Elite Marketing Media Pty Ltd COMPANY TERMS
Elite Marketing Media Pty Ltd ACN 636 122 462 (‘Elite’ or ‘We’) have agreed to supply Services to the person who accepts this document as the client (You) and You and Elite agree to be bound by the following terms and conditions:
“Loss or Damage” includes but is not limited to direct loss or loss of profits or indirect, consequential, incidental, special, exemplary or punitive loss or damage howsoever caused (including through the negligence of You or others).
“Price” means the price for the Services procured by Us for You at Your request.
“Services” and “Goods” means IT support, Website development / redevelopment and alterations, marketing (including but not limited to online marketing, physically marketing and etc), media, search engine optimisation (SEO), pay per click marketing (including but not limited to Google, Yahoo, Bing and etc), remarketing (including but not limited to add choice, add network and etc), brand development (including but not limited to logo design, branding, colour schemes and etc), promotional products physical (including but not limited to pens, USBs, folders and etc), promotional products online (including but not limited to pamphlets, emails, booklets and etc), marketing and search engine optimisation (SEO) hosting (including but not limited to email hosting, Website hosting and etc), backup solutions and ad hoc matters.
“We” and “Us” means Elite Marketing Media Pty Ltd ACN 636 122 462, its employees, contractors and agents.
“You” means You or anyone other person that gives Us instructions or Your employees, contractors and agents.
Acceptance and Services
1.1 Upon you accepting our Offer, it will be binding on all parties (Agreement). You can accept by either signing these Terms and Conditions; in the application form; on the Elite Marketing Media Pty Ltd Website; in the specific Terms and Conditions that apply to the “Services” in the application forms; in any other documentation annexed to or provided with any of the above documents, including but not limited to text messages, facsimiles, emails; and any other information or instructions provided to Us via any method (together described as the Documents), Signing the Proposal associated with the requested Service(s) or by paying the Deposit to us (Acceptance).If you do not accept the Offer within 28 (twenty eight) days from the date that we provide it to you, we are not obliged to proceed with the Offer at our option. Prior to Acceptance, we may withdraw the Offer by notice to you.
1.2 You acknowledge that We may engage contractors in the performance of the Services.
1.3 Our written quotations provided to You regarding the proposed supply of Services are only valid for 30 (thirty) days.
1.4 To ensure the contracted Services are delivered at optimal performance as outlined in the Service agreement recommendations must be taken on board. Should Our recommendations be disregarded, the anticipated outcome may be impacted.
2.1 We will rely upon the accuracy of any information, documents, advice, records or data You provide to Us. To the maximum extent permitted by law, We are not liable for any Loss or Damage that may arise as a direct or indirect result of any such information, advice, records or data provided to Us by You or by any other entity.
3.1 The minimum period which you must acquire each Service is set out in the respective clause for that Service, unless otherwise indicated in the Schedule in which case the period in the Schedule will apply (Minimum Term).
3.2 The Minimum Term for each Service commences once we inform you that the Service is operating (gone “live”) and is suspended for any period which we agree in writing with you. If suspended, the Service will recommence on our written advice to you.
4.1 This Agreement commences on Acceptance.
4.2 For each Service which specifies a Minimum Term, subject to clause 3, the Agreement in respect of that Service will continue after the end of the Minimum Term for that Service, until it is terminated by either party on one months’ notice or otherwise ends in accordance with the Agreement.
4.3 Each Service may be terminated independently of any other Elite Marketing and Media Services after the end of its Minimum Term.
4.4 For each Service which does not specify a Minimum Term, the Agreement for that Service will continue until the later of us finishing delivery of those Service or termination of this Agreement.
5.1 As an individual/business without prior written authority to defer payment until after Services have been provided You will pay to Us without deduction such fees and other amounts as are described in the Documents. Our terms of trade are payment of estimated amount before commencement of Services. Further, You agree to reimburse Us for all expenses reasonably and necessarily incurred in the performance of the Services as well as any further costs as they eventuate.
5.2 We may incur expenses and disbursements (being money which We pay or are liable to pay to others on Your behalf). These may include search fees; enquiry fees; court filing fees; process servers; courier servers; externally hosted telephone calls; experts’ reports; parking tickets, food costs, parking fees, entry fees or expenses for entry into venues, travel expenses; and transcripts.
5.3 Unless expressly provided otherwise in the Documents, prior to providing the Services, You must deposit all fees estimated within the Documents to a bank account as advised to You from time to time whilst also providing a copy of the deposit receipt.
5.4 Methods of Payment: You may pay by credit card or direct bank transfer. Credit card payments are subject to a 2% transaction fee per payment plus GST. To make payment by Direct Bank Transfer use Our bank details as follows:
Bank: Commonwealth Bank
Account Name: Elite Marketing Media Pty Ltd
Account Number: 1034 1915
BSB: 063 583
Please use the reference of the client’s full name or Our reference number provided to you by Our Office, when sending any information, to assist with timely processing.
5.4.1 You acknowledge that credit card details will be required to be kept on file upon signup in order to keep Your account active and the Services delivered unless otherwise stated in the payment method.
5.5 You have an obligation to pay for all Services that Us has agreed to provide You with, regardless of whether You choose to utilise those Services. If You fail to provide Us with any necessary information or materials in order for Us to deliver those Services to You, You are still liable for full payment to Us.
5.6 Any Service provided to You by Us, including but not limited to Search Engine Optimisation, AdWords, Social Media Services, Website Hosting Services, Remarketing Services and Email Marketing Services will be charged on the last day of each calendar month, for the following month. If You wish to engage in Our Services prior to the 1st day of any month, Your invoice for the specific services will be prorated from commencement of services until the last day of the calendar month.
5.7 You will be sent an email invoice on the 15th day of each month which is due and debited on the last day of each calendar month.
5.8 A $25 late payment charge may be applied to each of Your payment defaults. This late payment fee will be allocated to Our administrative support time to arrange another payment.
Price for Services
6.1 We will charge You fees for the Services We do based on rates as set out within the Documents.
6.2 The parties acknowledge that in the event that any estimate is given, the estimate is merely an estimate only and not a fixed quote. The total costs may exceed the estimate. While the estimate is based on present information and instructions and Our current understanding from You as to what Services are required, Our costs may exceed the estimate if further information becomes available or circumstances change which impact on these matters (which is likely to occur in most circumstances).
6.3 You will be provided with a copy of Our Services, which have been adapted to suit Your requirements.
6.4 Our Services which have been selected for Your requirements, include those referenced in the proposal document provided or other Documents supplied and agreed upon by You.
Website, landing pages, banners and sales funnels
7.1 Where we agree to design and develop a website, landing page, banner or sales funnel (Design Service), you agree:
7.1.1 to pay, as a Setup Cost, 50% of the Fee for the Design Service prior to the commencement of any work on the Design Service, upon acceptance of the proposal; and
7.1.2 the remaining 50% of the Fee is due prior to the ‘launch’ of the website, landing page, banner or sales funnel in the live environment.
7.2 You are entitled to one complimentary amendment to the Design Service. Any further amendments may be accommodated at our absolute discretion and may incur additional fees. If delays caused by you cause the Design Service to extend beyond the agreed delivery timeline by more than 6 weeks, we may terminate the Design Service and you will be responsible for the full Fees of the Design Service.
8.1Where we agree to develop and implement an advertising campaign for you which uses the Google AdWords platform (AdWords Service), you agree that:
8.1.1 the Minimum Term of the AdWords Service is 3 months;
8.1.2 we may create a Google AdWords account on your behalf, including Google analytics if required (AdWords Account);
8.1.3 the AdWords Account is subject to Google’s Ts and Cs and advertising restrictions as modified from time to time;
8.1.4 you will not have direct access to the AdWords Account at any time during the Agreement or after termination of the Agreement;
8.1.5 we own all intellectual property in, and will be solely entitled to all rights in respect of, all content created in associated with the AdWords Service;
8.2 In addition to the Fee for the AdWords Service, you are responsible for any charges imposed by Google in connection with the AdWords Service (AdWords Charge). If an AdWords Charge is not paid on demand, we may, without penalty, suspend your AdWords Service or any other Elite Marketing Media Pty Ltd Service until you pay the AdWords Charge. Notwithstanding the suspension of the AdWords Service or other Elite Marketing Media Pty Ltd Service, you must continue to pay the Fee for the relevant Elite Marketing Media Pty Ltd Service during that suspension);
8.2.1 we may delete the AdWords Account at any time without notifying you;
8.2.2 we do not warrant that the AdWords Service will generate any increase in your sales or business activity;
8.2.3 you will not hold us liable for any loss or damage arising from AdWords Service (other than as a result of our negligence); and
8.2.4 you acknowledge and agree that Google reserves the right to refuse an advertisement at any time, for any reason (Google Refusal) and that such refusal may be outside of our control. Where we receive a Google Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that even if we receive a Google Refusal (other than as a result of our negligence), you remain responsible for the Fees for the AdWords Service.
Search Engine Optimisation
9.1 Subject to the following and any express restriction in our Offer, we will provide Services to optimise your website (SEO Service), in accordance with the timeframe specified in our Offer. We guarantee to rank at least 10% of key phrases
phrases on page 1 of Google (pages from Australia) within 90 days 30% by 180 days and 60% by the 12 month period.
You agree that:
9.1.1 the Minimum Term of the SEO Service is 3 months;
9.2 Our SEO Guarantee does not apply where:
9.2.1 a new domain has been implemented without an existing domain redirecting to it; and
9.2.2 you modify or remove the “on-page” optimisation work (including theme files and scripting) implemented by us;
9.2.3 the SEO Guarantee commences when we notify you that “on-page” optimisation (including content approval by you) is complete;
9.3 We make no warranty that the SEO Service will generate any increase in your sales or business activity;
SEO Service is governed by many factors which are outside our control and may affect the ranking of your website/overall performance of SEO, including if:
9.3.1 your website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty (either automatic or manual from Google), has an unnatural link profile or is hosted on a slow or blacklisted server; or
9.3.2 we cannot get access to your website and/or its CMS;
9.4 Google continually updates its search algorithms, which may change the operation of any SEO Service resulting in a negative impact on your website rankings. In these circumstances, we will endeavour to rectify any negative impact as quickly as possible but give no warranty that rankings will improve. In rare circumstances, we may have to move your website to a new domain to remove a penalty (and if so, you must accept this recommendation and agree to pay any associated costs for any SEO Guarantee to be applicable); and
9.5 We may place in each footer of your web pages (or mobile applications) our “Digital Marketing Elite Marketing and Media” link.
Social Media Service
10.1 Social Media Services include platforms including but not limited to Facebook, LinkedIn, Instagram, Twitter, YouTube, Snapchat, hereinafter referred to as platforms.
10.2 Where we agree to promote your business on social media and social media family of applications (including through advertisements and/or by use of Social Media Ads Managers) you acknowledge that the Social Media Service is subject to the selected platforms Terms and Conditions advertising restrictions as modified from time to time and they reserves the right to refuse an advertisement at any time, for any reason (Social Media Refusal).
10.3 You agree that:
10.3.1 the Minimum Term of the Social Media Service is 3 months;
10.3.2 we will create a Social Media Platform ad account on your behalf, including Google analytics if required (dependent on services listed and level of service provided within Documents);
10.3.3 in addition to the Fees for the Social Media Service, you are responsible for any fees imposed by the Social Media 10.3.4 Platform in connection with the Social Media Service. If a Social Media Platform Fee is not paid on demand, we may, without penalty, suspend your Social Media Service (but the Monthly Fee for the Social Media Service will continue to be charged and payable during that suspension) until the Social Media Fee is paid;
10.3.5 you will not have any direct access to the Social Media Ads Manager at any time during or after the end of the Agreement;
10.3.6 we own all intellectual property in, and will be solely entitled to all rights in respect of, all content created in associated with the Social Media Service;
10.3.7 We make no warranty that the Social Media Service will generate any increase in your sales or business activity; and
10.3.8 you will not hold us liable for any loss or damage arising from the Social Media Service (other than as a result of our negligence). Where we receive a Social Media Platform Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that if we receive a Social Media Platform Refusal (other than as a result of our negligence), you are still liable to pay the Fee for the Social Media Service.
Website Hosting Service
11.1 In order to improve results, we recommend that your website be hosted on a reliable server, based in Australia. You may elect to host your website with us (Hosting Service). If we provide the Hosting Service, you agree that:
11.1.1 the Minimum Term of the Hosting Service is 12 months;
11.1.2 to protect the integrity of the hosting environment and ensure security, we will not provide you with FTP or cPanel access (but may do so at our sole discretion);
11.1.3 we may from time to time be required to perform maintenance, upgrades or replacements to servers (Server Admin) and in those circumstances we reserve the right to suspend access to any Hosting Service. While we will seek to give you notice of any planned Server Admin, where we consider (at our absolute discretion) the Server Admin is urgent we may perform it any time and you acknowledge that this may interrupt your Hosting Service; and
11.1.4 there will be no adjustment to Monthly Fees for the Hosing Service arising from any suspension due to Server Admin.
11.2 If you terminate the Hosting Service, we will:
11.2.1 following satisfaction of all amounts owing to us, provide full cPanel and / or FTP access to you (or your 3rd party provider) to allow you to move your website; and
11.2.2 no longer be responsible for retaining copies of any data relating to your website, including files, databases or design collateral.
11.3 Issues with services or hosting are to be reported in writing via email to our office and:
11.3.1 A response will be provided from Our office within 48 hours.
11.3.2 Any issues identified will be attempted to be rectified within 5 business days
11.3.3 we may seek an extension for any unforeseen circumstances which is automatically granted to Us without additional approval needed by the Client (You).
12.1 Where we agree to manage a remarketing campaign for you (Remarketing Service), you agree that:
12.1.1 the Minimum Term of the Remarketing Service term is 1 month;
12.1.2 you will not have direct access to the Remarketing Service account and all information in that account is our intellectual property;
12.1.3 the Remarketing Service will be subject to the Terms and Conditions of the relevant remarketing platform (e.g. Facebook, Google AdWords and AdRoll or any similar platform (Platform)), and that each Platform reserves the right to refuse an advertisement at any time, for any reason (Platform Refusal).
12.1.4 If a Platform Refusal occurs, we will take reasonable steps to reverse that decision, however, we may not be successful and you agree that if we receive a Platform Refusal (other than as a result of our negligence), you are still liable to pay the Fees;
12.1.5 We make no warranty that the Remarketing Service will generate any increase in your sales or business activity;
12.1.6 you will not hold us liable for any loss or damage arising from the Remarketing Service;
12.1.7 in addition to our Fees for the Remarketing Service, you are responsible for payment of invoices generated by the Platform for their charges, including pay-per-click fees in respect of your Remarketing Service. If an invoice from the Platform is not paid when due, we may, without penalty, suspend your Elite Marketing Media Pty Ltd Services until that invoice is paid;
12.1.8 we may at our sole discretion allow you to update the creative content relating to the Remarketing Service every 90 days from the date we commence providing the Remarketing Service.
Email Marketing Service
13.1 Where we agree to develop and implement an email marketing campaign for you which uses the Mail Chimp platform (Email Marketing Service), you agree that:
13.1.1 the Minimum Term of the Email Marketing Service is 1 month;
13.1.2 we may create an email marketing account on your behalf, including integration with analytics if required;
13.1.3 the fee’s associated for audience size is calculated on audience within the campaign, and is not inclusive of unopened emails, invalid email address’, ‘bounce backs’ and spammed emails. Account is subject to Google’s Ts and Cs and advertising restrictions as modified from time to time;
13.1.4 you will not have direct access to the Mail Chimp Account at any time during the Agreement or after termination of the Agreement;
13.1.5 we own all intellectual property in, and will be solely entitled to all rights in respect of, all content created in associated with the Email Marketing Service;
13.1.6 we do not warrant that the Email Marketing Service will generate any increase in your sales or business activity;
13.1.7 you will not hold us liable for any loss or damage arising from Email Marketing Service (other than as a result of our negligence); and
13.1.8 We have absolute discretion in refusing to send an email with content we believe to be a threat of physical harm (This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others) and / or Hateful Content (This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status).
14.1 Developers, Designs, Copywriters and any other service offered by Elite Marketing Media Pty Ltd are able to be purchased on an hourly basis, as agreed upon in any Document produced by Elite Marketing Media Pty Ltd.
14.2 AdHoc Hours are available to be purchased in 5 or 10hour packages ‘blocks’.
14.3 5 hour AdHoc Blocks are used in 30 minute intervals
14.4 10 Hour AdHoc Blocks are used in 15 minute intervals
14.5 The Adhoc Hours do not expire for the life of an active service with Elite Marketing Media Pty Ltd.
14.6 Tasks, Requests and/or any other Service requested by You which does not fall under a previously agreed ongoing service, are calculated at the absolute discretion of Elite Marketing Media Pty Ltd.
No Warranty for Services
15.1 To the fullest extent permitted by law, We accept no liability for any Loss or Damage arising from Our agreement or dealings with You including (without limitation), the act or omissions of any third party or of any of Our employees, officers, agents, contractors or subcontractors or the failure of, fault or defect, in any contractors or subcontractors or the failure of, or default or neglect, in any Service, network, facilities, Goods, equipment or Service recommended or procured by You and Us in supplying the Services or the contents of any report supplied by Us, or any reliance that You, Your business or any other entity makes on such reports, or use to which You or such entity put such report. To the maximum extent permitted by law neither We or Our servants or agents: shall be liable to any loss suffered by any person or any other entity.
15.2 To the fullest extent permitted by law, we make no warranty that the services provided by Us will generate any increase in your sales or business activity;
15.3 You will not hold us liable for any loss or damage arising from the services We provide you
15.4 SEO Service is governed by many factors which are outside our control and may affect the ranking of your website/ overall performance of SEO, including if:
15.4.1 your website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty (either automatic or manual from Google), has an unnatural link profile or is hosted on a slow or blacklisted server; or
15.4.2 we cannot get access to your website and/or its Content Management System (CMS);
15.4.3 Google continually updates its search algorithms, which may change the operation of any SEO Service resulting in a negative impact on your website rankings. In these circumstances, we will endeavour to rectify any negative impact as quickly as possible but give no warranty that rankings will improve. In rare circumstances, we may have to move your website to a new domain to remove a penalty (and if so, you must accept this recommendation and agree to pay any associated costs); and
No Liability & Indemnity
16.1 To the fullest extent permitted by law, We accept no liability for any Loss or Damage arising from Our agreement or dealings with You including (without limitation), the act or omissions of any third party or of any of Our employees, officers, agents, contractors or subcontractors or the failure of, fault or defect, in any contractors or subcontractors or the failure of, or default or neglect, in any Service, network, facilities, Goods, equipment or Service recommended or procured by You and Us in supplying the Services or the contents of any report supplied by Us, or any reliance that You, Your business or any other entity makes on such reports, or use to which You or such entity put such report.
16.2 You shall indemnify Us for any Loss or Damage that arises directly or indirectly form any non–compliance by You or any other entity with any provision of any contract.
16.3 You unconditionally and irrevocably indemnify, hold us indemnified and keep us, our officers, employees and agents harmless against any and all action, claim, demand, loss, liability or cost (including legal cost on a solicitor and client basis), whether arising under contract, tort or a statute (including by a third party) that arises, or results from, or is in any way connected with the Elite Marketing Media Pty Ltd Services, including the sale of any product or service via your website.
Exclusion of Implied Terms
17.1 Any guarantee, condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
17.2 To the extent any legislation implies any guarantee, condition or warranty, Our liability for breach of such guarantee, condition or warranty shall be limited at Our option to:
17.2.1 If the breach relates to Goods;
126.96.36.199 The replacement of the Goods or the supply of equivalent Goods; and
17.2.2 If the breach relates to Services:
188.8.131.52 The supplying of the Services again or the cost of having the Services supplied again.
17.3 You acknowledge that You have not entered into this agreement in reliance upon any statement (written or verbal) made by Us, other than expressly contained in the Documents.
17.4 While all matters are conducted in a professional manner, We have no warranty or guarantee in obtaining a desired result.
17.5 Any date or period for provision of Service or delivery of Goods provided by Us is intended to be an estimate only and does not represent a contractual commitment. We will use reasonable endeavours to aim to meet any estimated dates provided for completion of Services or delivery of Goods
Default of Payment
18.1 If there is any default of payment of monies due, or any drawn cheques which are dishonoured, then all amounts due and monies which are payable by You on any account at a later day shall become due to be paid immediately without any additional notice. We may, without any prejudice to any other rights or remedies;
18.1.1 Charge You interest at the rate of 2% higher than the corporate reference rate of Our principal bank on any sum due. Interest charges will be calculated daily and every 30 days will be compounded for the period from due date until the date of the full payment; and
18.1.2 impose a charge for any expenses or costs (including debt collection fees and commissions, legal fees on the basis of full indemnity and fees for dishonoured cheques) which We incur resulting from the defaulting, including taking appropriate action to recover amounts due (to clarify, shall include engaging the Services of agencies for debt collection to seek recovery of the due amounts) and
18.1.3 Suspend or cease as We see fit, any supply of further Goods and Services to You; and
18.1.4 By written notice to You, terminate any contract which is as yet unperformed by Us; without any effect on Our rights accrued under this or any other contract.
18.2 Clause 18.1 may also rely upon, at Our option:
18.2.1 where as an individual, You declare bankruptcy or enter into schemes of arrangement, assignment or composition with or for the benefit of any type of Your creditors; or
18.2.2 Where Your corporation enters into any scheme of arrangement, assignment or composition with of fort the benefit of any type of Your creditors, or You appointed a liquidator, administrator, receiver or manager appointed or any action is instigated for or with a view for Your liquidation (including provisionally liquidated), dissolution or winding up.
18.3 Outstanding Payments In some circumstances, we may need to refer or sell overdue debts to debt collectors or other companies. If We do this, We will give them secure access to the personal information they need to handle the debt.
We may also update credit reporting agencies about some types of payment defaults, although We’ll always tell You before We do this.
18.4 A $25 late payment charge may be applied to each of Your payment defaults. This late payment fee will be allocated to Our administrative support time to arrange another payment.
Passing of Property
19.1 Until the payment in full as cleared funds is received by Us for all supplied Goods as well as other amounts owed to Us:
19.1.1 Title and property of all Goods remain vested in Us and will not pass to You;
19.1.2 You must hold any Goods as fiduciary bailee and Our agent;
19.1.3 You must keep any Goods separate from any other Goods and have the labelling and packaging maintained
19.1.4 You hereby undertake for Us to hold proceeds of any sale of Goods on trust for Us within a separate account, however failure to do so does not affect Your obligations to deal with any proceeds effectively as Our trustee
19.1.5 Without any notice, We may enter any premises in which We suspect the Goods may be located and remove them, notwithstanding that they could have been attached to any Goods not Our property, and for this purpose You license Us irrevocably to enter such premises and indemnify Us holding Us harmless against and from all claims, costs, actions or demands by any other party arising from any such action.
20.1 You acknowledge that We may terminate this agreement by giving You 48 business hours’ notice. Upon termination, You will be liable for all amounts owing to Us up to the date of termination and payable within seven (7) calendar days.
20.1.1 If, through circumstances which are outside of Our reasonable control, We are unable to complete delivery or provision of Services or Goods, then We may provide notice in writing to cancel Your order (even if the order has previously been accepted).
20.2 You acknowledge that any cancellations for the Services after engaging Our Services or commencement of planning/research/strategizing by Us (as determined by Us acting reasonably), You will be liable for all expenses or fees (including but not limited to travel charges) incurred by Us.
20.3 You acknowledge that any cancellation for onsite IT related Services, You provide at least 24 hours’ notice. You acknowledge that if You supply less than 24 (twenty-four) hours’ notice to cancel the request for onsite IT related Services, We may charge a fee for cancellation which is equal to the initial hour of Service at the quoted rate from time of booking, to cover loss and expenses caused.
20.4 You acknowledge that, during the minimum contract period, You cancel the Service or We cancel the Service because of Your default, You may be liable to pay an early termination charge of the minimum contract period in full, which is either set out in the plan brochure; in the Service description; in the application form; on the Website; in the specific terms & conditions that apply to the “Services” in the application forms; in any other documentation annexed to or provided with any of the above documents, including but not limited to text messages, facsimiles, emails; and any other information or instructions provided to Us via skype or any other method (together described as the Documents).
20.5 You acknowledge that, once the minimum contract period is over, or Your Service is on a month-to-month plan, Your Service will continue to renew automatically, and You will continue to be charged for the Service, until such time as You or We cancel the Service by giving 60 days’ notice.
20.5.1 Once Your defined minimum Service period has been met, Your Service will automatically operate on a month to month plan by default unless a new agreement has been entered into. A month to month plan begins upon the invoice issue date 3 Weeks before the monthly billing cycle commences.
20.5.2 A 60-day notice period is required to terminate Services in which it takes effect when all previous commitments have been fulfilled.
20.5.3 By default, Your minimum commitment period is on a month to month basis unless otherwise specified in Your agreement.
20.6 With Services paid over a contracted period, on early cancellation will require the remaining balance paid under the grounds that: The Service is paid for in instalments as the setup is in proportion to the whole Service.
20.7 You agree that in the event that any amount owed is not paid within seven (7) calendar days of termination of agreement that any costs to retrieve the debt including but not limited to referring to a third-party debt collection agent, legal practitioner or other associated costs including interest (as per Section 8 point A) will be added to Your account and is payable by You.
20.8 All notices must be in writing and may be given by personal delivery, post or email. A notice is deemed to be received if:
20.8.1 by personal delivery, on the Business Day after delivery;
20.8.2 sent by post, on 5 Business Days after the day of posting; and
20.8.3 sent by email, on the Business Day after sending (unless within 12 hours of sending, the sender receives an automated delivery failure notification).
21.1 You will keep confidential at all times all information supplied by You to Us or by Us to You.
21.2 These terms and conditions and the Documents contain the whole of the agreement between You and Us.
21.3 Any illegal or invalid provision of Our agreement will be severable to the extent required to make this agreement enforceable and all other provisions will remain in full force and effect.
21.4 Any notice required to be given by either party must be delivered personally, or sent by pre-paid mail or by facsimile to the address of the other as last notified, or sent via email to the to the email address of the other as last notified.
21.5 This agreement shall be governed and construed in accordance with the laws of Victoria and the parties hereby submit to the jurisdiction of the Courts of that state.
21.6 Unless expressly stated otherwise, the charges payable for the Services under this agreement are exclusive of GST (Government State Tax). You must pay to Us in addition to the charges for the Services an amount equal to any GST (Government State Tax) payable on the supply of the Services. That additional amount is payable at the same time any part of the charges for the Services is payable. We will issue a tax invoice to You for the supply of those Services at or before that time.
21.9 We may place in each footer of your web pages (or mobile applications) our “Powered by Elite Marketing and Media” link, or to that effect.
22.1 You acknowledge that data loss is an unfortunate possibility with computer malfunctions. We highly recommend that You protect Your company from data loss by having an appropriate back-up solution. You should ensure that all critical files are backed up regularly. As a fundamental term of Our conditions, You acknowledge that You have backed up all data, files and software that are stored on Your computer system prior to undertaking Our Services. We and/or any third-party Service providers accept no responsibility at any time for any alteration, corruption or loss of any such data, files or software.
22.2 You are deemed solely responsible for all input of data, the manner in which Goods are used by all those provided with access and outputs are derived from, and all other processing results.
22.3 At Your own expense, You shall comply with any guidelines or recommendations with respect of the Goods use including replacements or adjustments required for software or equipment which is incidental or necessary for the use of Goods
22.4 You shall ensure that any operators are adequately informed and trained as to use of Goods and will comply with any procedures or guidelines supplied by Us and/or third-party manufacturers occasionally.
22.5 You shall report any faults or errors promptly in any aspect of the operation of the Goods or any provision of Services. You shall also perform general testing, housekeeping, adjustments and/or maintenance as recommended in respect of the Goods and/or Services supplied by Us to maximise the performance and availability of Goods or permit Us to perform any number of Our obligations here under.
22.6 You agree to exercise due diligence and carry out precautions which may have been recommended by Us or required otherwise as a matter of prudence which are in connection to the performance of Us for Our obligations here under, such as but without limitation of the generality of foregoing, advising members of staff of scheduled downtime, system restarts, recording of information for errors, and will co-operate with any other administration system activities for example, but not limited to tasks for operational readiness and running diagnosis tests.
22.7 You warrant and represent to Us that You are the rightful owner of, and/or have the right of possession of, to make decisions regarding all media, data or equipment (“Data”) which is provided to Us, and that You have previously obtained any necessary consents as required by the Privacy Act 1988 in relation to personal information disclosure by You to Us and to the use of such personal information by Us, and that Your possession, collection, transfer and processing of such data complies with privacy and data protection laws to which You are subject. You indemnify Us from any type of expense (including reasonable fees for legal Services) liability or damage arising from any claim, suit or demand resulting from breaching Your warranties.
22.8 Our onsite Services involve technicians from Us visiting You at Your residence or other location (premises) as requested by You.
22.8.1 You must ensure that for the duration of the onsite Service provision there is a person who is over 18 years of age present.
22.9 You must provide Our technicians with:
22.9.1 Access, Username, Login address, Passwords and any other relevant information to access your existing systems including but not limited to any electronic offering, device or computer code, your website, Google AdWords account, Google Analytics account, Social Media Page(s) (including but not limited to Facebook, LinkedIn, Instagram, SnapChat, Youtube, Twitter), Social Media Ad Management account(s), cPanel account(s), File Transfer Protocol account or Content Management System account. You must provide this information or access within the later of 14 days of Acceptance or when the information or access becomes first available to you.
22.9.2 Access to any areas of Your premises which are necessary to provide Our Services;
22.9.3 Any passwords necessary for Your computer;
22.9.3 Working space and an environment which is safe to work in
22.9.4 Electrical power and where applicable internet access
22.10 If the Service involves installation of software, You must provide the technician with installation disks for software or operating system including any product keys for software.
Copyright in Software
23.1 We accept no responsibility to You or third parties for any breaches in software licencing in respect of the software provided by You to Us for installation on to Your computer
23.2 You hereby warrant that You possess valid licences in respect of such software and shall indemnify Us to be held harmless against any losses, costs, harm, damage or other expenses whatsoever which arise either indirectly or directly as a result of Us installing any software at Your request.
24.1 Each party warrants that:
24.1.1 they own or are licensed to use in the manner contemplated by the Agreement the technology used in the Elite Marketing Media Pty Ltd Services and all works (as defined in the Copyright Act 1968 (Cwlth)) including text, graphics, imagery, photography logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software and other content provided by that party (directly or indirectly) (Content), unless specified otherwise in writing; and
24.1.2 Content which they provide to the other party:
184.108.40.206 does not infringe the intellectual property rights of a third party;
220.127.116.11 is not fraudulent, stolen, or otherwise unlawful;
18.104.22.168 does not violate any applicable law, statute, ordinance or regulation (including those governing export control, consumer protection, unfair competition, or criminal law);
22.214.171.124 does not unlawfully threaten or harass any person (in our reasonable opinion) or is defamatory (or any equivalent); and
126.96.36.199 does not contain viruses or other computer codes, files or programs which limit or destroy the functionality of other Content or computer hardware.
24.2 We reserve the right to refuse any Content that we consider to be in contravention of any of the above.
24.3 Each party will retain all its rights in respect of its existing Content. You agree that we own all the Content created by Us in connection with the Agreement (Created Content). You will not have any rights to the Created Content even after the payment of our invoice(s) and/or the termination of the Agreement.
No representation or reliance
25.1 You acknowledge that neither We nor any person acting on behalf of Us has made any representation or other inducement to it to enter into these Conditions, except for representations or inducements expressly set out in these Conditions.
25.2 You acknowledge and confirm that You do not enter into these Conditions in reliance on any representation or other inducement by or on behalf of Us, except for representations or inducements expressly set out in these Conditions.
25.3 Without limiting the generality of clauses 16.1 and 16.2, You understand and hereby confirm that:
25.3.1 Your decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by Us or any person on its behalf in relation to the capacity, Uses or benefits that might or would be derived or obtained from the Goods or Services, except as expressly set out in these Conditions
25.3.2 You have relied on Your own skill and judgement in deciding to purchase and acquire the Goods and Services.
26.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
26.1.1 Embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
26.1.2 Supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
26.1.3 All disputes will be dealt with strictly in the Victoria legal system unless otherwise stated in writing.
27.1 This Agreement is governed by and must be construed according to the law applying in Victoria. The Parties hereby irrevocably submit to the jurisdiction of the courts of Victoria.