Effective August 2018
Terms in the below Service Terms have the same definition as those terms defined and used in the General Terms and Conditions.
1.1 The Company shall deliver web and design work (“Web Design Services”) as outlined in the Contract and the site parameters confirmed with you (“Site Parameters”).
1.2 Where the Company is developing a new website, the website will be developed and optimised for the most current browsers. Full care is taken to test the function and style of the website in older browser versions, yet we cannot guarantee full 100% compatibility for all browsers. The latest browsers include IE9, IE10, IE11, Latest Versions of Google Chrome, Firefox and Safari for MAC.
1.3 For compatibility with specific browsers/versions additional costs will apply. Please note that not all visual elements can be reproduced the same across each browser as some browsers do not support the latest CSS3 / HTML5 elements.
1.4 The Client will be granted access to the Content Management System (“CMS”) for the purposes of uploading content and maintaining the site. Upon receipt of full payment, The Client will inherit full rights and ownership of the website and its design. Until such time the website will be hosted on the Company’s servers and the site may not be copied or replicated and no ftp access will be granted.
1.5 The Company retains the right to make portfolio use of the website or parts thereof after the website has been placed on the Client’s web server.
1.6 The title of all goods produced as a result of this project does not pass to the Client (or its separate Clients) until all money owed to the Company by the Client has been paid. The website will be hosted on the Company’s server until full payment is received.
1.7 The Client must designate a single authority for all project approval of designs, content and development as required to complete the project detailed.
1.8 The Client agrees to the nominal time frames confirmed in the design and development process. The time frames are offered as a nominal expectation for each function under normal circumstances. The Company will use best endeavours to complete the work within the given project time frames, however fluctuating workloads, available resources and client availability may change these parameters and the client will be notified accordingly. Other factors, such as the amount of content the Company is responsible for uploading and the degree of customization required to facilitate interactive features or ecommerce solutions will vary.
1.9 When hosting of the website is included, the Company shall take all reasonable measures to maintain the uptime and integrity of the website. The company is not liable for any damages or costs nor responsible for any work to correct and / or restore the site in the event of, but not limited to, malicious attack, hacking or virus and malware incursions.
1.10 The Client is responsible to the Company irrespective of any separate agreement(s) between The Client and its separate clients.
1.11 Where the Client has implemented any changes to the website including but not limited to, editing functional code, deletion of files, installing third party components or changing file permissions, the Company will charge the client at a rate of $150 per hour (+ GST) to rectify and/or recover the website.
1.12 The Client warrants that it has the right to enter into this Contract. The Client certifies that they own or have obtained appropriate any and all necessary licenses and permanent rights for any assets supplied by the Client to the Company.
1.13 The Client indemnifies the Company and its subcontractors against any and all claims, lawsuits, costs and expenses, including reasonable legal costs, arising in connection with the website. This indemnification includes but is not limited to content obtained by the Company on behalf of the Client (“Web Site Content”).
1.14 Any and all Web Site Content that the Client is to supply for the web site shall be delivered to the Company within the first 7 days of project commencement. The Client shall proofread and edit such Web Site Content prior to delivery to the Company. The Company agrees that any Web Site Content supplied by the Client, whether for the web site or in relation to the business purposes for its development, shall be treated as confidential and neither disclosed to third parties nor used in any way other than for the development of the web site. At the completion of work, the Company shall return to Client the Web Site Content supplied by the Client.
1.15 The Company reserves the right to terminate the agreement in any of the following circumstances:
1.16 The early cancellation clause (termination for convenience) in the General Terms do not apply to these services. The following provisions will apply instead:
| Date of cancellation | Termination fee |
|---|---|
| Before you receive the first draft of the website design | 50% of Total Contract Value for a Fixed Term Contract |
| After you receive the first draft of the website design | 80% of Total Contract Value for a Fixed Term Contract |
| After completion of the review process | Total Contract Value for a Fixed Term Contract |
1.17 The Client agrees that should the Company undertake the Web 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), the Company 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, the Company will be required to quote and charge for the additional work on a case by case basis. There are no refunds available on Web Design Services provided by the Company.
1.18 This Contract is subject to the jurisdiction of the State of Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts of the State of Victoria.
1.19 The Client may not offer any form of employment to Company staff whilst using the Company Web Design Services, or within 12 months of ceasing those Web Design Services.
1.20 The client is expected to respond to all requests and queries made by the Company. The Company will provide deadlines for the expected response if it is required in less than five business days. If no deadline is provided, then the default of five business days is applied.
Web Site Content supplied by you
1.21 You must supply to us all required Web Site Content you want us to use in the project, and all other content and materials we reasonably request.
1.22 The Company, in its sole discretion, reserves the right to develop your site in the event that the Company does not receive your Web Site Content within seven (7) working days of having requested it. If The Company elects to build your site without first receiving Web Site Content from you, standard template content will be used which can be changed by yourself using the CMS once the site is handed over to you.
1.23 You must supply all Web Site Content in the following digital formats/methods:
1.24 If we consider it to be necessary, we will develop a production schedule for the project in consultation with you (“Project Schedule”). We will use reasonable commercial endeavors to carry out the project in accordance with that timetable.
1.25 If you delay in providing Web Site Content or in providing feedback we request, then this may result in:
Post-Implementation Warranty (28 days)
1.26 The Fees for website development include the provision of a limited warranty for a period of 28 days following website launch (“Warranty Period”).
1.27 The warranty covers a 28-day period and commences from the date of the client approves and launches the website. The warranty includes any issues raised within this time that were part of the original development and scope. It does not include any bugs caused by a new version of the targeted website’s hosting environment, client’s browser updates or update to a third party API.
1.28 It is the responsibility of the client to collate a list of bugs as above and provide them to the Company before the end of the Warranty Period. The project manager will schedule a date for when the bugs will be addressed. The client will be provided with a release candidate build to verify that the bugs have been rectified, after which the website will be published to the live environment.
1.29 The client is free to report mission critical, high severity bugs, limited to those bugs which go the heart of the commercial purpose of the website, including those bugs which result in the vendor being unable to transact or contact the merchant (“Severity One Bugs”) during the warranty period at any time. Severity One Bugs will be treated as urgent and will be fixed as soon as possible including an unscheduled release to the live environment. Reporting Severity One Bugs does not affect the one scheduled warranty build/release.
1.30 In the event that the Company does not receive any final changes to be made to the site from you within 10 (ten) working days of having requested such details from you, the final payment will instantly become due and payable and the Company will hand over your site to you.
SEO Services means the Search Engine Optimisation (SEO) services supplied by us to you for the purpose of having the website found and listed by search engines for the key phrases in searches and attempts to improve the ranking of the website (“Your Web Site”) in the search engines when the key phrases are searched.
Service
2.1 You and WME shall agree on the key phrase or key phrases (depending on the SEO Services that you have elected to obtain from us) in respect of which we will provide the SEO Services (as the context requires, depending on the SEO Services that you have elected to obtain from us) (“Agreed Keyphrase/s”).
2.2 You agree to provide us with any information, material, excerpts of or links from or to any content (“Your Web Site Information”) on your web site reasonably requested by us, to assist us with providing the SEO Services to you. You acknowledge and agree that failure to comply with this clause 2.2 will amount to a material breach of contract and enable us to terminate the SEO Services with all applicable remaining Fees immediately due.
2.3 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 Web Site in the event that search engine algorithms change, and which we consider might assist you in improving the ranking of Your Web Site (“Optimisation Change/s”).
2.4 You hereby authorise us to develop a link exchange program whereby links to and from Your Web Site, and other websites and/or industry guides and/or directories, are established, and you hereby appoint us as your agent for this purpose. We agree to use all reasonable commercial endeavours to ensure that we do not insert links to and from Your Web Site to or from obscene, defamatory or sexually explicit websites and/or industry guides and/or directories.
2.5 We agree that we will not, and will not recommend that you, cloak any pages or hide same colour content on same colour background or otherwise knowingly use spam methods in an attempt to improve the ranking of Your Web Site in connection with the provision of the SEO Services.
2.6 If you agree to provide us with File Transfer Protocol access (“FTP access”) to Your Web Site, we agree not to make any Optimisation Changes to Your Web Site, without your prior written consent to such Optimisation Changes.
2.7 In addition to clause 2.6, if you agree to provide us with FTP Access to Your Web Site (but not otherwise), you expressly grant to us a licence to cache the file and content of Your Web Site, including data and content supplied by you and/or third parties, whether or not Your Web Site is hosted by our supplier. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to us. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
2.8 In the event that you do not agree to provide us with FTP Access, we agree that any Optimisation Changes will be provided by us to you in writing.
2.9 We agree to provide you with monthly written ranking reports with respect to the Agreed Keyphrase/s (“Benchmark Report”).
2.10 If you request additional changes to Your Web Site other than those we have recommended or request any additional services beyond the scope of what is agreed with you then those additional changes or services will be subject to an additional change fee of $150 (plus GST) per hour.
2.11 You acknowledge and agree that:
2.12 At the end of the minimum term of a Fixed Term Contract, you will continue to be billed on a monthly basis until a new agreement is agreed upon between your account manager and yourself.
2.13 The early cancellation clause (termination for convenience) in the General Terms do not apply to these services. The following provisions will apply instead:
| Date of cancellation | Termination Fee |
|---|---|
| Before you receive the brief of the engagement | 50% of Total Contract Value for a Fixed Term Contract |
| After you receive the brief of the engagement | 80% of Total Contract Value for a Fixed Term Contract |
| After completion of the review process | Total Contract Value for a Fixed Term Contract |
2.14 Any benefit gained from the services will continue only as long as You pay for the Services. You understand and agree that after termination of this agreement, WME may terminate or cancel all off-page activities used to provide the Services to you. You agree that WME is not liable to you for any costs, loss or damages arising from any actions or omissions of WME following termination of the Services.
Progress Guarantee
2.15 In this section, the following words have the following meanings:
The Company guarantees to achieve the Progress Goals within the period of the Progress Milestones according to the Campaign Details, subject to any breach by you of your obligations under clause 2.2. In the event that a Progress Goal of the guarantee is not met, the Company agrees to continue to provide the SEO Services free of charge until the Progress Goal is achieved, up to a maximum free of charge period of 1 month (“Free of Charge Period”).
At the conclusion of any 1 month long Free of Charge Period, the Company will be permitted to terminate the Agreement immediately by providing you notice in writing.
This guarantee does not limit any rights the Client has under the Acts. The term of any Fixed Term Contract will be extended by the period the SEO Services are provided free of charge.
The guarantee/s offered, if any, are determined prior to the campaign commencing. The Client acknowledges that pricing for the Service” may vary depending on the type of guarantee offered.
This clause applies in addition to the General Terms.
The guarantee/s do not apply in the following circumstances:
Your Warranties
2.16 You warrant that:
Our General Disclaimer of Warranties
2.17 To the extent permitted by law and excluding the guarantee given in clause 6.14, neither WME Group, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a “Relevant Party”) of either WME Group or any Relevant Party, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the SEO Services or any equipment provided, and all such warranties are hereby excluded.
2.18 You acknowledge and agree that nothing in this agreement shall constitute an express or implied warranty or guarantee by either us or a Relevant Party:
2.19 You acknowledge that although we may suggest Optimisation Changes to you in connection with providing the SEO Services, neither us nor any Relevant Party take any responsibility for Your Web Site or Your Web Site Property. Accordingly, you agree that you shall at all times be solely responsible for Your Web Site and Your Web Site Property notwithstanding the provision of the SEO Services to you by us or our Relevant Party.
2.20 Without limiting the above, you acknowledge that our SEO Services may require us to use, interface with or input information into a Relevant Party’s systems (including companies such as Google and Yahoo!) and you agree that we have no liability to the extent that the Relevant Party is unable to provide its services to you.
Indemnity
2.21 You will indemnify and defend WME Group and all directors, officers, employees, and agents of WME Group and any Relevant Party (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
Roll-over of Contract
2.22 At the end of the term of a Fixed Term Contract, you agree that your agreement will roll-over on a monthly basis without notice to you.
Service
3.1 The PPC Service includes the creation, customisation of a Google phone call or web-click AdWords™ advertising campaign and ongoing support of the PPC campaign (on a monthly basis and subject to payment of the monthly Fees).
3.2 The creation and customisation of this PPC Service includes the following:
3.3 In provisioning the PPC Service, we may require the use of content (including any logos, pictures, slogans, art, contact details and other materials/information you provide in connection with the PPC Service, or which are uploaded/added by you directly through your use of the PPC Service) which you:
3.4 We will enter your PPC Content (as required) into Google or other advertising channel interfaces.
3.5 You acknowledge you have read and agree to:
3.6 You appoint us as your agent for the purposes of:
3.7 Prior to commencement of this PPC Service, we will agree with you the Fee that we will charge for managing your campaign, the minimum term for the campaign (which will be considered to be the term of the Fixed Term Contract), target advertising keywords (“Ad Keywords”) and a monthly budget to be spent with Google (“Media Spend Budget”).
3.8 You will pay to us the monthly Fee and the agreed Media Spend Budget. Media Spend Budget monies will be paid directly to Google. Whilst you will set an upper limit as part of your agreement with us, given the nature of PPC payments (and the PPC “bidding” process) the amount charged for a specific campaign strategy may change month to month. You therefore agree that we may:
3.9 We will implement the campaign with Google and you appoint us as your agent for the purposes of creating, managing and operating an account with Google. If the monthly amount spent with Google is less than the agreed Media Spend Budget, the unused amount will be transferred to the Media Spend Budget for the next month. At the end of the campaign, any unused Media Spend Budget will expire.
3.10 Completion of the campaign build and launch time depends upon your responsiveness to our requests. When requested, you must provide us with website information, visitor statistics, suggested Ad Keywords for key phrase testing and any copy suggestions for ad creation. We are not responsible for any delays in provisioning the PPC Service which may occur as a result of your failure to respond as requested or required.
3.11 We will need to limit access to the Google AdWords account for the duration of your campaign being managed to ensure we are able to fully control and optimise your campaign outcomes. This means that you will not be provided Google AdWords account access unless this is ‘read only’ access.
3.12 You agree and accept that should you not have a website and your PPC Service plan does not include the creation of a landing page (a one-page website with content reflective of your website, or if you do not have a website, your advised business) (“Landing Page”), your campaign may be limited to phone-call based ads only, unless you request we create a Landing Page (at additional cost).
3.13 At the end of the minimum term of your Fixed Term Contract, you will continue to be billed on a monthly basis until a new agreement is agreed upon between your account manager and yourself.
Publication
3.14 Once we have created the campaign, we will automatically publish to Google and other applicable advertising channels. You acknowledge and accept this may occur without your approval being requested, and you authorise us to publish in this manner. Once published, you will have the opportunity to review the campaign and provide us with any revision requests.
3.15 If you have objections to the campaign, you must immediately notify us via email and specify the reasons for your objections. We will investigate those reasons and, where we consider such objections to be reasonable, genuine issues raised in good faith, attempt to resolve.
Acknowledgements
3.16 You acknowledge 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 may be rejected or excluded at any time at the sole discretion of Google in line with their Google AdWords Policy http://support.google.com/adwordspolicy.
3.17 We will use best endeavours to ensure that your advertisement will appear in Google searches, however we make no warranty that the PPC Service will generate any increase in sales, business activity, profits or any other form of improvement to your business.
Intellectual Property
3.18 You are solely responsible for ensuring that you have all appropriate rights and licenses to the PPC Content that you supply and which is utilised in the campaign. We reserve the right, in our sole discretion, to refuse to use any PPC Content we believe is objectionable or which we believe may infringe upon the IPR of others, or would be in breach of our Acceptable Use Policy, however, we do not warrant that we will be able to screen all PPC Content to ensure that it is non-infringing.
3.19 You agree to indemnify us against any claims arising out of or relating to your PPC Content, Ad Keywords and your use of the campaign. You expressly grant us, and our supplier, a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence to use (and where necessary, cache) your PPC Content. You agree that any such use or caching is not an infringement of any of your IPR or any third party’s intellectual property rights.
3.20 Additionally, you grant us, and our supplier, a worldwide, perpetual, royalty-free, and sub-licensable license to:
3.21 You represent and warrant that:
3.22 You agree you are responsible for obtaining any agreements and/or consents required of any third parties in connection with the grant of any licences to us (or our supplier) under this Contract.
3.23 To the extent your campaign contains any copy, images (including logos or photos), or any other content or material from our library of content (a repository of pre-produced photos, images, logos, videos and other materials (which may include licensed third party materials)) (“Content Library”), then we grant you a royalty-free, non-exclusive, revocable, worldwide license to, for the term of the PPC Service:
3.24 Other than permitted under clause 3.23, you may not copy, modify, distribute, decompile, sell, rent, sublicense or translate any Content Library or grant any other person or entity the right to do so. Ownership of all Content Library shall remain at all times with us or any Relevant Party.
3.25 Any campaign delivered by us under the PPC Service are without any representation or warranty as to your ability to obtain trademark, copyright, or similar protections in any jurisdiction throughout the world. We expressly disclaim:
3.26 We are not responsible for any PPC Content contained in your campaign (for clarity, this includes Ads (including search engine marketing advertisements created by us as part of the PPC Service – Ads will be setup to link to either your Website (if applicable), or to a Landing Page) (“Ads”) or Landing Page (if applicable)). 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.
3.27 Your access to, and continued use of, the PPC Service is contingent upon, and at all times subject to, payment of the monthly fees for the PPC Service. Except as otherwise expressly stated in this Contract, no other rights, titles or interests in the campaign are granted to you.
Indemnity
3.28 You agree to indemnify and hold harmless WME Group, and their affiliates and their respective officers, agents, partners, directors, shareholders, suppliers, and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses, including reasonable attorneys’ fees, which any such party may incur arising out of or relating to:
Cancellation and Termination
3.29 You may terminate the PPC Service at any time after the initial minimum term by providing one (1) months prior written notice. Cancellation will automatically terminate all access to the campaign. Refunds do not apply for cancellations under this clause 3.29.
3.30 On cancellation or termination of the PPC Service, all licenses granted to you under this Contract shall immediately terminate.
3.31 In addition to any other obligation in this Contract, upon cancellation or termination of this PPC Service, we may delete all data, including any PPC Content, files (including, without limitation, email files, if applicable) from our systems (including any storage media) without any liability to you whatsoever.
Services
4.1 You agree that, with regards to the service (“Social Media Services”):
Social media advertising
4.2 With regard to social media advertising, you agree that:
Third party sites
4.3 With regard to third party sites:
Term & Termination
4.4 You agree that:
5.1 You warrant that:
5.2 You are solely liable for the use you make of the content services that we provide to you and you are wholly responsible for any loss, cost, expense, demand or liability we may suffer arising from your use of the content services.
5.3 You acknowledge that the content that we provide to you:
5.4 We will make all reasonable commercial effort to deliver the first draft of content within 15 business days of your delivery of material. You must provide feedback within 15 business days of receipt of the draft for any revisions required. If you fail to provide feedback within this time, the work will be considered completed in full and no further revisions will be performed. All fees will be immediately due and payable.
‘Content Creation Services’ refers to Photography, Videography and Animation services (“CC Services”).
6.1 All Services
6.1.1 Responsiveness
| Milestone | Maximum Response Time |
|---|---|
| Scope Definition | 3 business days |
| First Draft | 5 business days |
| Post Production | 5 business days |
6.1.2 Delivery of final assets
6.1.3 Backups
Following the final supply of the digital assets to you it will be your sole responsibility to ensure that you keep a secure backup of these CC Deliverables. We will not be able to maintain ongoing backups of these CC Deliverables (or any other files or documents related to the engagement) following the final delivery of the CC Deliverables.
6.1.4 Fees
Fees may be charged upfront upon agreement with you. No services will be provided until these fees are received.
6.1.5 Revisions
Due to the subjective nature of content creation services and the high cost of creation of these services we do not allow any change of mind revisions which fall outside the initial scope provided in the introduction call.
6.1.6 On site visit
You may nominate a maximum of 1 location which the photographer will visit to come and capture the requested photos (“Site Visit”). This location cannot change prior to 24 hours of the scheduled visit.
6.1.7 Delivery of final assets
6.1.8 Intellectual Property
6.1.9 Project Schedule
6.2 Photography Specific Terms
6.2.1 Audio
This service is not available as part of the final photos supplied.
6.3 Videography Specific Terms
6.3.1 Storyboarding scripts
You may provide a suggested storyline and ideas for videos to be used, however it may not be possible to incorporate all of the suggestions into the video if there are factors outside of our control. If you wish to incorporate someone into the video who is not available for the shoot then they will need be excluded or a Rescheduling Fee charged for a new date for the Site Visit.
6.3.2 Actor availability
You will ensure that any actors which are required for the recording of the videos will be available for the agreed site visit to ensure that the recording can be completed. Failure to have the required actors present will result a different Actor needing to be nominated by you or the recording will not be able to continue and a Rescheduling Fee may be charged.
6.3.3 Supplied music rights
Where you have supplied us with any music to use in the video you agree that you have ownership rights to use this music.
6.4 Animation Specific Terms
6.4.1 Animation script
You may supply a suggested script of how you would like the video animation to be completed however we cannot guarantee that all aspects can be implemented or supported.