Terms and Conditions

LOVE MY ONLINE MARKETING PTY LTD

TERMS AND CONDITIONS

(TERMS)

1. Definitions

Brand (or Branding) means the creation of elements associated with a brand, including but not limited to the name, logo, design and other symbolic elements such as colour and visuals, which combine to create a distinctive identity.

Collateral means the collection of media, images and other material that supports the Brand and Design of the Brand.

Commencement Date means the date so specified in the schedule to the Proposal.

Confidential Information includes information which:

 (a)   is disclosed to you in connection with this Contract at any time;

 (b)   is prepared or produced under or in connection with this Contract at any time;

 (c)   relates to our business, assets or affairs; or

 (d)   relates to the subject matter of, the terms of and/or any transactions contemplated by this Contract,

 whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Contract means this document, including the Proposal and the Terms.

Digital Content means our creation of your digital content, including videos, audios, podcasts, live streams, photography, copywriting and any other type of digital content.

Design means the creation of symbols, images, colour and text to form a visual representation of a Brand through ideas and messages.

Development Stages means the stages specified in the Proposal under the heading “Services” for completion of the Website and include design, brand, logo and website elements as appropriate.

GST means:

(a)   the same as in the GST Law;

(b)   any other goods and services tax, or any tax applying to this agreement in a similar way; and

(c)   any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Host or Hosting means the company on whose system the Website physically resides.

Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights relevant to, inter alia:

(a)   textual, graphical, audio and other material displayed on the Website;

(b)   screens, organisation, patents and operation or control features;

(c)   all software associated with the Website; and

(d)   Design

Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, online information, information retrieval and file transfer protocol.

Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.

Link means a hypertext link connecting the Website to other websites.

Moral Right means:

(a)   a right of attribution of authorship;

(b)   a right not to have authorship falsely attributed;

(c)   a right of integrity of authorship; or

(d)   a right of a similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement.

Price means the fees and other charges payable by the Customer to the Supplier for the Services in Australian Dollars ($AUS), as specified in the Proposal or the Quote and extends to any third party software fees, plugins or other disbursements or materials purchased on behalf of a Client and billed to them.

Quote means the quote provided to you setting out the Price (if applicable).

Search engine means a Website that contains a directory of websites on the Internet enabling users to find Websites by subject matter classification.

Services means the Services and Scope set out in the Proposal.

Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into the Website and/ or designed elements/ Collateral.

Third Party Platform means any other person or organisation’s device, platform, application, operating system, software, website, software as a service (SaaS), infrastructure as a service, cloud service or similar service.

Website means the location accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical user interface.

World Wide Web means a method of representing and obtaining graphical data and linking data items used by Internet users.

2. Commencement

(a)   This Contract takes effect on and from the date on which this Contract is accepted in accordance with its terms (Effective Date), with Services to commence on the Commencement Date as set out in the Proposal.

(b)   You may not make any cancellations after the Effective Date, other than in accordance with these Terms. Subject to the terms of this Contract, we will proceed with the provision of the Services within a reasonable time after the Effective Date, and having reference to the Commencement Date.

3. Our obligations

(a)   In consideration of you paying us the Price, we will provide the Services in accordance with this Proposal and these Terms, whether ourselves or through our employees, consultants, suppliers, subcontractors or agents (Personnel).

(b)   If this Contract specifies a timeline process and stages of work, the Services will be provided in accordance with the process set out in the Summary. You acknowledge and agree that this timeline is an estimate only and creates no obligation on us to provide the Services by that time. Further, you acknowledge and agree that any such time estimate is subject to you fulfilling your obligations in accordance with clause 4 of this Contract. If you do not fulfil your obligations to provide us with all materials and instructions to complete the Services we reserve the right to charge a re-scheduling fee, postpone or terminate this Contract at our discretion.

(c)   While we will communicate with you via email and other electronic methods, we shall not be liable if an email or other electronic message is intercepted and your personal or sensitive information is stolen by a third party.

(d)   You may request a change to the Services, or additional Services not covered by the Scope, by providing written notice to us (Variation Request). We will not be obliged to comply with the Variation Request until:

(i)    we have confirmed our acceptance of the Variation Request in writing, including any required variation to the Price to perform the Variation Request (Price Variation);

(ii)   the Price has been adjusted to reflect the Price Variation; and

(iii)   you have paid us the Price (as adjusted by the Price Variation) in accordance with the Payment Terms.

(e)   The Scope for the Services may contain parameters around the number of revisions or minor changes that you receive for any Digital Content created for you. Any additional revisions that are provided outside of any set parameters will be at our sole discretion and we reserve the right to view additional revisions as a Variation that may incur additional fees.

(f)    Our Price and/ or Quote provided to you is based on our understanding of your requirements and the given time frame. Any changes to these aspects may be deemed as a Variation and a Price Variation may apply.

(g)   If there is a problem with the Services which is caused by a breach of this Contract by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our absolute discretion, refunding you that portion of the Price paid by you with respect to the Omission.

(h)   Nothing in this clause will affect our right to exercise our own judgment and utilise our creative skills as we consider most appropriate in order to develop the Website in accordance with the Design.

4. Your obligations

Under these Terms you have the following responsibilities:

(a)     you must comply with this Contract and all of our reasonable requests or requirements;

(b)     you must provide your feedback within any time period reasonably required by us (Feedback). If no such Feedback is received within 14 days we will assume that you approve of all elements and we will proceed to the next Development Stage (if applicable) on that basis;

(c)     you must provide us with access to any third party platforms such as websites if required for us to provide you with the Services;

(d)    you must obtain, and provide to us:

(i)    all things reasonably necessary to enable us to provide the Services, including disclosure of all information we require to complete the Services;

(ii)   all logos, photographs, designs, graphic, copywriting and related materials to be incorporated into the Website or your Design Collateral and Brand in the specific digital formats that we require it in; and

(iii)   all other information, ideas or suggestions that are to be expressly considered by us in creating your Website or Design Collateral; and

(e)   you warrant that you have provided us with accurate and complete information, including clear guidelines and any specific details you may require for your project. Where such details are not provided, we will proceed with our understanding of the requirements, and if discrepancy arises at a later stage this may be deemed a Variation and additional costs may apply. We are not responsible for and have no liability for any costs associated with discrepancies which arise due to unclear requirements, inaccurate or incomplete information provided by you.

5. Payment

(a)   You must pay us the Price, all disbursements (including travel and accommodation costs and third party costs incurred by us in the provision of the Services), and any other amounts payable to us under this Contract in accordance with the Payment Terms.

(b)   In the even that you are paying on a subscription basis (Subscription Payment), you must provide us with your credit card information. You authorise us to automatically take payment from your credit card or other specified method of payment at each monthly renewal for the agreed Subscription Payment. Subscription is ongoing until such time as you actively cancel your Subscription.

(c)   You acknowledge that payment may be made through third party platforms and such third parties may have terms and conditions that you must agree to.

(d)   If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

(i)    immediately cease providing the Services; and/ or

(ii)   charge you interest at a rate of 18% per annum, calculated daily and compounding monthly; and/ or

(iii)   engage a debt collection agency at your cost to recover outstanding payment.

6. GST

(a)   Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

(b)   In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:

(iv)  pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Charges or any other amount is payable under this agreement; and

(v)   make such payment either on the date when the Charges are due or within three (3) days after the Customer is issued with a tax invoice, whichever is the later.

7. Digital Content, Website Development, Search Engine Listings, Google AdWords and Design

(a)   With regard to Website Development:

(i)    You must provide all website content and any related materials to us within the first two weeks of commencing our Services. Any delays in receiving your content may result in delays to the timeline of our Services and we may charge additional costs if it goes beyond a reasonable timeframe, determined at our discretion.

(ii)   Installation of your Website to the Internet is limited to the uploading of all necessary files to the Hosting site and testing functionality of the Website.

(iii)   The Website is provided to you (and to be accepted by you) as a fully functioning and completed work.

(iv)  We will not be responsible for future support and maintenance with respect to your Website, including software updates and bug fixes, unless this has been explicitly agreed as part of our Services.

(v)   We may place a clickable Link on the bottom of the website as the developer on the bottom of your Website as part of our Terms. If you wish to have this Link removed, you must provide us with a written request, noting this may incur an additional removal fee.

(vi)  We use a Third Party Platform to Host your Website. While we work to minimise any downtime, you acknowledge that Hosting relies on factors outside of our control and we do not accept any liability for any loss or damage which occurs to your Website or your Digital Content during any downtime.

(vii)  We reserve the right to maintain control of your Website Contact Management System (CMS) until the Price is paid in full.  You acknowledge the CMS used in building your Website is owned by us. We grant you a royalty-free, worldwide licence to use the CMS for your Website, which is conditional on us providing the Hosting for your Website. You acknowledge the CMS cannot be transferred to any external Host, including any access to the software codes

(viii) Upon completion of Website installation (Installation), we will conduct tests to make sure the Website is functional.

(ix)  Any bugs reported to us during or just after the development of the Website does not attract additional charges. However, any bugs reported after this time period may attract an additional cost at our sole discretion.

(b)   With regard to Digital Content, Design, Branding and Collateral:

(i)    The ownership of Digital Content, Design, Brand and Collateral are set out in clause 8, Intellectual Property Rights.

(ii)   No open or original Design files will be submitted to you, unless a further agreement is reached between the parties.

(iii)   Any mock or draft Designs or Digital Content (Drafts) supplied to you by us remain our property and we reserve the right to use them in our portfolio and/ or marketing of any type. This includes Designs, Branding or Digital Content that you choose not to use.

(iv)  We reserve the right to use any Drafts that have not been used by you on our website, on social media, in any type of marketing or in our portfolio entirely at our discretion. You agree there is no assignment of intellectual property rights in any Drafts or ideas discussed between us and any Drafts rejected by you

(v)   We may issue Drafts to you for your approval and / or feedback (Feedback). Feedback must be provided within 14 days. If we fail to receive Feedback within this timeframe, we will assume that the Drafts are satisfactory and proceed to the next stage of our Services.

(vi)  Any changes that you require after you have provided your approval in your Feedback may incur additional charges at our sole discretion.

(vii)  You remain responsible for the final proofing of Drafts (including web designs, copywriting and all other material we create for you before publishing). You acknowledge and agree that by virtue of proofing all Drafts before it is used in any way by you, that you have that sole responsibility and we will not be held liable for any errors after the proofing has taken place.

(c)   With regard to Search Engine listings, SEOs or other Search Engine related services and Google Adwords:

(i)    We will not undertake registration of your Website with Search Engines unless this is expressly part of the Scope of Services.

(ii)   If we do undertake registration of your Website with Search Engines or perform Search Engine optimization as part of our Services, you acknowledge that Search Engines may vary by region, internal operations or other factors outside of our control. While we will do our best to optimize the best way for your rankings to increase, we cannot guarantee that your business will appear in the Search Engine or at the top of the rankings in the Search Engine or at the top of the Search Engine at any point in time as we cannot control the way that third party Search Engines operate.

(iii)   Certain Search Engines may have their own policies with regards to content that is accepted now or in the future, and you may be excluded from a Search Engine at any time at the Search Engine’s discretion which is beyond our control.

(iv)  While we use our reasonable commercial efforts and knowledge to tailor a google Adwords campaign for you, you acknowledge that Google Adwords is subject to algorithms and bidding on Adwords by other parties – all of which is out of our control. While we will do our best with your campaign we cannot guarantee that your business will have success or make sales as a result of any Google Adwords campaign we conduct for you. Consequently, our liability is limited in terms of the results of any Google Adwords campaign and you instruct us in this regard at your own risk.

8. Intellectual Property Rights

(a)   Subject to clause 8(b) and payment of the Price, Intellectual Property Rights in the Website, Design, Branding, Digital Content and/ or Collateral will vest in you. Until such time as the Price is paid in full, we will retain ownership and full copyright and Moral Rights in any Design, Collateral, Digital Content or Branding prepared for you.

(b)   Regardless of clause 8(a), you acknowledge that there is no assignment of Intellectual Property Rights in:

(i)    any pre-existing material (including but not limited to our software, documentation, templates and data) which is incorporated into or which has been used in the course of developing the Website; or

(ii)   the user interface of the Website.

(c)   On the Start Date, you grant us a perpetual, royalty-free, worldwide, unconditional, transferable and irrevocable licence to use, develop, adapt and modify (Use) all intellectual property rights (including copyright) in any materials that you provide to us in connection with this Agreement, and you will ensure that any such Use does not infringe any intellectual property rights of any person.

(d)   You warrant that:

(i)    any material supplied to us for Use on your Website or in your branding or graphic design is provided with all necessary permission, authorisations, licenses and consents in relation to its use and incorporation into the Website and your other design materials;

(ii)   you will be responsible for payment of all royalties or licence fees associated with the Use of a third party's intellectual property rights in connection with the Website or your graphic design material;

(iii)   you fully indemnify us against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party against us alleging that your use of the Website and such materials within your Website and Design Collateral infringes any such Intellectual Property Rights of any person, noting the permissions set out above.

(e)   Without limiting the generality of the previously mentioned subclauses, if it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property Rights has occurred, we will at our sole expense:

(i)    modify the Website and/ or Design Collateral in order to avoid continuing infringement; or

(ii)   procure for you the right to continue the use or possession of the infringing Web Site and/ or Design Collateral; or

(iii)   if the solutions in either of the preceding paragraphs cannot be achieved, remove the software dismantle and discontinue the Website and/ or Design Collateral.

9. Release for website and social media use

(a)   By signing this Contract, you agree to permit your logo (even if we did not design it) and pictures of your website and/or graphic designs or brand and logo design in client pitches or displayed on our website and/ or social media pages, other marketing purposes, for our portfolio of completed work and any other use at our reasonable discretion.

(b)   If you use our completed work in your social media pages, you agree to provide credit to us by tagging us in Instagram, Facebook, LinkedIn or other relevant social media platform.

(c)   Where you have left us a comment or review in reference to our Services (Review), you consent to us sharing your Review online on our website or social media. You agree that any Reviews made will be factual in nature and will use profiles with real credentials for us to easily identify you in our client database.

10. Use of Third Party Platforms 

(a)   We may use Third Party Platforms to perform our Services (including to Host your Website), communicate with you and for other ancillary reasons connected to the Services. You acknowledge that Third Party Platforms may have independent terms and conditions which you must agree to and may affect the Services we provide.

(b)   You agree and acknowledge that the use of such Third Party Platforms is on an ‘as is’ and ‘as available’ basis and we make no representations as to the fitness of the Third Party Platform for the intended purpose of the relevant Services or the safety or otherwise with respect to cyber security or any other aspect of any Third Party Platform, including data security or privacy.

(c)   To the maximum extent permitted by law, we disclaim any express or implied warranty, whether oral or in writing, for the use of Third Party Platforms and in signing this Agreement and proceeding with our Proposal you acknowledge that you will not hold us liable for any failure of a Third Party Platform with respect to the Services, including for any breach of security or loss of data.

11. Limitations of Liability and Warranties

Despite anything to the contrary, to the maximum extent permitted by law:

(a)   you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Effective Date;

(b)   you agree that this Contract excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Contract;

(c)   you agree that our Services do not guarantee that you will be successful in increasing your earnings, improving the reach of sales of your brand or business or attracting more clients;

(d)   our maximum aggregate Liability arising from or in connection with this Contract will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim; 

(e)   we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:

(i)    event or circumstance beyond our reasonable control;

(ii)   acts or omissions of you or your Personnel;

(iii)   defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or

(iv)  loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and

(f)    you will indemnify us for and against all Liability arising from or in connection with any wrongful act or omission by you or your Personnel. 

12. Refund Policy

Subject to clause 13, we do not offer refunds for change of minds.

13. Implied terms and consumer guarantees

(a)   Subject to clause 11(b), any condition or warranty, which would otherwise be implied in this agreement, is excluded.

(b)   Liability of the Supplier for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited, in the case of services, to any one of the following as determined by the Supplier:

(i)    the supplying of the services again; or

(ii)   the payment of the cost of having the services supplied again.

14. Suspension of Services

(a)   We may suspend our Services to you with reasonable notice if:

(i)    you have outstanding invoices or payments;

(ii)   you become a party in a dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;

(iii)   you breach this Agreement; or

(iv)  there is evidence to show you have engaged in illegal activity or failed to comply with applicable laws or regulations

(together the Suspension Reasons).

(b)   Unless there are grounds for termination, our Services will resume once the applicable Suspension Reason has been resolved.

(c)   If our Services have been suspended for 30 days or more, we may deem it a breach of this Agreement and terminate this Agreement immediately in accordance with Clause 15(a)(iv).

(d)   You release us from all Liability and indemnify us for any loss or damage that arises as a result of a suspension of Services due to the Suspension Reasons.

(e)   Nothing in this clause prevents us from terminating the Agreement in accordance with Clause 15.

(a)     Termination

This Contract will terminate upon written notice by:

(i)      For subscriptions: you, at any time with 30 days’ notice;

(ii)     For one-off projects: you, at any time with 30 days’ notice if you have declared bankruptcy or if you can prove you have insufficient funds to continue with our Services;

For all services and projects:

(iii)     us, at any time with 30 days’ notice, if we deem that we can no longer work constructively with you for any reason at our sole discretion;

(iv)    us, immediately, if you breach this Contract and that breach has not been remedied within 5 working days of being notified by us; or

(v)     you, immediately, if we breach a material term of this Contract and that breach has not been remedied or overcome within 15 working days of being notified by you.

(b)     On termination of this Contract, you will:

(i)    where this Contract is terminated under clauses 15(a)(i), 15(a)(ii), 15(a)(iii) or 15(a)(iv), immediately pay to us the Price and all of our additional costs resulting from the termination;

(ii)   where this Contract is terminated under clause 15(a)(v), immediately pay to us the Price for the Services performed up to the date of termination (and all other amounts due and payable to us under this Contract);

(iii)   immediately return to us all property, including Confidential Information, belonging to us or our Personnel; and

(iv)  not use any intellectual property rights (including copyright) belonging to our Personnel or us.

(c)     You acknowledge that on termination of our Services, we reserve the right to remove your whole account from our servers (including website, emails, re-directs and artwork files). We may delete these files at our discretion after cancellation and without notice.

15. Disclaimer

You acknowledge and agree to use our Services on the following basis:

(a)   while we do our best to assist your business in formulating digital strategies and digital transformations, you acknowledge that such strategies often require the participation of you and your staff members and the success of our Services may be affected by such variables and external factors;

(b)   we use best endeavours to protect any data and information that you have provided us in the course of providing our Services, including regular backups and using website firewalls, however we may be subject to third party hackers or other malware attacks. We are not liable for the loss of any of your data in this regard;

(c)   we are not responsible for any changes you make to the Website after the completion of our Services which causes a negative effect in search rankings or Website traffic and you indemnify us for the same; and

(d)   we do not guarantee better brand visibility, increased profits or higher rankings in Search Engines for your business. While our Services may assist in this regard, it is ultimately your responsibility to continue with the implementation and marketing strategies we have provided to you.

16. Confidentiality

(e)   A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

(f)    A party will not be in breach of clause 13(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.

(g)   Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.

(h)   Despite any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

(i)    This clause will survive the termination of this agreement.

17. Notices

Any notice given under this Contract must be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and service is deemed to have taken place on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

18. Relationship of parties

This Contract is not intended to create a partnership, joint venture or agency relationship between the parties.

19. Assignment

Neither party will assign, whether in whole or part, the benefit of this agreement or any rights or obligations under this agreement, without the prior written consent of the other party.

20. Entire agreement

This Contract contains the entire understanding and agreement between the parties in respect of its subject matter.

21. Law

This agreement will be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.

22. Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

23. Variation

No variation of this agreement will be effective unless in writing and signed by both parties.

24. Severability

Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such invalidity will not affect the validity of the remaining provisions of the agreement.

25. Disputes

A party may not commence court proceedings relating to any dispute arising from, or in connection with, this Contract (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute (unless that party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).

26. Survival

Clauses 3(g), 4(e), 8, 9, 10(b), 10(c), 11, 13, 14(d), 15(b), 16, 17 & 21 survive the termination of this Contract.