TERMS AND CONDITIONS OF ENGAGEMENT
These terms and conditions (“Terms”), together with the Digital Junkies Service Specifications constitute a legally binding agreement between you (the Client) and Digital Junkies Pty Ltd of 36 Laver Drive, Robina Gold Coast, Australia (“Digital Junkies”), for the provision of online advertising services and/or other services set out in your Digital Junkies Service Specifications s (the “Services”) effective from the date the last party signs the Digital Junkies Service Specifications OR starts using the Services.
The following definitions apply to this agreement (unless the context otherwise requires):
‘Agreement’ means these Terms, the Digital Junkies Service Specifications and any documents, schedules or annexures referenced or incorporated into this agreement as amended from time to time;
‘Australian Consumer Law’ means the consumer protections set out in Attachment A of the Competition and Consumer Act 2010 (Cth) as amended from time to time;
‘Background IPR’ means a party’s IPR that existed prior to, or created independently of, this Agreement.
‘Digital Junkies Service Specifications’ means the document titled the “Digital Junkies Service Specifications” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Digital Junkies, as agreed in writing by the Client and approved by Digital Junkies.
‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.
‘Commencement Date’ means the date the Services are to commence as specified in the Digital Junkies Service Specifications.
“Completion Date’ means the date the Services will cease as specified in the Digital Junkies Service Specifications;
‘Confidential Information’ means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:
- is or becomes public knowledge other than by breach of this Agreement;
- is required to be disclosed by law;
- was known by the recipient as at the date of this Agreement; or
- has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information
where the burden of establishing any of the exceptions referred to in (1) to (4) will be upon the recipient;
‘Fee’ means the money payable to Digital Junkies for the Services and any incidental costs as set out in Digital Junkies Service Specifications.
‘Intellectual Property Rights’ or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
‘Material’ means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material.
‘Minimum Term’ means the term of 4 months or such other term as agreed with the Client and specified in the Digital Junkies Service Specifications;
‘Services’ means the services described in Schedule 1;
‘Services Material’ means any Material that is created during the performance of the Services but does not include the Client Content;
‘Special Conditions’ means the special conditions set out in the Digital Junkies Service Specifications (if any);
- Term and extension
- This Agreement will commence on the Commencement Date and continue until the Completion date (the ‘Term”) unless terminated earlier in accordance with clause 19.
- The parties agree that the Agreement will run for the Minimum Term in order to maximise the results and benefits of the Services. Should the Client wish to terminate the Services during the Minimum Term, it can do so by giving 30 days written notice noting however that Digital Junkies reserves the right to charge a Cancellation Fee of 1 month’s management fee (or part thereof) in its absolute discretion.
- The parties may choose to extend the Term for a further 4 months or as agreed by the Parties in writing (including moving to a monthly agreement).
- Provision of the Services
- During the Term Digital Junkies will:
- provide the Services to the Client with all due care and skill and in a professional manner consistent with generally-accepted industry standards;
- assist the Client in the establishment of a digital strategy in order to maximise the effectiveness of the Services;
- keep the Clients nominated contact(s) informed of the progress of the Services;
- inform the Client of any issues, which Digital Junkies reasonably believes may impact on the provision of the Services; and
- provide the Client with detailed accounts of Services rendered.
- Client Obligations
- The Client warrants that:
- it owns the rights or has the right to use the Client Content;
- it owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);
- its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure;
- has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content;
- it will check the integrity of the Client Content on a regular basis; and
- it will use its best endeavours to comply with its obligations under this Agreement.
- For the avoidance of doubt, Digital Junkies does not take any responsibility for the Client Content and it is the Clients sole responsibility to ensure the integrity of the Client Content.
- During the term of this Agreement, the Client must:
- Provide all necessary information to Digital Junkies upon request;
- Provide access to locations, systems and Infrastructure including relevant passwords and/or data required by Digital Junkies in order to perform the Services;
- regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.
- cooperate with Digital Junkies by providing access to its premises and facilities as reasonably necessary to enable Digital Junkies to provide the Services;
- provide other such access, documents, information or data as Digital Junkies reasonably requires in order to perform the Services; and.
- comply with in the terms and conditions of this agreement, including any Special Conditions set out in Schedule 1.
- The Client agrees to comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of Digital Junkies obstructs the nature and goodwill of the Services.
- The Client agrees to use the Services only for lawful purposes and is prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state or national law.
- During the Term of this Agreement, Digital Junkies may elect to electronically monitor the Services for adherence to these terms and may disclose to the extent permitted by law (and subject to our obligations of confidentiality) any content, records or electronic communication of any kind:
- As required by law;
- if such disclosure is necessary to perform the Services, or
- to protect the rights or property of Digital Junkies.
- Digital Junkies reserves the right to remove any Client Content or other content that it deems to offensive or as otherwise described in clause 3.5. Where a series of such breaches occurs by the Client after receiving notice to desist from Digital Junkies, Digital Junkies will terminate your Agreement with immediate effect.
- Fee and Payment
- The Fees for the Services are set out in “Your Investment”.
- Unless otherwise indicated the Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to Digital Junkies any GST relating to the Services.
- You agree to pay our initial (1st) invoice upon receipt which will act as a deposit for the project. Every invoice after that will be due on receipt (unless otherwise negotiated). In the event payment is not made, Digital Junkies reserves the right to stop work until payment is received.
- Any disbursements incurred as a result of providing the Services will be reimbursed in full to Digital Junkies upon submission of receipts to the Client.
- If there is a change in the scope, timing or order of the Services, then Digital Junkies will be entitled to additional payment of any amount which is reasonable in the circumstances.
- Paid Advertising Management
- Digital Junkies will set up paid advertising campaigns and deliver paid traffic to the Clients website. This can be from a variety of networks including Google, Facebook and Bing. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. Digital Junkies is not to be held liable in this situation. When subscribing to remarketing services through Digital Junkies, it is the responsibility of the Advertiser to ensure that relevant Privacy Laws and Policies (Google, Facebook) are in place regarding direct marketing.
- Costs associated with media and clicks generated from running this service will be charged directly by respective platform. The Client authorises Digital Junkies to provide your credit card details to the advertising platform for this purpose. These fees will appear as separate charges on the Clients credit card statement.
- The Client agrees that Digital Junkies is not responsible or liable for any incorrect payments charged by third party advertising platforms. The Client agrees to communicate directly with the advertising platform should any incorrect charges be made on your nominated account by a third party advertising platform. Digital Junkies agrees to provide tis reasonable assistance to facilitate communication between the Client and Google should this situation arise.
- All paid platform accounts initially set up by Digital Junkies are the property of Digital Junkies. Upon termination or expiration of this Agreement, the Client may apply to Digital Junkies to transfer ownership of the account which will be granted if the following conditions are met:
- The term of the agreement is realised; and
- A minimum of 4 payments have been made on this service.
- The Client must comply with guidelines for the respective paid advertising platforms.
- A Paid Advertising campaign which is still in its Minimum Term and has had a minimum of 3 months, can be paused for a 1 month period. Where the campaign is suspended for a longer period of time, then Digital Junkies may choose to terminate the Agreement and charge the Client a Cancellation Fee in accordance with clause 1.3.
- If Digital Junkies elects to use a paid platform account owned by the Client, changes to the account should only be made by Digital Junkies staff. The Client can request changes to the account via the nominated Digital Junkies account manager.
- Please note that Digital Junkies (a Google AdWords Certified Company) is not directly affiliated with Google™. All Google™ related services, claims and guarantees are performed and underwritten by Digital Junkies.
- Upload of Content to Customer Websites
- Digital Junkies will upload optimised content and tags to the Client’s website where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.
- During the provision of the Services, the Client may provide Digital Junkies with access to make changes to their website. However, the Client agrees that Digital Junkies is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3. This excludes websites which been developed by and still hosted with Digital Junkies.
- Website Design
- Website design services are provided as per your Website Design Agreement with Digital Junkies. An approximate timing schedule is provided at the time of the Website Design Agreement. Failure to provide content or other items within the specified time will delay the setup of the website.
- After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website is hosted by Digital Junkies. In the event that the Clients website goes down and it is hosted on a website server other than the Digital Junkies server, we are not responsible for bringing the website back online.
- Website Hosting Services
- Digital Junkies warrants that the Clients uptime availability will be at least 99.9% except where the failure results from:
- A failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;
- The Client’s act or omission (or a person under the Client’s direction or control);
- A failure or malfunction of any software forming part of the Services which has not been subjected to a testing regime due to its time critical nature including updates, patches, definitions etc.;
- during scheduled maintenance windows and any emergency maintenance and upgrade work;
- a requirement, direction or any other order issued by a court, government authority, administrative or judicial body;
- unauthorised or illegal access by any party to any party of the computer systems used to provide the Services including hacking, cracking, virus dissemination and denial of service attacks;
- any false breaches reported as a result of outages or errors of any Digital Junkies measurement system;
- DNS propagation;
- Digital Junkies takes no responsibility for a websites functionality or performance that has been transferred into its hosting environment pursuant to this clause. If Digital Junkies identifies any issues with the website which may degrade the server and/or affect the stability of the Clients website, Digital Junkies will notify the Client of same and such issues must be rectified at the Clients expense in order to continue the hosting services.
- Search Engine Optimisation (SEO)
- Digital Junkies will undertake the optimisation of the Clients website as per best practise techniques used in the industry.
- Although Digital Junkies are the specialists in the industry, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Clients website history, industry and many more factors. The Client agrees to release Digital Junkies and any employee, owner, or director of Digital Junkies from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
- Any alterations of SEO keywords by the Client after the initial selection of the keywords will incur additional fees.
- SEO services do not include the consultation required in the launching of a new website, on the domain being worked on. An additional fee will be payable for this service, which will be quoted prior to commencement of this consultation. Organic Search Marketing services are exempt of this fee.
- Website Content Maintenance
- Ad-hoc website maintenance including content updates is charged at the hourly rate of $80 with a one (1) hour minimum and has a five (5) business day turnaround time.
- Service Inclusions
- During the Term Digital Junkies will:
- supply telephone or other electronic support to the Client between the hours of 8:30am – 5:30pm Monday to Friday (“Business Hours”) in order to support Clients enjoyment of the Services;
- provide the services set out in the Digital Junkies Services Specifications; and
- provide any additional services which have been agreed to in writing between Digital Junkies and the Client, the provision of any additional services are subject to the terms of the Agreement and may incur additional fees.
- Service Exclusions
- Unless otherwise agreed in writing, Digital Junkies has no liability for, and is not required to provide Services under this Agreement if it relates to:
- rectification of lost or corrupted data arising for any reason other than Digital Junkies’ own negligence;
- support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services or the use of the system or operating environment;
- attendance to faults caused by using the Services outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Services, or caused by operator error or omission;
- diagnosis and/or rectification of problems not associated with the Services;
- damage due to external causes outside Digital Junkie’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary;
- the Client not following Digital Junkies or a third party (such as Facebook) written instructions for the Services;
- the Client’s or its third party’s abnormal use of the Services and/or any repair or damaged caused by such misuse;
- any other Exclusions listed in the Digital Junkies Services Specifications.
- Digital Junkies may choose to provide the above services at an additional cost to the Client (which will be invoiced separately).
- Each party must at all times:
- maintain the secrecy and confidentiality of any Confidential Information of the other party;
- not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;
- refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and
- use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.
- For the avoidance of doubt all methodologies, documentation and procedures used by Digital Junkies for the provision of the Services are classified as Digital Junkies’ Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless Digital Junkies provides its express written consent (which may be withheld in its absolute discretion).
- The Client agrees to comply with the Privacy Act 1988 in its dealings with Digital Junkies. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Digital Junkies in connection with this Agreement. The Client indemnifies and keeps indemnified Digital Junkies from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.
- Partner Referral Agreements
- Where the Client has been introduced to Digital Junkies via a third party referrer, the Client acknowledges and agrees that some information may be shared with these partners including email, name and products purchased for reporting purposes.
- Ownership of Data and Services Material
- No Background IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable license to use its Background IPR for the purposes of this Agreement. For the avoidance of
doubt, the Client owns all IPR in the Client Content and grants Digital Junkies a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.
- All IPR in the Services Material is owned by Digital Junkies upon creation. Subject to the payment of the Fee, Digital Junkies hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.
- The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.
- The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.
- The Client indemnifies, saves and holds Digital Junkies harmless from any loss, liability, claim, damage or expense Digital Junkies suffers or incurs as a result of the Clients failure to comply with its obligations under this clause.
- Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Digital Junkies’ control and could result in a breach of security. The Client hereby expressly waives any claim against Digital Junkies arising out of the loss of data through corruption, piracy, and breach of security or for any other reason.
- Warranties and Indemnities
- Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
- Subject to clause 18.1, any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.
- Any liability Digital Junkies may have for any failure to comply with a consumer guarantee imposed by the Australia Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at Digital Junkies’ option) in the case of the Services:
- re-supplying the Services;
- paying the cost of re-supplying the Services.
- To the extent that Digital Junkies’ liability cannot be or is not otherwise limited according to this clause 18, under no circumstances will Digital Junkies’ total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Digital Junkies by the Client under this Agreement.
- The Client assumes sole responsibility for the use of the Services in its business operations and hereby indemnifies (and keeps indemnified) Digital Junkies, its officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:
- the Client’s use of, or reliance on, any part of the Services and/or Services Material; or
- any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.
- a breach or failure to perform by the Client of its obligations under this Agreement; or
- any wilful, unlawful or negligent act or omission of the Client.
- The Client’s liability under clause 13.5 will be reduced proportionately to the extent that Digital Junkies’ negligent act or omission contributed to that loss or liability.
- For the avoidance of doubt and to the fullest extent permitted by law, Digital Junkies is not liable for:
- any special, indirect or consequential loss including (but not limited to) loss of opportunity and/or loss of profits, savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Material under this Agreement; or
- Any loss or damage suffered by the Client or any third party due to the Clients negligent or improper use or of the Services and/or Services Material.
- Each party may terminate this agreement by giving 30 days’ written notice to the other party. If the Agreement is terminated by the Client within the Minimum Term, the Client will be liable to pay the Cancellation Fee of 1 month’s management fee.
- Without limiting any other rights or remedies Digital Junkies may have against the Client arising out of or in connection with this Agreement, Digital Junkies may terminate the Agreement with immediate effect if the Client:
- Commits a serious breach of this Agreement including (but not limited to) posting offensive material or material promoting or suggestive of illegal or criminal activity;
- has not paid the issued invoice on time or has not notified Digital Junkies that it disputes the charges specified under an invoice within 60 days of receipt of that invoice; and
- the Client breaches a provision of this Agreement and fails to remedy the breach within 30 days of receiving notice to do so; or
- the Client becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
- A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.