TERMS OF BUSINESS
This document sets out the standard Terms of Business governing the provision of digital marketing services by Local Web Advertising Pty Limited ABN 27 142 523 804 of Suite 406, 2 Grosvenor St Bondi Junction NSW 2022 (“LocalWeb”) to the client as identified in a Proposal (“Client”). These Terms of Business together with the information in each Proposal, shall form the entire agreement of the parties and supersede and override any other terms and conditions, arrangements or understandings.
1.DEFINITIONS
‘Intellectual Property Rights’ means any and all intellectual property rights throughout the world, subsisting whether now or in the future, including patents, designs, copyright, registered and unregistered trade marks and service marks, moral rights, trade, business or company names or other proprietary rights, or any rights to registration of such rights.
‘Proposal’ means the proposal prepared by LocalWeb prior to the commencement of the relevant Services, setting out the scope of work, deliverables, methodology, time frames and estimated costs.
‘Services means the services provided by LocalWeb to the Client and set out in the relevant Proposal, including but not limited to search engine optimisation (SEO), digital marketing and any other services.
2.SERVICES
2.1 LocalWeb will carry out the Services in a professional manner with due care and skill.
2.2 While LocalWeb will use its best efforts to meet any specified time frames for Services as set out in the Proposal, it reserves the right to extend these time frames provided it will endeavour to keep the Client updated of progress.
2.3 The Client acknowledges that the figures contained in any ranking report are estimates only derived from analysis carried out in accordance with accepted aggregation and proprietary technical methodologies. LocalWeb shall use its best endeavours to ensure accuracy, but does not warrant the accuracy, of any data provided, nor will it be liable for any error or omission in respect of the data or any loss arising therefrom. Keyword volumes set out in the Proposal are estimates only and subject to change.
2.4 LocalWeb requires log in to the Client’s site to carry out the Services effectively. If LocalWeb is not supplied with log in details, it may commence Services but will not be responsible for poor Service outcomes.
2.5 In the course of the Services LocalWeb may build links or set up email accounts on behalf of the Client. LocalWeb is under no obligation to show or give to the Client any of these links or accounts, or to remove them after the completion of the Services.
2.6 The Client acknowledges that LocalWeb is not obligated to exclusively provide the Services to the Client and may perform services for other similar businesses.
3.CLIENT OBLIGATIONS
3.1 The Client must provide LocalWeb with any assistance and information as LocalWeb reasonably requires to enable LocalWeb to provide the Services, including without limitation, providing directions, supplying content and meeting other obligations as set out in the Proposal in a reasonable time.
3.2 The Client must ensure that: (a) any material, information, images or content it supplies will not contain viruses or impact on the security of LocalWeb’s facilities, and will not be false, misleading, defamatory, offensive, or in breach of any laws or third party rights; (b) it has the right to use, and takes all responsibility for, any keywords approved or supplied by it for use in connection with the Services; and (c) its use of the Services will comply with all relevant laws, regulations and Codes.
4.SERVICE FEES AND PAYMENT
4.1 In consideration of LocalWeb providing the Services, the Client will pay to LocalWeb a monthly service fee (“Service Fee”) and other charges, as set out in the Proposal, payable on a monthly basis in advance, with the first month’s Service Fee payable on the date of commencement of the Services.
4.2 All Proposals will be open to acceptance for 14 days from the date of issue unless otherwise stated. The Client’s approval of the Proposal must be in writing, and will be authority to commence work. If any work is requested by the Client or otherwise required to be provided, which is outside of or different from the scope of work set out in the Proposal (as determined by LocalWeb in its discretion) this may be at additional cost, to be charged at the rates set out in the Proposal or if not stated, in 30 minute increments at LocalWeb’s then current rates.
4.3 The Client will also pay for: (a) disbursements and third party costs incurred by LocalWeb on behalf of the Client; and (b) travel, taxi, courier, parking and other out of pocket expenses as reasonably required.
4.4 Any fees and charges are exclusive of all applicable taxes (including GST), duties and surcharges. The Client must pay any such taxes, duties and surcharges upon LocalWeb’s request.
4.5 A 15% surcharge may be applied to amounts more than 30 days in arrears, with the full surcharge to be paid to a registered charity of the Client’s choice or if no such charity is nominated within 7 days of notice, as determined by LocalWeb.
5.SUB CONTRACTING
5.1 LocalWeb may sub-contract the whole or any part of its obligations under these Terms of Business at its discretion.
6.1 Any confidential information disclosed by one party to the other party, including but not limited to trade secrets, budgets, plans, strategies, concepts, product, service, financial and business information, methodologies, techniques, pricing and any information in a Proposal; must not be disclosed to any third party or used other than for the purpose of carrying out obligations under these Terms of Business, except with the other party’s prior consent, or if the information is lawfully in the public domain.
7.INTELLECTUAL PROPERTY
7.1 LocalWeb will solely own the contents of the Proposal, and any materials, reports, analysis data, software, tools, templates, presentations or other works provided or used by LocalWeb in the course of the Services and all Intellectual Property Rights therein, unless otherwise specified. The Client must obtain prior consent to publish or communicate any content from any such works and must acknowledge LocalWeb as the source.
7.2 The Client acknowledges that LocalWeb may use third party works in connection with the Services which may be subject to limitations on use. LocalWeb will obtain from the owner of any third party work a license to use the work for such purposes and on such terms as is required.
7.3 LocalWeb may include the Client’s name, website and ranking results in promotional and sales material for the purpose of promoting LocalWeb in any media.
8.AMENDMENT OR CANCELLATION
8.1 Any amendments to the Proposal may only be made by request of a party in writing, may result in changes to time and cost estimates, and will take effect only if accepted in writing by the other party.
8.2 In the event that the Client requests that LocalWeb amend or cancel any work in progress, including cancellation of a subscription after commissioning: (a) LocalWeb shall take all reasonable steps to comply with the Client’s request once the initial contract has expired, provided that it can do so within its contractual obligations to third parties; and (b) If the client should wish to break the contract, they will be liable for a minimum of 3 months service fees to break the contract. The Client will pay LocalWeb upon presentation of an invoice, any fees and expenses for Services provided to date and financial commitments incurred including any non cancellable third party costs in this period.
9.LIABILITY AND INDEMNITY
9.1 The Client indemnifies and holds harmless LocalWeb in respect of any loss, claim, damage, action, suit or proceeding sustained by LocalWeb arising in relation to: (a) any material provided by the Client; (b) any act or omission or breach of these Terms of Business by the Client; or (c) any act or thing done on the Client’s express instructions.
9.2 To the full extent permitted by law, LocalWeb excludes all liability for costs, loss or damage suffered in connection with these Terms of Business (including for negligence) and (except as expressly provided herein) LocalWeb excludes all terms and conditions, warranties and representations, whether express or implied. In relation to any liability that cannot be lawfully excluded, the liability of LocalWeb is limited in its discretion to the re-supply of the affected Services, or payment of the cost of their re-supply.
9.3 The Client acknowledges that: (a) LocalWeb has no affiliation with, and cannot control the actions of, any search engines; (b) search engines may consider LocalWeb tactics to be inconsistent with their rules and guidelines. LocalWeb makes no guarantee, representation or warranty, express or implied, regarding search engines’ interpretation, enforcement or amendment of their rules and guidelines, or regarding any particular rankings, movements, positions or presence on search engines, or the level or nature of any consumer response that may be generated by the Services. LocalWeb takes no responsibility for loss of income or rankings associated with the Services.
9.4 LocalWeb shall not be liable for any defect and/or alteration to the Services and any consequences thereof, resulting from a misuse of the Services by the Client or its employees or agents, any material provided by the Client, any intervention by a third party, or the combination of the Services with any non compatible third party software or third party equipment.
9.5 LocalWeb will not be liable for any failure or delay where arising out of any circumstances outside its reasonable control, including but not limited to fire, storm, flood, accident, war, terrorism, labour dispute, communication or network failure.
10.TERM AND TERMINATION
10.1 These Terms of Business will commence on the earlier of: (a) the date of written approval of a Proposal by the Client; and (b) the commencement of the Services, and will continue for an initial term of six months (“Initial Term”), and will continue thereafter on a month to month basis, unless terminated earlier under this clause.
10.2 Either party may terminate these Terms of Business on 30 days written notice, provided that if the Client terminates within the Initial Term, it must pay LocalWeb 40% of the remaining Service Fees payable under this Terms of Business for the Initial Term.
10.3 Either party may terminate these Terms of Business immediately by giving notice where the other party: (a) materially breaches any term of these Terms of Business and fails to remedy such a breach within 14 days notice of said breach; or (b) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
10.4 Upon termination for any reason the Client must: (a) pay LocalWeb any fees and expenses for Services provided up to the date of termination and financial commitments incurred including any non cancellable third party costs; and (b) return to LocalWeb and not use in any way, any confidential information, and, unless otherwise expressly agreed in writing, any Services which have not been paid for in full.
11.GENERAL
11.1 Any variations to these Terms of Business are only valid if in writing and signed by both parties.
11.2 The Client must not assign any right or obligation under these Terms of Business without LocalWeb’s written consent. LocalWeb may assign its rights and obligations without restriction.
11.3 These Terms of Business shall be governed by and interpreted under the laws of the State of New South Wales and will be subject to the jurisdiction of the Courts of New South Wales.
