflecting the progress of the development of the Client Website and Client tasks.
Search Engine Optimization Service or SEO Service means the service provided by the Provider to improve the visibility of client’s website in a web search engine’s unpaid results; Service Period means, with respect to each Service purchased by the Client, the duration that Service as specified in Clause 7; Services mean the services to be supplied to the Client under these Terms and as specified in the applicable Proposal/Service Order Form; Social Media Marketing Service means the service provided by the Provider that uses social media to market Client’s product or service; Start Date mean the date of commencement of a Service as specified in the applicable Proposal/Service Order Form; Systems mean the servers, networks, central systems and/or databases of the Provider or third party suppliers through which Client Websites are hosted under the Client Website Hosting Service supplied by the Provider; Tax Invoice means an invoice issued by the Provider and submitted to the Client in respect of a specified Service; Taxes mean any and all taxes, levies, duties, charges, including withholding taxes, penalties, fines or any other levies imposed by any statutory authority under any jurisdiction in connection with the performance of the Services and these Terms; Users mean any persons visiting or viewing the Provider’s Website, any Registered Users of the Provider’s Website, and any other Clients using the Services.
3. Services
3.1 The Provider offers comprehensive website design and development, e-commerce solutions and digital marketing services for businesses and organisations. The Services supplied by the Provider include, without limitation, any or all of the following: Client Website Design and Development Service, including creation of new Client Websites, modifications and redesigns of the design, layout or content of existing Client Websites, development of content management system tools, provision of an e-commerce system, and provision of custom web applications; Client Website Hosting Service; Client Website Maintenance Service; Client Website Copywriting Service; Domain Name Service; Email Marketing Service; Search Engine Optimization Service; Social Media Marketing Service; Pay Per Click Advertising Service; and other new or improved services, functions, features, contents or facilities as offered from time to time.
3.2 In addition to the Services described in Clause 3.1, the Provider also offers technical support for Clients, including assistance on resolution of Client Website issues, bug fixes, and “how-to” guidance.
4. Service Fees and Charges
4.1 Service Fees and Charges for each of the Services are set out on the Provider’s Website or as otherwise agreed in the Proposal/Service Order Form.
4.2 The Provider reserves sole and absolute right to vary such Service Fees and Charges and/or any promotions or discounts thereof, including provision of gratis Services, at any time, and the Provider shall not be obliged to provide any reasons whatsoever for such variation. Notification of all variations shall be given to the Client as soon as may be practicable subsequent to the said variation.
4.3 Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
5. Proposal/Service Order Forms and Subsequent Changes
5.1 The purchase of any or all Services by the Client shall be made through the appropriate Proposal/Service Order Form. Each Proposal/Service Order Form shall be deemed to incorporate the provisions of these Terms.
5.2 For the purposes of these Terms: all Proposal/Service Order Forms submitted by the Client shall be deemed an offer by the Client to purchase Services in accordance with the specifications of the Proposal/Service Order Form and the provisions of these Terms; the Provider shall not be bound by any Proposal/Service Order Forms and may at its sole discretion, review all specifications contained therein and by way of a written notice to the Client, reject or amend the same and/or reject the Proposal/Service Order Form in its entirety. Upon acceptance by the Provider, the Client shall be bound by all specifications set out in the Proposal/Service Order Form, subject to any approved rejections or amendments of the Provider; and a contract for the supply of Services based on such specifications or modified specifications, as the case may be, and on the provisions of these Terms shall be deemed to have occurred when the Provider issues to the Client a Tax Invoice indicating its acceptance of the Client’s offer.
5.3 Any changes to the specifications subsequent to the deemed occurrence of the contract for the supply of Services under Clause 5.2.3 shall be made by the Client only by way of a written request to the Provider and shall be effective only upon written acceptance of the request by the Provider. The Provider is entitled to accept, reject or modify any such requests for changes.
6. Payment of Service Fees and Charges
6.1 Service Fees and Charges for a Service must be paid on an “upfront” basis made together with the submission of the applicable Proposal/Service Order Form by the Client. If only a portion of the Service Fees and Charges or a deposit payment for a Service is required to be made upfront with the remainder of the Service Fees and Charges payable on a progressive or periodic basis, such remainder shall be due and payable by the Client on the date of issue of the relevant Tax Invoice. The Client agrees that for any payments made through Credit Card such as Visa, Mastercard and American Express Cards, the Provider will levy a surcharge on the Service Fees and Charges.
6.3 The Client hereby authorises the Provider to charge by direct debit from the Client’s bank account and/or credit card as specified in the applicable Proposal/Service Order Form on each due date the amount due and payable by the Client under a Tax Invoice.
6.4 In addition to the Service Fees and Charges for each Service, the Provider shall be entitled to impose further charges in respect of the following: any requests for changes made to a Proposal/Service Order Form by the Client and accepted by the Provider in accordance with Clause 5.3; and/or excessive use of the Provider’s technical support service for reasons other than the fault or negligence of the Provider.
6.5 All Service Fees and Charges exclude Goods and Services Tax unless otherwise noted. Any Goods and Services Tax incurred in respect of a Service shall be charged by the Provider at the applicable rate and must be paid by the Client at the same time or together with the relevant Service Fees and Charges.
7. Service Period
7.1 Provided any payment as specified in the applicable Proposal/Service Order Form is made the Service Period for each Service purchased by the Client shall commence on the Start Date and shall end on the Service End Date specified in the applicable Proposal/Service Order Form.
7.2 Any renewal or cancellation of a Service shall be made in accordance with Clause 8 as noted therein for the applicable Service and any suspension or termination shall be in accordance with Clause 15.
8. Conditions for Purchasing the Services
8.1 General: The Client acknowledges and agrees that in agreeing to purchase, or in purchasing any or all of the Services, the Provider shall use its best endeavours to achieve the objective of the Client in availing a particular Service, however, the Client acknowledges that the Provider makes no representation or warranty as to merchantability or fitness for a particular purpose, including any representation or warranty that a Service will be uninterrupted or error free; will meet the Client’s requirements; or 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 the Systems.
8.2 Client Website Design and Development Service: In agreeing to purchase, or in purchasing the Client Website Design and Development Service, the Client acknowledges and agrees that the Client must perform in a prompt manner all tasks assigned pursuant to the Proposal/Service Order Form; must provide reasonable assistance and cooperation to the Provider for the design and development to be completed in a timely and efficient manner; the Provider shall not be deemed in breach of these Terms as a result of a delay caused by the Client; the Client must ensure, at its sole cost and expense, that its current computer systems support the operation of the Client Website; unless the Client Website Maintenance Service is purchased, the Client shall be responsible for initially populating and then maintaining any content or data on the Client Website; unless the Client Website Copywriting Service is purchased, the Client must provide all Client Website Content within two (2) weeks of the Service Commencement Date; the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client; the Client must ensure that the prototype Website is kept confidential at all times; in developing the Client Website, the Provider is authorised to use pre-existing proprietary works owned by the Provider or its related entities, or licensed third-party works (including open source products, server-side applications, clip art, back-end applications, music, stock images, or other copyrighted work) deemed necessary for proper functionality, subject to applicable copyright notices; with the exception of the limited warranty in Clause 13.2, the Provider makes no representations, warranties or conditions relating to the functionality, display, artistry, design or layout of the Client Website, and all Client Website Design and Development services are supplied on an “as-is” basis; and upon payment of 50% of the Service Fees and Charges, the client shall be entitled to cancel the Service prior to confirming the Specifications or within 30 days of the Start Date, whichever is earlier.
8.3 Client Website Hosting Service: In agreeing to purchase, or in purchasing the Client Website Hosting Service, the Client further acknowledges and agrees that all Client Websites are hosted on Systems operated by the Provider or third party suppliers, and scheduled or unscheduled System maintenance may place Client Websites offline for a certain duration; the Provider may, but is not obliged to, archive Client Website Content for disaster recovery purposes, though it remains the Client’s sole responsibility to maintain recent copies of its own Client Website Content, and the Provider is not liable for any incomplete, out-of-date or corrupt content recovered from backups; the Provider or third party suppliers may upgrade, revise, change or migrate the Systems at any time without liability for resulting loss or damage; Client Websites are subject to spam and virus filters maintained by third party suppliers, without liability to the Provider for loss or damage resulting from their use; the Client must conduct virus scanning of any uploaded content and must not upload unlawful, infringing, harmful or impersonating content, bearing sole responsibility for rectifying any content used in error and for all transactions or dealings arising from such content; the Provider may, without incurring liability, remove any Client Website Content it considers to be in breach of these Terms, and may access, preserve or disclose Client Content where required by law or reasonably necessary to comply with legal process, enforce these Terms, respond to support requests, or protect the rights, property or safety of the Systems, Users or the public; the Client is strictly prohibited from using excessive CPU processing, bandwidth, disk space or other resources inconsistent with normal usage, which may result in additional charges, disconnection or termination; the Client grants the Provider a non-exclusive, royalty-free, worldwide licence for the Service Period to digitise, convert, install, upload, process, transmit, publish, display, perform and hyperlink the Client Website Content, and to make archival or back-up copies of it; apart from the Client Website Design and Development Service, Services are automatically renewed at the expiry of the current Service Period for an equivalent term (“Renewed Service Period”), with the Client able to give written notice of discontinuance at any time during the Renewed Service Period, taking effect at the end of the monthly Service cycle; and the Client may not cancel or downscale a Service before the expiry of the current Service Period, and if cancelling early must pay any unpaid Service Fees and Charges for that Service Period as agreed.
8.4 Domain Name Service: In agreeing to purchase, or in purchasing the Domain Name Service for parking a domain name, the Client acknowledges and agrees that the Provider may point the domain name or its domain name server to any of the Provider or its affiliates’ web pages; the Provider and/or its affiliates may place advertising on the Client’s parked page; the Client waives all rights to receive compensation from such use for commercial gain; and upon payment of 100% of the Service Fees and Charges, the client shall be entitled to cancel the Service.
8.5 Pay Per Click Advertising Service: In agreeing to purchase, or in purchasing the Pay Per Click Advertising Service, the Client acknowledges and agrees that the Provider will set up online advertising campaigns and deliver Google paid search traffic to the Client’s website, and will notify the Client if traffic cannot be delivered due to search engine editorial policies, without liability for any resulting loss or damage; the Provider will charge the Client any further fee the relevant search engine may charge, in addition to the agreed Service Fees and Charges; the Service automatically renews at the expiry of the current Service Period on the same terms described in Clause 8.3 regarding renewal, notice of discontinuance and early cancellation.
8.6 Search Engine Optimization Services/SEO Service: In agreeing to purchase, or in purchasing the SEO Service, the Client acknowledges and agrees that the Client must provide all information requested by the Provider within seven days of the request; the Provider will use best practice techniques as used in the industry; the Provider does not control search engine algorithms and results can vary based on the Client’s website history, industry and other factors; the Provider will provide links to other websites to rank the Client’s website for agreed keyword phrases, without responsibility for the content or accuracy of those other websites, and provision of a link does not constitute an endorsement of it; the Client must seek independent expert advice if it has concerns regarding the suitability of the Services; the Service automatically renews on the same terms described in Clause 8.3 regarding renewal, notice of discontinuance and early cancellation; and after the expiry of the minimum term, at least 30 days’ notice is required to cancel the service.
9. Conditions for Using the Services
9.1 In using any or all of the Services, the Client acknowledges and agrees that it may not attempt to override or circumvent any of the usage rules embedded into the Systems or any parts thereof.
9.2 Subject to Clause 10, any materials downloaded or otherwise obtained through the Systems is done at the Client’s own discretion and risk. The Client will solely be responsible for any damage to the Client’s computer system or loss of data resulting from the download of the same.
9.3 The Client must grant the Provider with reasonable direct and remote access to its website, and shall provide such other reasonable assistance as the Provider may request, including providing source code and other statistical, diagnostic and relevant information required to enable the Provider to comply with its obligations under this Agreement.
9.4 The Client agrees and acknowledges that the Provider will make changes to or update the Client’s website to achieve optimum results for the Service availed by the Client. The Client must notify the Provider in writing if it does not agree for the Provider to make any changes or modification to the Client’s Website.
10. Intellectual Property Rights and Ownership
10.1 Systems and Services: Save for any domain names purchased or owned by the Client and/or its related entities, the Client hereby acknowledges and agrees that neither these Terms nor the access and use of any of the Services supplied by the Provider and/or a third party supplier confer any proprietary rights whatsoever to the Systems and the Services, including any intellectual property rights embodied in any feature, operation, software, hardware or other infrastructure; accordingly, all intellectual property rights, title and interests in the Systems and Services, including any IP address, belong exclusively to the Provider and/or the third party supplier; in granting access and use of the Services, the Provider and/or third party supplier is only granting a limited non-exclusive licence for the duration of the Service Period; and the Client may not copy, modify, reverse-engineer or commercially exploit the Systems or Services in any other way.
10.2 Client Website Design, Layout and Content: All intellectual property rights embodied in any designs, layout or content created or developed for, or supplied to, the Client pursuant to the Client Website Design and Development Service are owned as follows: with respect to pre-existing works described in Clause 8.2, by the Provider and/or the relevant third party; and with respect to the source code of the Client Website, by the Provider, subject to any prior third party rights, including source code governed by the terms of a General Public License. The Provider agrees that upon full payment of all outstanding sums due under these Terms or any other agreements between the Provider and the Client, the Provider shall assign to the Client all proprietary rights, title and interests embodied in the custom design, layout and/or content of the Client Website.
10.3 All rights which are not expressly granted to the Client shall hereby be reserved by the Provider.
11. Relationship of Parties
11.1 Nothing in these Terms shall constitute or be deemed to constitute a partnership between the parties herein or constitute or be deemed to constitute the Client as an agent of the Provider for any purpose whatsoever.
11.2 The Client shall have no authority or power to bind the Provider or to contract in the Provider’s name or to create a liability against the Provider in any way or for any purpose.
12. Client General Warranties
12.1 The Client hereby represents and warrants that: the Client is duly authorised to enter into these Terms in accordance with the method or form of authorisation required by its constitution or applicable laws under its jurisdiction of formation or incorporation; when executed, these Terms shall be legal, valid and binding on the Client and enforceable in accordance with their terms, subject to applicable laws, and will not violate or create a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on the Client and/or its property; the Provider has not given, and hereby expressly disclaims to the maximum extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether express or implied, under these Terms or under any other communications between the parties; the Provider shall not be liable for any direct or indirect, consequential or special loss or damages that may arise in respect of these Terms, and the Client has agreed to enter into these Terms based on its own judgment and discretion, expressly disclaiming any reliance on statements or representations made by the Provider; there are no pending or threatened actions or proceedings before any court or administrative agency that could have a material adverse effect on the Client’s performance of its obligations, nor is the Client in default under any material loan, lease or purchase obligation; and all information furnished, and to be furnished, by the Client shall be true, correct and complete.
13. Exclusion of Liability and Client Indemnity
13.1 Subject to the limited warranty under Clause 13.2 in respect of the Client Website Design and Development Service, the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to the Client for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for damage to property, loss of profits or revenue, loss of data, goodwill, and any other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from or arising in connection with the Systems; the Services and the Client’s use thereof; any Client Website Content, whether authorised or unauthorised and whether in original or altered form; and the results achieved, or unachieved, from the use of the Services.
13.2 The Provider hereby agrees, with respect to any Client Website Design and Development Service purchased by the Client, to provide the Client with a limited warranty for a duration of three (3) months, ending on the last day of the third month of the relevant Service End Date. The warranty is limited solely to locating and fixing any bugs occurring on the Client Website, and cannot be enforced if the Client updates or revises, or procures a third party to update or revise, the source code of the Client Website other than through the Provider’s own content management system tools; or if, in the Provider’s sole and absolute discretion, the problem is too severe to be fixed and was caused by reasons beyond the Provider’s control, including the fault or negligence of the Client, its employees or other representatives.
13.3 The Client agrees to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of the Client’s access and use of, or connection with, the Systems; use or misuse of any Services; breach of any obligations under these Terms; or violation of the rights of any person.
13.4 Subject to the provisions of these Terms, if for any reason the Provider is liable to the Client for loss or damage of any kind, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to these Terms, such liability shall be limited only to the total Service Fees and Charges paid by the Client for the Services in the previous three (3) month period.
14. Notices
14.1 A party notifying or giving notice under these Terms must give notice in writing; if directed at the Provider, to the postal address, fax number or email address specified on the Provider’s website or any other address as notified in writing by the Provider from time to time; if directed at the Client, to the postal address, fax number or email address specified in the Client’s Account as updated from time to time.
14.2 A notice given in accordance with this Clause is received: if left at the recipient’s address, on the date of delivery; if sent by prepaid post, five (5) days after the date of posting; if sent by fax, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient’s, mail server within five (5) days after the date of the email.
15. Suspension, Termination and Transfer
15.1 Suspension and Termination: The Provider may, without notice, suspend or terminate the Services or disconnect or deny the Client access to the Services during any technical failure, modification or maintenance involved in respect of the Systems or the Services; or if the Client fails to comply with any provision in these Terms (including failure to pay all Service Fees and Charges due and any other charges imposed), or does, or allows to be done, anything which in the opinion of the Provider may jeopardise the operation of the Systems or Services, until the breach (if capable of remedy) is remedied. If a suspension or termination occurs by reason of the Client’s non-compliance, reactivation of the Client’s Account shall be made entirely at the Provider’s discretion and on any terms the Provider thinks fit, including payment of a reactivation fee. The Client shall remain liable for all Service Fees and Charges due and payable throughout the period of suspension. In the event of a suspension or termination for any reason, the Provider is under no obligation to provide the Client with any copies of Client Website Content or any other information, materials or data stored in the Client’s Account.
15.2 Transfer of Service: The Client agrees that the Service is non-transferable unless the Client obtains prior written confirmation from the Provider consenting to the transfer. The Client must provide such further information of the transferee as the Provider may require to consider the transferee’s financial ability to meet the Terms, and the Provider may in its absolute discretion disagree to transfer the Service.
16. Confidentiality
16.1 Each party agrees that all Confidential Information exchanged between them under this agreement is confidential and must not be disclosed, divulged or otherwise placed at the disposal of any person not being a party to this agreement, except: to employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement; with the consent of the party who supplied the information; if the information was, prior to the execution of this agreement, lawfully in the possession of the recipient through sources other than the party who supplied it; if required by law or stock exchange regulations; or if the information is or becomes generally and publicly available other than through the default of a party who divulges the information.
16.2 The provisions of this clause continue in full force and effect for a period of 2 years after the termination of this agreement.
17. Assignment
The Client is not entitled to assign, dispose or in any way otherwise relinquish possession or control of all or any part of its obligations under these Terms.
18. Entire Agreement
These Terms shall represent the entire agreement between the parties and supersedes all previous agreements, terms, conditions, representations or claims which may have been made or agreed upon between the parties.
19. Governing Law
These Terms shall be governed exclusively by the laws of Victoria, and the parties hereby submit to the exclusive jurisdiction of the courts of that state.
20. Waiver and Severability
20.1 The failure of the Provider to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
20.2 If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.