TERMS AND CONDITIONS
These terms and conditions are between Click Click Media Pty Ltd (ABN 87 651 496 570), (we, us or our) and you, the party stated in the Quote (you or your), together the Parties and each a Party. These terms and conditions and the Quote form the entire agreement under which we will provide the Services to you.
1. OUR DISCLOSURES
1.1 Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
- we may amend the Services and Price by providing you with written notice. If you do not agree to this, you may terminate the Agreement;
- you may be required to pay our costs if you fail to comply with certain terms in the Agreement (e.g. you do not provide us with access to your Premises or we incur costs as a result of termination of this Agreement) (including legal fees, debt collector fees and mercantile agent fees);
- you may be required to pay our costs arising from your (or your Personnel’s) acts or omissions, your (or your Personnel’s) breach of this Agreement or any Law; and your provision of any documentation or information to us;
- your failure to pay the Price in accordance with the Payment Terms may result in us charging you interest, or suspending the provision of the Services until we receive payment;
- we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise);
- in the event of a failure in the Hosting and Back-Up Services, we will use commercially reasonable endeavours to restore data that is affected by the failure. However, there may be situations in which data cannot be recovered or data retained may be out of date;
- subject to your Consumer Law Rights, you have not relied on any representations or warranties made by us prior to entering this Agreement that are not included in this Agreement;
- subject to your Consumer Law Rights, we will not refund any amounts paid by you;
- subject to your Consumer Law Rights, we exclude our Liability for your (or your Personnel’s) acts or omissions, any use of the Services by a person other than you, any works, services, goods materials or items which do not form part of the Services set out in this Agreement, your Computing Environment, any Third Party Inputs, events beyond our reasonable control (including Force Majeure Events), and Consequential Loss and for a delay in the provision of the Services;
- subject to your Consumer Law Rights, our Liability for the provision of the Services will be limited to, at our discretion the resupply of the Services or the repayment of the Price paid by you to us for the relevant Service;
1.2 This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights
2.1 You have requested the Services set out in the Quote, and you accept this Agreement by the earlier of:
- signing and returning the Quote to us (including electronically); or
- accepting the Quote online or sending an email accepting the Quote (expressly or impliedly);
- instructing us (whether orally or in writing) to proceed with the Services; or
- making part or full payment of the Price (including any deposit).
2.2 This Agreement will operate for the Term.
3.1 In consideration of your payment of the Price, we agree to provide you the Services in accordance with this Agreement, whether ourselves or through our Personnel.
3.2 We will not be responsible for any Services unless expressly set out in the inclusions in the Quote.
3.3 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only. We agree to use reasonable endeavours to provide the Services within a reasonable time.
3.4 All variations to this Agreement must be agreed in writing between the Parties and will be priced in accordance with our Quote, any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, or would result in us suffering or incurring any additional cost or delay, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 3.4.
4.1 During the Term, you may issue requests for further Services (Order Request) by notifying us in writing, over the phone, online or by any other process which we may advise you from time to time.
4.2 We may, at our discretion, accept or reject an Order Request. If we accept the Order Request, we will issue an Order, and the Order will be binding on the Parties in accordance with the terms of the Agreement and the Order.
4.3 To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of the Order will prevail.
4.4 Unless otherwise agreed between the Parties, if this Agreement is terminated, then any current Order will also terminate on the date of termination.
5.1 You may request a variation or change to the Services, including the timing for the supply of the Services (Variation), by providing written notice (including by email) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by the any Variation Request accepted in writing.
5.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 5.1.
6. HOSTING AND BACK-UP SERVICES
6.1 In consideration of your payment of the Hosting and Back-up Fee, we will supply you with the Hosting and Back-up Services.
6.2 The hosting or back up of anything not specifically listed in the Quote is out of scope and will be considered a variation under clause 5.
6.3 We reserve the right to perform maintenance and upgrades at any time and from time to time.
6.4 We will use commercially reasonable endeavours to:
- provide you with reasonable notice of maintenance and upgrades relevant to the Hosting and Backup Services by sending you an email about any scheduled maintenance or upgrades that will result in an outage of more than 30 minutes; or
- notify you as soon as practicable after becoming aware of the need for unscheduled maintenance relevant to the Hosting and Backup Services that will result in an outage of more than 30 minutes.
6.5 In the event of a failure in the Hosting and Backup Services, we will use commercially reasonable endeavours to restore data that is affected. However, you acknowledge that there may be situations in which data cannot be recovered or data retained may be out of date. To the maximum extent permitted by law, you agree that this clause 6.5 sets out our entire obligation with respect to disaster recovery and loss of data in connection with the Hosting and Backup Services.
7. WEBSITE SERVICES
7.1 If applicable, in consideration of your payment of the Website Services Fee, we agree to provide you the Website Services.
7.2 In using the Website Services, you understand and agree that:
- Following the delivery of each Website Service in accordance with any milestone stages provided by us (each, a Milestone), you must, within 7 days of completion of each Milestone:
- notify us of your acceptance of the Website Services; or
- notify us of the rejection of the Website Services.
- If you do not provide your acceptance or rejection of the Website Services within 7 days of the completion of the Milestone, you will be deemed to have accepted the Website Services, or we will cease providing the Website Services until such notification is received.
7.3 You must provide us with your written approval at the completion of the Website Services, prior to us making your website go live.
7.4 You understand that the Website Services may interact with, or be reliant on, certain Third Party Inputs, including web hosting services, and we do not make any warranty or representation in respect of any Third Party Inputs.
8. SEO SERVICES
8.1 If applicable, in consideration of your payment of the Search Engine Optimisation Services Fee, we agree to provide you the Search Engine Optimisation Service.
8.2 In using the Search Engine Optimisation Services, you understand and agree that:
- if you make changes to your website during the period where we are providing the Search Engine Optimisation Services to you, this may affect the results of the services performed by us;
- if your website for which we are providing the Search Engine Optimisation Services is not a website previously built by us, you will provide us with access to the website and ensure that the website is of a quality sufficient to allow the Search Engine Optimisation Services to be performed; and
- if we find any major fault in the website resulting from previous search engine optimisation performed by you or a third party, we will cease provision of the Search Engine Optimisation Services until such faults have been remedied.
9. ADVERTISING SERVICES
9.1 If applicable, in consideration of your payment of the Advertising Services Fee, we agree to provide you the Advertising Services.
9.2 In using the Advertising Services, you understand and agree that:
- you appoint us as your agent in providing the Advertising Services;
- where applicable, you agree to and will comply with the Google Third Party Partner Policy and AdWords Terms and Conditions, available at https://clickclick.media/terms-and-conditions/;
- where applicable, you will be liable for additional advertising fees charged by a third party advertiser such as Google or Facebook (Third Party Advertiser), and you must pay the charges directly to the Third Party Advertiser;
- we will only monitor the performance of the Advertising Services to the extent as set out in the Quote;
- we are not obligated to provide you with your login details or transfer the management of any relevant online accounts to you until the Price is paid in full; and
- you are solely responsible for any third party account management fees associated with your pay per click advertising account.
10. PRICE AND PAYMENT
10.1 In consideration for us providing the Services, you agree to pay us the Price, the Hosting and Back-Up Services Fee and any other amount payable to us under this Agreement (including any Expenses), in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
10.2 Unless otherwise agreed between the Parties, any Deposit or Set-Up Fee in the Quote must be paid before we commence the performance of the Services.
10.3 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
- charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms; and
- after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees); and
- After a period of 45 days, your account with us will be cancelled and you will not be entitled to any form of refund for any pro-rata fees that you have paid for the services.
10.4 If and when applicable, GST payable on any amount will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the relevant amount.
11. YOUR SYSTEM
11.1 Prior to us supplying the Services, you agree to:
- make a backup of any relevant data in your Systems which is to be the subject of, or to be used in the performance of, the Services;
- make a written note or make a backup of any configuration settings or information stored in your Systems;
- make a plan to restore your Systems in the event that they are corrupted or lost;
- notify any relevant parties of any planned outages or downtime necessary for the performance of the Implementation Services;
- provide us with all information that is within your knowledge in relation to the System which would be reasonably necessary for us to know in order to perform the Implementation Services; and
- where the equipment in your System is a computer, download and install any available:
- security and protection updates for the operating system you use; and
- updates to virus checking and other computer protection software you use.
11.2 You acknowledge and agree that not undertaking your obligations under clause 11.1 may impact on the results or the performance of the Services, and we will not be liable to you for any Liability to the extent caused or contributed to by your failure to comply with clause 11.1.
12. OBLIGATIONS AND WARRANTIES
12.1 Each Party represents, warrants and agrees that:
- it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
- this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
- if applicable, it holds a valid ABN which has been advised to the other Party; and
- if applicable, it is registered for GST purposes.
12.2 You represent, warrant and agree:
- to comply with this Agreement and all applicable Laws;
- you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
- that you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary and within any reasonable timeframe specified to enable us to provide the Services, including providing access to your social media accounts (such as your Google account);
- that the information and documentation you provide to us is true, correct and complete;
- that you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to the Premises (including any facilities at the Premises), to enable us to provide the Services, including at the dates and times that we may reasonably request; and
- you will not infringe any third party rights in working with us and receiving the Services.
13.1 Unless otherwise agreed between the Parties, either Party may terminate this Agreement, by providing the other Party with 30 Days written notice.
13.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
- the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
- the Defaulting Party is unable to pay its debts as they fall due.
13.3 Upon termination or expiry of this Agreement:
- we will immediately cease providing the Services;
- unless agreed between the Parties, cease providing the Hosting and Back-Up Services;
- without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
- you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
- by you pursuant to clause 13.1 or by us pursuant to clause 13.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees); and
- you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 16.
13.4 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
13.5 This clause 13 will survive the termination or expiry of this Agreement
14. YOUR CONSUMER LAW RIGHTS
14.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in this Agreement excludes your Consumer Law Rights as a consumer under the ACL.
14.2 You agree that our Liability for the Services is governed solely by the ACL and this Agreement.
14.3 Subject to your Consumer Law Rights, we exclude all implied warranties, representations and guarantees of any kind (whether statutory or otherwise), unless expressly stipulated in this Agreement.
14.4 Subject to your Consumer Law Rights, all amounts paid by you for the Services are non-refundable.
14.5 This clause 14 will survive the termination or expiry of this Agreement.
15. LIMITATION OF LIABILITY
15.1 Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by law, and subject to your Consumer Law Rights:
- we will not be liable for:
- any event or circumstance beyond our reasonable control;
- any use or application of the Services by a person other than you, or other than as reasonably contemplated by this Agreement;
- any work, services, goods, materials or items which do not form part of the Services, or which have not been provided by us;
- any Third Party Inputs;
- any misuse of the Services;
- any injury or loss to any person; or
- breach of this Agreement or any Law by you (or your Personnel);
- neither Party will be liable for any Consequential Loss;
- a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
- our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
15.2 This clause 15 will survive the termination or expiry of this Agreement.
16. INTELLECTUAL PROPERTY
16.1 As between the Parties, each Party retains all Intellectual Property Rights in its Intellectual Property developed prior to or independently of this Agreement. Nothing in this Agreement constitutes an assignment or transfer of such rights.
16.2 As between the Parties, ownership of all Intellectual Property Rights in any Intellectual Property developed, adapted, modified or created in connection with this Agreement or the performance of the Services will at all times vest, or remain vested, in us. After payment in full for the Services, all such Intellectual Property Rights will vest in you.
16.3 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property solely for the performance of our obligations under this Agreement.
16.4 In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
16.5 This clause 16 will survive the termination or expiry of this Agreement.
17.1 Subject to clause 17.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
Clause 17.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 17.1
17.3 This clause 17 will survive the termination or expiry of this Agreement.
18.1 Amendment: This Agreement may only be amended in writing and as agreed by the Parties.
18.2 Assignment: Subject to clause 15.3, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
18.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
18.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from this Agreement (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction, or will operate to prevent a Party from taking steps to recover any debt.
18.5 Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties, and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
18.6 Force majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
18.7 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
18.8 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
18.9 Joint and several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under this Agreement.
18.10 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
18.11 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate, subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
18.12 Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between the terms of the Agreement and the Quote, the Quote will prevail.
18.13 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
18.14 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
19. INTERPRETATION & DEFINITIONS
19.1 Words like including and for example are not words of limitation.
19.2 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:
means the advertising services as outline in the Quote.
means these terms and conditions, which includes the Quote, and any agreed Order issued under it and any documents attached to, or referred to in, each of them.
means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
means the deposit as set out in the Quote.
means any expenses and other disbursements, reasonably and directly incurred by us and approved in advance by you for the purpose of the supply of the Services.
Force Majeure Event
means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hosting and Back-Up Services
means the hosting and back-up services as outlined in the Quote.
means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights
means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach
means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
means an order placed by you, for the performance of the Services, in accordance with clause 4.
means the Price, method and timing of payment, as set out in the Quote.
means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
means pay per click advertising.
means the location where the Services are to be supplied, as set out in the Quote.
means the price set out in the Quote for the performance of the Services and includes the Hosting and Back-Up Fee as set out in the Quote and any Deposit.
means the quote (including any online quote) to which this Agreement is attached by reference.
means the SEO Services as outlined in the Quote.
means the services we agree to perform under this Agreement, including the Website Services, Search Engine Optimisation Services and/or the Advertising Services, as further particularised in the Quote.
means the set-up fee as set out in the Quote.
means any specifications for the Services, and, if applicable, as further particularised in the Quote.
means all hardware, software, networks and other IT systems used by a Party from time to time, including a
Third Party Inputs
means third parties or any goods and
services provided by third parties, including customers, end users, suppliers, transportation or logistics providers, third party software suppliers, or other subcontractors which the provision of the Services may be contingent on, or impacted by.
means your website, as agreed between the Parties, that is to be the subject of our provision of the Services.
means the Website Services as outlined in the Quote.