Terms and conditions
The client (herein the “Client“) named in the attached Digital Marketing Proposal (“the DMP“) agrees with Bang Digital (ACN 124 868 113) (“Bang Digital“) that in consideration of Bang Digital agreeing to provide the Services to Client the following terms and conditions shall apply:
1. Legal Agreement:
This agreement (which includes the DMP) shall be a legal agreement between Client and Bang Digital. The agreement shall constitute the entire agreement between Client and Bang Digital in relation to the Services and the DMP and it shall not include any terms and conditions of Client (including on any purchase order or other document submitted by Client) unless agreed to in writing by Bang Digital.
2. Term of Agreement:
This agreement commences on the start date specified in the DMP (start date) and is for an indefinite term unless a finish date is specified in the DMP or the agreement is ended earlier in the matter permitted by this agreement.
3. Services Bang Digital will provide:
Bang Digital will:
a. provide the work and services to be carried out by Bang Digital as described in the DMP(the “Services“);
b. where a maximum time per month for the provision of the Services is set out in the DMP, provide the Services for a period of time up to that maximum amount per month;
c. use its best endeavours to ensure the Services are provided in compliance with all relevant Australian legislation;
d. provide the Services with care and skill and will exercise professional judgement free from any conflict of interest;
e. provide support in respect of the Services as specified in the DMP;
f. act in Client’s best interests but will not do anything which is unethical or unlawful;
g. keep records of work performed under this agreement and provide copies of those records to Client on request; this includes all digital files.
h. provide only the resources specified in the DMP as required to be provided by Bang Digital to deliver the Services;
i. provide the Services to Client alone and will not regard any other entity as its client in relation to the Services; and
j. unless otherwise stated in the DMP, shall determine at its discretion the personnel who will provide the Services.
4. Additional Services:
a. At the request of Client, Bang Digital may provide work and services additional to the Services including:
b. any additional services set out in the DMP; and updates required as a result of changes to any relevant digital interface or services required in respect of matters set out in clause 5.
c. Client agrees and acknowledges that:
(i) the fee for any Additional Services is not included within the fee for the Services and will be charged at Bang Digital’s time based charge out rates, as set out in the DMP; and
(ii) by submitting a quick quote or other form of purchase order to Bang Digital in respect of any Additional Services, Client agrees to pay for the Additional Services.
5. Limitations on services:
a. search engines may stop accepting submissions for an indefinite period of time. Search engines may re-rank or exclude websites and webpages for no apparent or predictable reason. Often a webpage will reappear without any additional submissions. Should a webpage not reappear, Bang Digital will, at a cost agreed with the client, re-submit the site based on the current policies of the search engine in question.
b. Social media platforms change their interfaces on a regular basis. Unfortunately Bang Digital cannot pre-empt these changes. This may require us to redesign your social media pages, for which a quotation will be provided.
c. any modification of Client’s website by Client or any third party may impact on the listing or ranking of Client’s website. Any work or services required by Bang Digital as a result of such modification shall be Additional Services; and
d. Bang Digital will not provide the following services under this agreement (Bang Digital may at its discretion provide these services as Additional Services at the request of Client):
i. support outside Business Hours. In this agreement, Business Hours means 9am to 5pm Perth time on any day except a Saturday, Sunday or public holiday in Western Australia;
ii. support of or assisting the client in the use of operating systems, ancillary services or software or other platforms;
iii. managing authorised usernames and passwords;
iv. installing or managing Client’s security measures;
v. support where Service impairment results from installation, un-installation, or use of other software applications;
vi. recovery of damage or data loss arising from hard drive or CPU failure, network failure, misuse, negligence, alteration, improper wiring, malware, viruses or failure to complete daily and weekly backups;
vii. support where Client has failed to implement a recommendation from Bang Digital where in the reasonable opinion of Bang Digital the recommendation should be implemented to ensure Bang Digital can properly deliver the Services; or
viii. consulting services or accelerated development or advanced customisations of or enhancements to or new features of the Services.
7. Items to be provided by Client:
a. provide to Bang Digital all items and materials to be provided by Client as stated in the DMP and all information and materials relating to Client’s requirements with respect to the Services, including as regards scope and timing;
b. obtain all approvals which are required for the lawful provision and use of the Services; and
c. appoint a person to act as Client’s representative, which person shall be deemed to have authority to act on behalf of and bind Client in connection with this agreement.
8. Client Authority, Exclusivity and Warranties:
a. Client authorises Bang Digital to:
i. conduct all activities as may be required to perform the Services, including submitting websites to search engines and any other resources or relevant sites; and
ii. modify any of Client’s websites, including modifying the metadata of any website, for the purposes of providing the Services;
iii. use relevant keywords and phrases, including intellectual property belonging to Client, for the purpose of delivering the Services.
b. During the term of this agreement, Client shall not permit any search engine optimisation provider to:
i. perform or deliver any service which is within the Services; or
ii. have access to any of the Client’s websites that are part of the search engine optimisation service.
c. Client agrees that Bang Digital will not be responsible for any of the Client’s websites or search engine rankings if Client does not comply with clause 7b.
d. Subject to clause 7b, if Client is required to give access to Client’s website to any third party, Client must give prior notice to Bang Digital.
9. Client’s Responsibilities:
In order to ensure that Bang Digital is able to properly deliver the Services, Client:
a. must ensure that Client’s websites are active and accessible by Bang Digital at all times;
b. must notify Bang Digital each time any modification to Client’s websites is made where that modification may affect the delivery of the Services by Bang Digital;
c. must not install or use software that may, in the reasonable opinion of Bang Digital, impair the proper delivery of the Services by Bang Digital;
d. agrees to inform all third parties with access to Client’s websites, including webmasters, that Bang Digital has been engaged to provide the Services;
e. agrees that if Bang Digital:
i. reasonably determines that Client’s web hosting provider may be part of a ‘bad neighbourhood’; or
ii. considers that for optimisation of the Services, Client should change its’ web hosting provider,
iii. then Client will, at Bang Digital’s request, change its web hosting provider.
10. Support Provided:
a. Bang Digital shall use commercially reasonable efforts to provide support on the terms set out in the DMP but does not guarantee that any defects in the Client’s websites or Services will be fixed by Bang Digital.
b. Client acknowledges that Bang Digital relies on third party interfaces and databases to deliver the Services and as a result Bang Digital cannot guarantee uninterrupted access to and use of those third party internet interfaces and databases at all times.
Except as otherwise agreed in writing with Bang Digital;
a. the fee for the Services will be as specified in the DMP;
b. Bang Digital reserves the right to adjust its time based charge out rates on each 1 January and 1 July by an amount not less than the change in the Consumer Price Index (All Groups) Perth in the preceding six months.
a. Client agrees that external disbursements are not included in Bang Digital’s fees. Client agrees to reimburse reasonable business expenses incurred by Bang Digital in the performance of the Services. Bang Digital will always seek authorisation from Client prior to incurring such expenses.
b. Bang Digital agrees to provide Client with tax invoices for all expenses Bang Digital seeks to have reimbursed.
13. Tax invoices:
a. will be issued by Bang Digital and must be paid on the terms of 30 days unless otherwise specified or agreed on the invoice;
b. shall be deemed correct unless disputed in writing within 7 days of the date of the invoice;
c. must be paid in full notwithstanding any counter claim or set-off Client may claim against Bang Digital; and
d. that are not paid in full and on time will attract interest at 15% per annum, calculated daily.
e. The Customer shall pay the Supplier for all costs actually incurred by the Supplier in the recovery of any monies owed by the Customer to the Supplier under this Agreement including recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis.
f. All payments for advertising budgets must be paid by the client based on any of the payment options made available in Appendix A; Advertising Budgets paid your behalf by Bang Digital will incur a 5% admin fee.
g. For payments made by way of Direct Debit (pre-pay):
i. The client must ensure that sufficient cleared funds are available in their nominated bank account on the day that the payment is due to be initiated;
ii. Budget payments to the end supplier will only be made on your behalf upon successful completion of the direct debit transaction and confirmation from EziDebit of the transfer of funds to our bank account;
iii. Any failed direct debit transactions will incur an additional failed payment fee charged directly to your account by Ezidebit in line with their fee schedule at the prevailing rate at the time the debit is initiated. Please note that this fee is controlled by EziDebit, may change from time to time and is outside the control of Bang Digital. Bang Digital will not be held responsible for any campaigns going offline as a result of failed payments;
iv. A receipted tax invoice will be sent to you upon successful completion of the transaction;
h. For payments made by Credit Card direct to the end provider (post-pay):
i. The client will be responsible for ensuring that there are sufficient funds available in their denominated credit card for payments to be deducted as required;
ii. The client will be responsible for any credit card fees imposed by your bank in relation to these transactions;
iii. Bang Online will not be held responsible for any campaigns going offline as a result of failed payments;
14. Confidentiality: Bang Digital and Client each agree:
a. not to disclose or use for an improper purpose any Confidential Information received or obtained from the other party; and
b. that each party can disclose Confidential Information received by it if, and to the extent,:
i. required by law or required by a Court, stock exchange or regulatory or governmental body; or
ii. the information is disclosed on a confidential basis to professional advisers or bankers; or
iii. the information is disclosed to a director, officer, employee or agent of the party whose function requires them to have the information; or
iv. the information is in the public domain otherwise than through the fault of the disclosing party; or
v. the other party has agreed to the disclosure in writing,
vi. provided a party intending to disclose information under any of paragraphs i., ii., or iii.above consults with the other party first. If a party makes any disclosure under any paragraphs i. and ii. above it must inform the other party as soon as possible;
c. “Confidential Information” means all trade secrets, know-how, financial, marketing, management, technical and other information which is confidential or of a sensitive nature, including information regarding business strategy and processes, but excludes information in the public domain.
d. Client agrees that the identity of Client is not Confidential Information and that Bang Digital may disclose to third parties that Bang Digital has been engaged by Client.
Client agrees that, except as expressly stated in the DMP:
a. Bang Digital owns all title, ownership, moral and proprietary and intellectual property rights (including copyright), registrable or not, in and to all deliverables, materials, documents, presentations, reports, software, data and analysis prepared or provided by Bang Digital in connection with providing the Services including the source code and back end tactics used by Bang Digital to optimise any websites (“Documents);
b. it will not publish or transmit outside of its organisation, nor make copies or reproductions of, any such Document unless approval in writing is given by Bang Digital; and
c. Bang Digital may, subject to clause 14, use such Documents for Bang Digital’s technical development and marketing purposes.
16. Licence to Client:
For the term of this agreement Client is hereby granted a limited, revocable, non-transferable, non-sublicensable, royalty free licence to use Documents referred to in clause 15 for the sole purpose for which the Services were provided. This includes the provision of all digital assets to the client, including website development files.
17. Liability and Indemnity:
Client agrees that except to the extent caused by the gross negligence, fraudulent act or omission or wilful breach of this agreement by Bang Digital, Bang Digital and its officers, employees and contractors shall, to the maximum extent permitted by law, not be liable to Client or its officers and employees or contractors or any other entity for any Claims whatsoever:
a. in relation to provision or non-provision of the Services or arising from any act or omission by Bang Digital relating to the Services;
b. arising from any act or omission of any third party, including the unavailability or performance of any search engine, relevant internet interface or database or the listing or ranking of any Client’s website;
c. in relation to the matters set out in clauses 5.a to 5.f inclusive;
d. in relation to the use by Client (or its officers, employees, agents or contractors) of any Documents;e. in the event that any transaction contemplated by Client does not proceed; or
f. in relation to acts or omissions of Client or any third party,
g. and Client shall and hereby does indemnify and hold Bang Digital and its officers, employees and contractors harmless from all such Claims. In this agreement “Claim” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation for legal costs or special, indirect, punitive or consequential damages, loss of profit or business opportunity or payment of liquidated sums).
18. Time Limit on Claims:
To the maximum extent permitted by law, Bang Digital shall be deemed to have been discharged absolutely from all Claims for liability arising from the Services (or from any act or omission of Bang Digital relating to the Services) at common law or equity or under statute after the expiration of one year from the completion of the Services. Client agrees that it and any persons or entities claiming through Client shall be barred from commencing any action, proceeding or claim whatsoever against Bang Digital, its officers or employees in respect of the Services. The date of completion of the Services will be the date of the last invoice issued by Bang Digital for the Services.
a.Subject to clause 20.b and to the maximum extent permitted by law the Services are provided without any warranties of any kind, either express or implied, including warranties of title, non-infringement of fitness for any purpose, accuracy, completeness or currentness. Any warranty which is implied by law or statute is excluded to the maximum extent permitted.
b.The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to supply of the Services and cannot be contracted out of, they apply and override any inconsistent provisions in this agreement but only to the extent of the inconsistency. Where Client is entitled to a statutory right or term that Bang Digital is not able to exclude but Bang Digital is entitled to limit its remedy for a breach of that right or term, then Bang Digital’s liability for breach of that right or term is limited to (at Bang Digital’s election) the supplying of the services again, or the payment of the cost of having the services supplied again.
20. Non solicitation:
a. not to, directly or indirectly, employ, solicit, engage or direct for purposes of employment or contracting services any of Bang Digital’s staff or contractors during the term of this agreement and for a period of 12 months thereafter;
b. that if it does not comply with paragraph a above, it will pay to Bang Digital on demand a placement fee of:
i. in the case of a Bang Digital employee, 100% of the employee’s total annual remuneration package from Bang Digital (including superannuation)
21. Delay/Force majeure:
If Bang Digital is restricted or prevented from performing any of its obligations under this agreement due to any cause or delay whatsoever outside the reasonable control of Bang Digital including the unavailability of any relevant internet interface or database, then Bang Digital may give notice of such cause to Client and the time for performance of Bang Digital’s obligations shall be extended by the period the cause continues. If the Services have not been provided by 60 days after the original due date either party may terminate this agreement and if this occurs Bang Digital shall have no liability whatsoever to Client.
22. Suspension, Expiry and Termination:
a. Bang Digital may suspend the delivery of the Services during any period in which an amount owing by Client pursuant to this agreement is overdue. If your final payment is not made for the website development project, Bang Digital reserves the right to remove your website from the live environment until the payment is made. Please note we will provide you with warning before this happens.
b. If either party is in breach of this agreement then the party alleging the breach may service a default notice on the other party settling out the full particulars of the alleged breach and the acts required to rectify the breach.
c. If not terminated sooner under paragraph e. of this clause 23, the engagement of Bang Digital expires at the earlier of the completion of the Services or the finish date specified in the DMP (if any).
e. A party may terminate this agreement only:
i. if the DMP expressly states that either party may terminate this agreement by notice to the other party, in which case this agreement will terminate on the date that is twenty Business Days after the date such a notice is given, provided that during that period of twenty Business Days all fees and charges as set out in the DMP will continue to be payable; or
ii. if it has issued a notice of default pursuant to clause 23.b and the default alleged therein remains unrectified 10 Business Days after service of the default notice (and termination will take effect on the 11 Business Day after service of the default notice provide a notice of termination is given); or
iii. if the other party goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or becomes subject to Part X of the Bankruptcy Act 1966 (and termination will take effect on giving of a notice of termination).
All fees referred to in this agreement do not include goods and services tax (GST) unless expressly stated in the DMP. In this agreement “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
a. Reference in this agreement to the singular includes the plural, and to any party to this agreement includes the party and its successor, administrator, personal representative, transferees and assigns.
b. A notice to be served under this agreement will be duly served if it is in writing and is sent to the address appearing in the OMP for each party by certified mail, facsimile, personal delivery or email, provided there is proof of delivery.
c. Neither party may assign or transfer any right or obligation under this agreement without the written consent of the other.
d. If any provision or part provision of this agreement is invalid, unenforceable or illegal then it shall be deemed deleted and the remaining parts shall continue to apply with full force and effect.
e. This agreement is governed by the law in force in Western Australia. Each party irrevocably submits to the jurisdiction of the courts of Western Australia with respect to any Claim which may be brought at any time relating in any way to this Agreement.
f. This agreement may only be varied in writing signed by both Parties.
g. Any omission by a party to enforce any provision of this agreement shall not operate as a waiver and will not prejudice the rights of the party to enforce any of the provisions.
h. All provisions in this agreement in respect of indemnities, IP ownership, confidentiality and non-solicitation survive the termination of this agreement.
i. In offering our services to you we are not excluded from offering our services to other organisations, whether competitive to yours or not, unless a separate (from this agreement) exclusive provider contract has been entered into and we are under no obligation to reveal our client list to the public and/or to other clients.