Terms of Service

1. Agreement and Term

(a) Where:
- (i) the Client directs the Agency to provide the Services, whether orally, in writing (including email); and
- (i) the Client returns a signed (including electronically) copy of the Agreement; the Client and the Agency will be taken to have entered into this Agreement, which will govern the delivery of the Services.
(b) This Agreement commences on the Commencement Date and continues for the Term, unless terminated earlier in accordance with clause 18 .

2. Special Conditions

(c) Special Conditions operate as terms in addition to terms contained in this Agreement.
(d) If there is any inconsistency between any Special Condition and any terms of this Agreement, the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.

3. Services

(e) The Agency will provide the Services to the Client according to the Proposal.
(f) The Agency’s personnel will be made available during 9:00am and 5:00pm on Business Days. Services requiring its personnel’s involvement will be carried out during these hours unless otherwise determined by the Agency in its sole discretion, acting reasonably.
(g) The Agency agrees to:
(i) establish and maintain clear channels of communication with the Client;
- (ii) provide the Services professionally, efficiently and according to industry standards applicable in Australia;
- (iii) provide the Services within any timeframe(s) set out in the Proposal, or in any event, in a timely manner; and
- (iv) promptly inform the Client of any change of circumstances that may materially impact the provision of the Services.
(h) In performing the Services, the Agency will:
- (i) comply with relevant laws including State and Federal laws and local government laws and regulations; and
- (ii) observe the Client’s reasonable directions in relation to security or the use of any of its facilities or equipment.

4. Variations

(i) The Client agrees and acknowledges that the Fees are based on the scope of the Services stipulated in the Proposal.
(j) If the Client wishes to change the scope or specifications of the Services including procuring any out of scope services, after the commencement of this Agreement (Variation), the Agency will negotiate with the Client in respect to extra Fees (Additional Fees) and any change to the timelines which result from the Variation.
(k) Unless otherwise agreed in writing, the Additional Fees will be charged at the Agency’s then prevailing rates.
- (l) For the avoidance of doubt:
- (i) any additional work required owing to any errors in or a change to third party software or systems will be considered a Variation;
- (ii) any other change that is considered by the Agency, acting reasonably, to be a change to the scope of the Services, will be considered a Variation; and
- (iii) the Agency is under no obligation to accept a Variation requested by the Client.

5. Acceptance and Warranty Period for fixed fee Deliverables

(m) Within 10 days (Warranty Period) of the Agency supplying a fixed fee Deliverable, the Client may notify the Agency in writing of any Bugs, errors or lack of conformity to any expressed specifications set out in the Proposal (Issue).
(n) If the Client notifies the Agency in writing of any Issue with a fixed fee Deliverable during the Warranty Period, the Agency will, within a reasonable time, rectify the Issue at no further cost to the Client.
(o) If the Client does not notify the Agency in writing of any Issues within the Warranty Period, the Client is deemed to accept the Deliverable as satisfactory and in accordance with the Proposal.

6. Right to sub-contract

The Agency may appoint employees, subcontractors or agents to provide all or part of the Services without consent or notice to the Client.
The appointment of any such employee or agent does not relinquish the Agency of its obligations under this Agreement.

7. Use and storage of Client Materials

(p) The Client acknowledges, agrees and consents to the Agency:
- (i) storing, using, copying, transmitting and backing up Client Materials; and (ii) granting access, or otherwise disclosing, Client Materials to third parties, as reasonably required for the provision of Services to the Client under this Agreement.
(q) The Client must maintain copies of any Client Materials provided to the Agency and must not rely on the Agency as a storage service provider. The Agency will not be liable for any failure by the Client to maintain its own copies of Client Materials.

8. Client’s obligations

The Client must:

(r) upon the Agency’s request, nominate a key representative to liaise with the Agency, who has the authority to make decisions and give instructions on the Client’s behalf in relation to the Services;
(s) ensure that the Agency has access to all Client information, systems, personnel and premises, as may be required in order for the Agency to provide the Services to the Client in accordance with the Proposal;
(t) establish and maintain clear channels of communication at all times with the Agency;
(u) provide the Agency with assistance in drafting written content;
(v) be responsible for proof-reading and advising the Agency of necessary amendments to any written content developed by the Agency;
(w) immediately inform the Agency of any change of circumstances that may materially impact the provision of the Services;
(x) take all reasonable information technology security precautions including maintaining secure access to accounts, systems, and platforms and ensure the users of its computer systems take similar precautions;
(y) promptly, and in all circumstances within 3 Business Days of the Agency requesting it, provide the Agency with all approval, feedback, directions, instructions, information, personnel, Client Materials and access to the Client’s property, systems and premises, as may be required for the Agency to provide the Services; and
(z) reimburse the Agency the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this Agreement, including travel expenses between the Agency’s premises and the Client’s or the Client’s customer’s sites, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred to promptly and efficiently provide the Services.

9. Client warranties

The Client warrants and undertakes that:

(aa) it and its representatives have all necessary licences and legal right(s) to permit and authorise the Agency to provide the Services; and
(bb) providing the Services in accordance with the Client’s directions will not contravene any applicable laws.

10. Performance limitations

(cc) The Client acknowledges and agrees that all search engine optimisation targets, goals, or similar objective evaluation criteria (Targets) agreed between the Agency and the Client, while realistic, are aspirational only.
(dd) the Agency makes no representations, gives no warranties and makes no guarantees that the Client will:
- (i) achieve, complete, satisfy or reach any Targets over any time period, or at all; or
- (ii) generate any financial return or other benefit over any time period.
(ee) The Client acknowledges and agrees that the suitability, accuracy, or efficacy of any Services may be subject to various factors which are outside the reasonable control of the Agency, including but not limited to:
- (i) the terms and policies adopted by third party service providers, such as Google, Meta and other social media or communications services;
- (ii) market conditions and sentiment;
- (iii) macro-economic or geopolitical factors; and (iv) changes in laws and regulations.
(ff) The Client acknowledges and agrees that to achieve the Targets, it may be necessary for the Agency to use wording that prioritises Search Engine Optimisation effectiveness over conventional grammar or natural language flow.

11. Product limitations

(gg) The Client acknowledges that any Products that are developed by the Agency may run on third party platforms or use open source software. If any of these third party platforms, software or environments make an update or discontinue, this may cause the Client’s software to be interrupted or not operate at full functionality. Applying fixes or updates to third party software is considered a Variation.
(hh) Where Services are provided in relation to any Product or other asset of the Client’s which were not originally created or developed by the Agency, the Client acknowledges and agrees that:
- (i) unless otherwise agreed by the Agency, the Agency has no obligation to identify, detect or report any Bugs to the Client, although the Agency may choose to do so in its discretion without incurring any Liability to the Client; and
- (ii) the Agency accepts no Liability for any claims or losses suffered by the Client due to the use, non- use, misuse, or malfunction of any third party product or other asset of the Client.

12. Browser compatibility

Where Products include websites, such websites are designed to work on recent versions of the major browser platforms including Safari, Google Chrome and Microsoft Edge or their substitutes (while they continue to be maintained).

The Agency is not liable if the Client or its users suffer performance degradation or failure when accessing the website from outdated browsers.

13. Operational Requirements

The Client acknowledges and agrees that, unless otherwise agreed by the Agency and the Client in writing:

(ii) the Services do not include the supply of any hardware, internet connections, data hosting services, cloud computing services, or supporting software or infrastructure which may be required to use or operate any Deliverable (whether over the internet or otherwise) (Operational Requirements); and
(jj) the Client may be required, at its own cost and expense, to acquire, arrange and install all Operational Requirements in accordance with the Agency’s requirements which may involve the payment of service fees, subscription fees, licence fees and other fees to the Agency or third party suppliers.

14. Payments

(kk) The Agency will invoice the Client for the Services, and any Additional Fees incurred as a result of a Variation.
(ll) Unless otherwise stated all Fees are exclusive of applicable Taxes. If any Taxes are imposed on a supply under this Agreement, where required by law, the Agency will itemise any applicable Tax on a tax invoice and the Client must pay the Tax amount with and in addition to the Fees.
(mm) The Client must pay the Agency the Fees within 7 days of the invoice date (Payment Terms).

If the Client fails to pay the Agency the Fees according to the Payment Terms, the Agency will have the right to:

(i) charge the Client interest on the overdue amount at a rate equal to the National Australia Bank Overdraft Base Rate;
(ii) immediately initiate proceedings against the Client to recover the overdue amount (this right takes precedence over the conditions in clause 20 of this Agreement); and
(iii) to recover all costs in relation to any action taken against the Client to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.

15. Confidentiality

(nn) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information, except as required in the performance of its obligations under this Agreement.
(oo) A party will not be in breach of clause 15(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(pp) Notwithstanding any other provision of this clause 15 , a party may disclose the terms of the Agreement to its related companies, solicitors, auditors, insurers and accountants.
(qq) The obligations under this clause 15 survive termination of the Agreement.

16. Intellectual Property

(rr) The parties agree:
- (i) the New IP is assigned to the Client upon payment of the Fees;
- (ii) the Agency IP is owned absolutely by the Agency and vests in the Agency immediately upon creation;
- (iii) to the extent that the Agency may at any time acquire any right, title or interest in the Client Material, the Agency assigns to the Client all such rights, title and interest in the Client Material upon payment of the Fees;
- (iv) to the extent that the Client may at any time acquire any right, title or interest in the Agency IP, the Client, immediately assigns to the Agency all such rights, title and interest; and
- (v) the Agency grants the Client an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use the Agency IP to the extent that it is contained within any deliverable arising from the Services.
(ss) the Agency warrants that the Agency IP does not infringe in any way on any third party’s Intellectual Property rights.
(tt) The Client warrants that it owns the Intellectual Property in all the Client Materials, and that use of the Client Materials by the Agency will not infringe upon the rights of any third party.
(uu) The Client grants the Agency an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use, the Client Materials and the New IP solely for the purposes of providing the Services.
(vv) The Client grants the Agency an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use the Client Materials and the Client IP for the purpose of the Agency displaying its skills by reference to its previous work in a marketing and advertising context.

17. Limitation of Liability

(ww) The parties expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
(xx) Subject to the Non-excludable Conditions, the Agency excludes all Liability for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client, in connection with this Agreement, whether that Liability arises under contract, tort (including negligence) or under statute, including by:
- (i) misuse or user error except to the extent the misuse or error is caused by the Agency;
- (ii) the delays, action, operation, inaction or failure of any third party, third party service, software or equipment;
- (iii) any delays by the Client in providing Client Materials; or (iv) any Force Majeure Event.
(yy) To the fullest extent permitted under the law, the Agency limits its Liability for any breach to:
- (i) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
- (ii) in the case of services: the re-supply of the services affected by the breach; or the payment of the cost of such re-supply of the services.
(zz) Neither party will be liable to the other whether in contract, tort (including negligence) or otherwise in connection with this Agreement, for loss or damage to the extent that the other party (or the other party’s personnel) contributed to the loss or damage.
(aaa) The parties agree that to the maximum extent permitted at law, neither party is liable to the other for Consequential Loss.

18. Termination

(bbb) Either party may terminate the Agreement immediately by written notice to the other party if:
- (i) the other party breaches the Agreement, and has failed to remedy that breach to the satisfaction of the innocent party within 10 Business Days of a written notice to do so; or
- (ii) the other party suffers an insolvency, bankruptcy or similar event.
(ccc) If the Proposal specifies that this clause 18(b) applies, then either party may terminate this Agreement for any reason and without penalty by providing written notice in accordance with the provisions set out in the Proposal.

19. Consequences of termination

(ddd) If this Agreement ends for any reason, then in addition to any other rights the Agency may have:
- (i) the Agency may issue an invoice for Fees relating to Services provided up to the point of termination but not yet invoiced for; and (ii) the Client must pay all of the Agency’s outstanding invoices whether or not due, including any invoice issued under clause 19(a)(i) .
(eee) If this Agreement ends for any reason and the Agency was not in default of this Agreement, then:
- (i) the Agency is entitled to Fees for the balance of the Term (if any) of this Agreement (calculated using the Fees applicable as at the date of termination); and
- (ii) any amounts owing to the Agency under this clause 19 , excluding any costs which can be reasonably mitigated, become immediately due and payable.
(fff) The parties agree that the amounts owing under clause 19(b) do not constitute a penalty but represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of the Agency’s sunk costs and ongoing commitments.
(ggg) If the Agency terminates this Agreement under clause 18(b) then it will refund to the Client any unused portion of Fees which were prepaid for this Agreement, less any other amounts owed to the Agency.
(hhh) This clause 19 survives termination of this Agreement.

20. Dispute Resolution

(iii) A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 20 before commencing any legal proceedings.
(jjj) If the parties cannot resolve the Dispute between themselves within 30 days, then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of this Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
(kkk) Each party must pay its own internal and legal costs in relation to complying with this clause 20 . The mediator’s costs are to be shared equally.
(lll) The parties acknowledge and agree this clause 20 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

21. General

21.1 Assignment Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights under this Agreement without the consent of the other, which must not be unreasonably withheld.
21.2 Governing law The laws of Queensland, Australia govern this Agreement. The parties submit to the exclusive jurisdiction of courts exercising jurisdiction there. 1.2 Force Majeure
- (a) If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties obligations under this Agreement are suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may end this Agreement if the Force Majeure continues for more than 30 days.
- (b) The occurrence of a Force Majeure Event does not suspend the obligation of the Client to pay any Fees under the Agreement.

1.3 Operation of the Agreement

(a) This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
(b) Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the document enforceable, unless this would materially change its intended effect.

1.4 Relationship Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between the parties. No party may act as agent of or in any way bind another party to any obligation.

1.5 Variation Any variation or amendment to this Agreement must be agreed in writing between the parties.

22. Definitions

Additional Fees takes its meaning from clause 4(b) .
Agency means Oceania Marketing Group Pty Ltd ACN 670 680 458 and its permitted novates and assignees.
Agreement means the legally binding agreement arising between the Agency and the Client, consisting of these Terms of Service and the Proposal.
Bug means any syntax error, compiler error, runtime error, or other bug or defect arising due to a Deliverable malfunctioning. For the avoidance of doubt, a Variation will not constitute a Bug.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the location in which the obligation to be performed, is performed.
Client means the party to who the Proposal is addressed.
Commencement Date means the date of this Agreement as set out in the Proposal.
Client Materials means any material including documents, information, images, data or Intellectual Property provided by the Client to the Agency in connection with this Agreement.
Confidential Information means information, which is by its nature confidential, including but not limited to: (a) information relating to the personnel, policies, practices, clientele or business strategies of the parties; and
- (b) information relating to the terms of this Agreement, but does not include:
- (a) information already known to the receiving party at the time of disclosure by the other party; or
- (c) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Deliverables means any output produced by the Agency as anticipated during the provision of the Services. Agency IP means any Intellectual Property which are independently created by the Agency and which are in existence before the date of this Agreement; or come into existence after the commencement of this Agreement but are not created exclusively for the Client in connection with this Agreement.
Fees means the fees set out in the Proposal.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, hacking, industrial action or labour disturbance, currency restriction, embargo, pandemic, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all Moral Rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field. Issue takes its meaning from clause 5(a) .
Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.
Moral Rights means moral rights under the Copyright Act 1968 (Cth), or any similar rights existing under foreign laws.
New IP means any Intellectual Property generated under this Agreement but excluding the Client Materials and the Agency IP. Non-excludable Condition means any guarantee, condition or warranty (including the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Operational Requirements takes its meaning from clause 13(a) .
Payment Terms takes its meaning from clause 14(c) .
Product means any website, mobile application and associated third party plug-ins and includes the content of any such product.
Proposal means the proposal or quote to which these Terms of Service are attached.
Services means the services provided by the Agency to the Client, as specified in the Proposal.
Special Conditions are terms set out in the Proposal under the section entitled “Special Conditions”. Targets takes its meaning from clause 10(a) .
Taxes mean all charges including without limitation all stamp duties, goods and services taxes, value added taxes, export duties, withholding tax, financial institution duties, tariffs and any other charges or duties of a like kind.
Term means the duration of this Agreement as set out in the Proposal, and if not referenced is ongoing until terminated in accordance with clause 18 . Variation takes its meaning from clause 4(b) .
Warranty Period takes its meaning from clause 5(a) .

Terms of Service

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