1. Definitions
In these Terms the following expressions shall have the respective meanings assigned to them:
“Agreement” means these Terms together with a current or pre-existing digital marketing services proposal issued by THSA (“Proposal”) to a Client. In the event of any conflict between the Terms of this Agreement and any Proposal, the terms of the Proposal shall prevail.
“Client” means any party which has accepted a Proposal and thereby enters into an Agreement with THSA.
“Client Trial Period” means any period referred to in a Proposal in which free and / or discounted Services are offered to a Client.
“Commencement Date” means the date of commencement of the Services as set out in the Proposal or, if such date is not stated, the date when the Services are first provided.
“Fees” means the amounts payable by the Client for the Services during the Initial Term as detailed in the Proposal and subject to agreed variations thereafter if the Term is extended, subject to the terms of any Client Trial Period.
“Initial Term” (unless otherwise stated in the Proposal) means 12 months from the later of the Commencement Date or the end of any Client Trial Period.
“Services” means the digital marketing and / or sales lead generation services to be provided by THSA to the Client as specified in the Proposal and such other services that the Client subsequently agrees that THSA will provide as an extension to the services detailed in the Proposal.
“Term” means the Initial Term and any extensions of the Initial Term.
“Website” means a website that is owned and / or operated by THSA that is used to deliver the Services.
2. Services, Term & Fees
THSA has proposed Services to the Client in its Proposal and the Client has agreed that THSA may commence working on delivering those Services for the Initial Term.
The Client acknowledges that the services offered by THSA are non-exclusive in nature and that THSA may potentially provide services to other clients that may be deemed by the client to be competitors or substitutes for some of the Client’s own goods and / or services. In such instances THSA will manage any conflicts of interests with appropriate care and diligence and agrees to terminate this Agreement without penalty to the Client if such conflicts cannot be reasonably prevented or mitigated.
At the expiry of the Initial Term the Services will be automatically extended for an unlimited number of further terms of 3 months each, unless terminated in writing by either party before the commencement of each further term.
Variations to the Fees after the Initial Term must be notified by THSA to the Client in writing prior to the commencement of a further term but are not required to be specifically accepted by the Client. For the avoidance of doubt, if the Term is automatically extended the Fees payable for the Services will be in accordance with the Fees notified by THSA to the Client in advance of that further term.
Where the Fees are calculated based on sales leads or other volumes the Client accepts THSA’s calculations of those volumes based on the relevant data and digital records.
3. Payments for Services
All Services will be paid for by charging a valid credit or debit card number provided before Commencement by the Client to THSA and stored in a secure online payments gateway. THSA reserves the right to pass on merchant fees as a recoverable surcharge, in accordance with its policies from time to time.
If a Client’s payment has been declined by a credit or debit card provider the Services may be suspended and alternative forms of payment may be required by THSA. Suspensions due to non-payment will be notified by THSA to the Client in writing. If the Services are suspended for a period of more than 1 month this Agreement may be terminated without further notice by THSA.
Where Fees are proposed on a retainer basis THSA reserves the right to charge Fees in advance of providing Services and carry forward the value of any Services not provided to a future period within the Term.
At the expiry of the Term THSA is not required to refund any payments already made for Services that have not yet been delivered.
4. Client Requirements for the Services
The Client will provide THSA with all data, information and access to its digital and business assets and resources that may be reasonably required by THSA for it to provide the Services and otherwise comply with its obligations under this Agreement, on a timely basis.
The Client must ensure that any third party systems used by the Client that THSA is required to link to or work with have the capability and functionality to enable THSA to provide the Services. THSA is not responsible or liable for any delay caused or contributed to by any errors or compatibility issues with third party systems and the Client acknowledges that THSA may charge extra fees for additional work required to integrate the Services with such systems.
5. Third Parties Required to Provide Services
THSA may be required to liaise or contract directly with third parties to deliver the Services. In such cases, THSA shall not be liable to the Client for any act or omission by a relevant third party, if such act or omission results in THSA breaching its obligations under this Agreement, unless such act or omission is directly caused by its own reckless acts or omissions. Furthermore, the Client appoints THSA to act as its agent where it is necessary and convenient for THSA to liaise or contract with third parties to efficiently provide the Services.
6. No Liability for External Factors
The Client accepts that digital marketing and sales lead generation services are dependent on numerous external factors, including the behaviour of competitors and the internal workings of search engines, both of which are beyond the reasonable control of THSA. The Client also accepts that its other online activities (including but not limited to digital advertising and marketing campaigns not included in the Services and engaging with online customer reviews) may also be detrimental to the success of the Services. The Client agrees to refrain from activities that are not likely to complement or enhance the successful provision of the Services, and to report any such activities to THSA at its earliest reasonable opportunity.
THSA accepts no responsibility for the effects of classification and / or content policies of Google or other search engine operators that may have a detrimental effect on the Services, whether now or in the future. The Client accepts that the Website may be excluded or banned from search engine results or advertising systems at any time. Client agrees not to hold THSA responsible for any liability for acts or omissions by Google or other search engine operators that may affect the Services or the value of the Fees.
Where applicable to the Services, THSA does not guarantee position, consistent positioning, or specific placement for any particular keyword, phrase or search term. The Client acknowledges that THSA’s past performance (when providing services to the Client or its other clients) cannot guarantee the future results of the Services that the Client may experience.
The Client acknowledges that the Website is externally hosted and may be accessed by potential customers of the Client in varying conditions and circumstances. THSA cannot guarantee the availability, accessibility, functionality, speed, performance or service experience of the Website where such matters are beyond its control.
The Client acknowledges that the internet is inherently insecure and that THSA cannot guarantee that any website or service dependent on the internet will be available or secure from hackers or unauthorised intruders at all times. THSA will not be liable for any security breach, including any loss of data, and the Client is solely responsible and liable for any losses suffered in connection with any such security breach.
7. Website, Client Content & Intellectual Property
The Website (or rights to use the Website) will remain the property of THSA at all times and nothing in this Agreement creates any Clients ownership or usage rights in relation to the Website.
The Client accepts full responsibility for all detail contained in content provided to or otherwise used by THSA for the Services and warrants that it will use reasonable care to ensure that all facts and statements are true and will not infringe upon any consumer rights, copyright, right of privacy, proprietary right, right of publicity or any other right of a third party, including moral rights. The Client acknowledges that THSA May be required to adapt content provided by the Client to provide the Services and the Client grants THSA an irrevocable, royalty free license to THSA to do so.
The Client acknowledges that THSA may be required to suspend the Services or even terminate this Agreement with cause if the Client breaches these warranties.
The Client and THSA will each retain ownership of their pre-existing intellectual property. The Client grants an irrevocable, royalty free license to THSA for it to make use of knowledge gained through providing the Services for the benefit of its other clients, where such knowledge may be intellectual property created through providing the Services, subject to the ongoing protection of the Client’s identity and privacy rights beyond the Term. For the purposes of this clause, “benefit” includes the promotion of THSA’s services to potential new clients.
8. Deceptive & Misleading Conduct and Infringements by the Client
The Client hereby guarantees that there is nothing in any content provided to or relied on by THSA, or in any material to which the Website links or refers, that is deceptive and misleading or infringes any personal or proprietary right of any third party, is harmful, or violates any law or governmental regulation.
The Client acknowledges that THSA may be required to suspend the Services or even terminate this Agreement with cause if the Client breaches these guarantees.
The Client agrees to indemnify THSA, its employees, directors and permitted assigns against all liabilities, losses, damages and expenses of any nature, including legal or professional fees, arising from a breach of this guarantee.
9. Termination for Cause
Either party may terminate this Agreement for cause, where the matters giving rise to that cause have not been (or cannot be) reasonably rectified by the other party, by giving 1 month’s written notice to the other party.
Where written notice of termination for cause has been given the parties may agree to an immediate or earlier termination provided that THSA still receives payment for any Services that are not required to be provided because of the immediate or earlier termination.
10. Force Majeure
The Client and THSA hereby agree that neither party is liable for any failure to fulfil their obligations under this Agreement for reasons beyond their control including but not limited to the availability or cooperation of personnel required to support the Services, changes in search engine algorithms or inclusion guidelines, the arrival of new competitor sites, Acts of God, telecommunication problems, third party software or hardware failure, third party interference, Government actions, emergency on a major scale or any social disturbance of extreme nature such as a relevant industrial strike, riot, terrorism, natural disaster, pandemic and war, or any sufficiently material act or omission by any third party.
11. Confidentiality
Save as provided in this Agreement each party shall keep in strict confidence all technical, financial or commercial know-how, specifications, inventions, processes, trade secrets, processes, initiatives or other information which are of a confidential nature and have been disclosed by one party to the other.
12. Severability
If any provision of these Terms is held to be unenforceable or invalid, for any reason, then that provision is deemed to be modified to the extent required to remedy the unenforceability or invalidity or, if it is not possible to remedy the unenforceability or invalidity, that provision is to be severed from these Terms and the remaining Terms will otherwise remain in full force.
13. Disputes and Jurisdiction
In the event of a dispute the parties will act in good faith to resolve the dispute through timely negotiation, independent mediation and independent arbitration (in that order) before commencing any legal proceedings.
This Agreement shall be governed by the laws of the State of New South Wales, Australia. The parties submit all disputes arising between them to the courts in that state and any court competent to hear appeals from those courts of first instance.
14. Notices
Notices required under this Agreement may be communicated by e-mail by any officer of the parties, who will be deemed to be authorised to represent that party, and will be deemed to be received at 6pm AEST on the day of transmission provided that the sender does not receive notice of any transmission failure.
15. Relationship
This Agreement is between independently contracting parties and does not create any other legal relationship between them, other than one of agency where THSA may be directly required to act as the agent of the Client in order to provide Services.
16. Execution
The Agreement will be executed when a Proposal is accepted in writing by a Client that refers to these Terms and is not required to be executed under signature or in tangible form.
17 Entire Contract
These Terms and the Proposal form the entire Agreement between the parties and supersedes all previous discussions, proposals and negotiations between the parties.
The Client acknowledges that THSA may vary these Terms for standard operational purposes with future effect however such variations will not detract from the Client’s pre-existing rights in accordance with this Agreement unless agreed by the Client.