1. Definitions

The Agreement, as varied from time to time in writing, applies to all sales of goods and the provision of all services by the Supplier to the Client pursuant to the Agreement.

• “Agreement” means the terms and conditions herein and the Proposal.
• “Supplier” means The Trustee for Growthly Marketing (ABN 98 620 576 089).
• “Client” means the person and/or business described within the Proposal.
• “Authorisation” means the acceptance of the Proposal, making a payment or signing this Agreement. 
• “Fees” means the amount contained in the Proposal.
• “Website” means the Client’s website designed, built and/or hosted pursuant to this Agreement.
• “Intellectual Property” means the intellectual property attaching to the Services including copyright, patents, trademarks, design rights, domain names whether registrable or not and whether registered or not. 
• “Confidential Information” means all the information provided by one party to the other in connection with this Agreement where such information is identified as confidential or ought reasonably be considered to be confidential based on its context, nature or the manner of its disclosure, but excluding
  • information that is in the public domain other than by a breach of this Agreement; and
  • information developed independently by a third party.

Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Proposal.

2. Offers

The Client engages the Supplier to provide the Services as defined in the Proposal. To accept the Supplier’s offer to provide the Services, the Client must execute this agreement or pay either the agreed deposit or agree to a payment schedule (any of these acts, individually or combined is considered “Acceptance”). If Acceptance does not take place within 28 days from the date the Agreement is provided to the Client, then the Supplier’s offer to provide the Services will expire without further notice to the Client

3. Services

The Supplier will provide the chosen services to the specifications contained in the Proposal (herein referred to as “the Services”).

4. Fees

The Client agrees to pay the Supplier the Fees for the Services as contained in the Proposal. The Supplier may, at the cost of the Client, engage the services of a debt recovery agency or law firm to assist with the recovery of the Fees, if payment is more than 7 days late.

5. Notices

All notices must be in writing and can be given by:

a) Hand delivery; or
b) Email.

A notice is deemed to be given and received:

• If delivered in accordance with clause 1, on the next Business Day after delivery;
• If sent in accordance with clause 2, on the next Business Day after sending.

6. Breach & Termination

The Client will be in breach of this Agreement upon:

a) failing to pay the Fees in accordance with the Proposal or agreed payment schedule;
b) contravening any obligations pursuant to the terms of this Agreement;
c) failing to respond to the Supplier’s communication in a timely manner;
d) failing to act in a professional manner;
e) disparaging the Supplier on social media, forums, reviews or websites;
f) failing to supply adequate access to any of the following: client’s website, Google Ads account, Google Analytics, Facebook Ad Management, cPanel, FTP or CMS logins within 14 days of signing the Agreement.

The Supplier may terminate this Agreement if the Client has failed to remedy any breach within 14 days of notice. If the Client cancels any Direct Debit Authority, this does not affect the Client’s liability to pay the Fees in full under the Agreement.

7. Confidentiality

A party must not, without the prior written consent of the other party, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or regulatory authority.

A party may:

• use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
• disclose the Confidential Information to its employees or advisers to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

8. Indemnity

The Client hereby unconditionally and irrevocably agrees to indemnify and keep indemnified the Supplier, its officers, employees and agents against any and all, including Third Party, actions, claims, demands, losses, liabilities or costs (including legal costs) that arise, or result from, or are in any way connected with the Services, including but not limited to the sale of any product or service via the Client’s Website.

9. Limitation of Liability

The Supplier excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages or loss. To the full extent permitted by law, the Supplier excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement or the Proposal. If failure to supply is caused by matters beyond the Supplier’s reasonable control including (without limitation) acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts, inability to obtain necessary supplies and any other force majeure occurrence. This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations.

10. Warranties

Each party warrants that:

• the execution and delivery of this Agreement has been properly authorised;
• it has the full corporate power to execute, deliver and perform its obligations under this Agreement;
• this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
• other than in relation to material included in the Services by the Client or any third party from time to time, any use of the Services by the Client in accordance with this Agreement will not infringe the right of any party and will not breach any applicable law.

In addition, the Client warrants that any material which the Client causes to be published, displayed or contained with the provided Services will not contain any illegal or unethical material and the copyright for all, text, images and materials used is owned by the Client.

11. Web Design and Landing Page/Microsite

Upon request by the Client, the Supplier agrees to design and develop a website or landing page/microsite in accordance with the Proposal. Before the Supplier commences work, the Client must pay the Supplier 100% of the Fees outlined in the Proposal and the balance prior to the website or landing page launch. During the design phase, the Client is entitled to 1 revision of the landing page or 2 revisions of the website. This is included in the fee outlined in the Proposal. After approval of the website or landing page by the Client, any requested adjustments, modifications, amendments or improvements in usability, functionality or design are considered outside of the original Proposal and additional Fees will apply.

12. Google Ads

Upon request by the Client, the Supplier agrees to provide the Client a management service of a Google Ads account in accordance with the Proposal. For the purpose of providing this service, the Client authorises the Supplier to create a Google Ads account on his/her/its behalf, including but not limited to Google Analytics. The Supplier will build the Google Ads account in the Supplier’s own ‘My Client Centre’ (herein referred to as “MCC”), and will own all data associated with it. The Client acknowledges that Google Ads are subject to Google’s Terms and Conditions. The Supplier is not liable if the Client’s Google Ads account or campaigns are rejected and/or disabled by Google. The Client acknowledges that the Supplier makes no warranty or cannot guarantee that Google Ads will generate any increase in sales or business activity and he/she/it will not hold the Supplier liable for any loss or damage arising from the Google Ads management. The minimum Google Ads management term is a period of 3 months and will continue thereafter on a month-to-month basis until the Agreement is terminated by the Client providing 30 days written notice. In the event the Client terminates the Google Ads service or this Agreement within the minimum 3 month term, the remaining term becomes due and payable immediately by the Client. During or after the Google Ads management term, the Client will not have direct access to the Ads portal or MCC and the information in the account is intellectual property owned by the Supplier. 

13. Search Engine Optimisation (SEO)

Upon request by the Client, the Supplier agrees to optimise the Client’s Website in accordance with the Proposal. As outlined in the Proposal, the Supplier guarantees to rank at least 10% of proposed key phrases on page 1 of Google (pages from Australia) within 90 days, 30% in 180 days and 60% in 365 days (from initial onsite implementation) (herein referred to as “the SEO Guarantees”). In the event the Supplier does not achieve the SEO Guarantees within the timeframe stipulated, the Supplier agrees to continue to provide the service free of charge until the SEO Guarantees are achieved. Notwithstanding the SEO Guarantees, the Client acknowledges that the Supplier makes no warranty or guarantee that SEO will generate any increase in sales or business activity and he/she/it will not hold the Supplier liable for any loss or damage arising from SEO. Further, the Client acknowledges that SEO is governed by many factors which are outside the direct control of the Supplier and may affect the ranking of the website / overall performance of SEO. For example:

• if the Client’s website has poor or duplicate content;
• if the Client’s website is on an SEO unfriendly content management system (CMS);
• if the Supplier cannot get access to the Client’s hosting and or CMS;
• if the Client’s website is suffering from a penalty, either automatic or manual from Google;
• if the Client’s website has an unnatural link profile; or
• if the Client’s website is hosted on a slow or blacklisted server.

In addition, the Client acknowledges that Google continually updates its search algorithm, which may have a negative impact on the Client’s website rankings at any time. In such circumstances, the Supplier will endeavour to rectify any negative impact as quickly as possible but makes no guarantee rankings will improve. In rare circumstances, the Company may have to move the Client’s website to a new domain to remove a penalty and the Client must accept this recommendation. The minimum SEO term is a period of 12 months and will continue thereafter on a month-to-month basis, until the Agreement is terminated by the Client providing 30 days written notice. In the event the Client terminates the SEO service or this Agreement within the minimum 12 month term, the remaining term becomes due and payable immediately by the Client.

14. Facebook

Upon request by the Client, the Supplier agrees to promote the Client’s business on Facebook in accordance with the Proposal. The Client acknowledges that any Facebook advertisement is subject to Facebook’s terms and conditions and Facebook reserves the right to refuse an advertisement and/or disable Facebook ad accounts at any time, and for any reason. If such circumstances arise, this does not affect the Client’s liability to pay the Supplier’s Fees. The Client acknowledges that the Supplier makes no warranty or guarantee that Facebook advertising will generate any increase in sales or business activity and he/she/it will not hold the Supplier liable for any loss or damage arising from Facebook advertisement. The minimum Facebook term is a period of 3 months and will continue for 12 months, thereafter on a month-to-month basis, until the Agreement is terminated by the Client providing 30 days written notice. In the event the Client terminates the Facebook service or this Agreement within the minimum 3 month term, the remaining term becomes due and payable immediately by the Client. During or after the Facebook management term, the Client will not have direct access to their Facebook Ads Manager and the information in the account can be requested by the Client.

15. Hosting

In order to improve results, the Supplier recommends that the Client’s website be hosted on a reliable server, based in Australia. The Client may elect to host their website with the Supplier for an additional annual fee of $462 (plus GST). The Client agrees to pay the annual hosting fee before commencement of hosting services. When the Client’s hosting is due for renewal, the Client must pay the annual hosting fee within 7 days of receiving a tax invoice, otherwise the Supplier reserves the right to suspend or cancel the hosting service. The Client may discontinue the Hosting at any time. However, discontinuing the Hosting does not affect the Client’s liability to pay the Fees. If the Client’s Website is hosted with the Supplier, the Supplier will not under any circumstances provide FTP or cPanel access to websites hosted on its servers without the prior written consent of the Supplier. This is to protect the integrity of the hosting environment and ensure security. The Client acknowledges that the Supplier may from time to time be required to perform maintenance, upgrades or replacements to servers. The Supplier reserves the right to suspend access to such server during the required time to do the maintenance, upgrade or exchange the server. In this event, unless urgent, the Supplier will notify the Client via e-mail at least 24 hours before the due date and time for maintenance

16. Copyright and Intellectual Property Rights

The technology and content provided by the Supplier, unless specified otherwise in writing is owned by or licensed to the Supplier. Content includes but not limited to text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software. For all content, imagery or photography provided to the Supplier in the provision of the Services, the Client hereby warrants:

a) they own the intellectual property rights in that content;
b) that content does not infringe the intellectual property rights of a third party;
c) that content is not fraudulent, stolen, or otherwise unlawful;
d) that content does not violate any applicable law, statute, ordinance or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, or criminal law);
e) that content is not defamatory, unlawfully threatening or unlawfully harassing; and
f) that content does not contain viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware.

The Supplier at its sole discretion reserves the right to refuse any content it considers to be in contravention with any of the above statements. The Supplier and its licensors retain all proprietary rights to that content and technology and other intellectual property rights in any work created, commissioned or otherwise acquired by the Supplier during the implementation of the Services until full payment has been received. Upon full payment, the Supplier hereby agrees to transfer to the Client all rights title and interest in the copyright and other intellectual property rights in all artwork, manuals, information, material reports, source code and other output which is produced, extended or modified during the implementation of the Services.

17. Responsibilities of the Client

The Client acknowledges that if a debit is returned by his/her/its financial institution as unpaid, a failed payment fee is payable by the Client to the Supplier. The Client will also be responsible for any fees and charges applied by his/her/its financial institution for each unsuccessful debit attempt together with any collection fees, including but not limited to any debt recovery agency or law firm’s fee, as may be incurred by the Supplier. The Client authorises the Supplier to attempt to re-process any unsuccessful payments after 3 business days. If the payment remains unsuccessful after 14 days, the Client authorises the Supplier to suspend all services, pending full payment. In the event of a failed payment, the Client agrees to pay the Supplier an administrative fee of $12 per failed transaction within 7 days of an invoice being provided.

18. Assignment

No party may assign or otherwise deal in any way with its rights under this Agreement without the prior written consent of the other party.

19. Severability

If a provision is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

20. Entire Agreement

This Agreement and the Proposal together form the entire agreement between the parties about its subject matter and supersedes all other discussions, negotiations, representations, arrangements, warranties or agreements.

21. Variation

This Agreement may only be amended or varied in writing signed by all the parties.

22. Waiver

Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound. Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Agreement will be binding on the Supplier unless in writing and signed.

23. Jurisdiction

The laws of New South Wales govern this Agreement and each party submits to the exclusive jurisdiction of the courts of New South Wales.