In the event of any inconsistency between these terms and conditions and the Key Agreement Details, the clauses of these terms and conditions will prevail to the extent of such inconsistency.
(a) This agreement commences on the Commencement Date specified in the Key Agreement Details and will continue for the initial period specified in the Key Agreement Details (minimum Term) and any Renewal Terms pursuant to clause 0.
(b) Upon expiration of the Initial Term, this agreement will automatically renew for successive 60 day periods (each a Renewal Term) unless either party provides notice that the agreement will not automatically renew with 60 days’ written notice prior to the expiration of the Initial Term or the then-current Renewal Term.
CLAUSE 0
0.1 Minimum Term: If the Services include search engine optimization (SEO) services, there will be a 12 month minimum term for those services (SEO Minimum Term).
0.2 Additional Services: Any additional services such as website design and development, social media marketing, pay-per-click (PPC) advertising, or other services outside the original scope will be charged at Apex Digital’s standard rates as applicable at the time (Additional Services).
0.3 Ownership: For any website building or development services, Apex Digital will retain full ownership of the website, related code, and any content provided by Apex Digital until the completion of the full term set out in the Key Agreement Details (Minimum Term) and until all outstanding Fees have been paid in full.
0.4 Access Restriction: The Client will not be granted administrative access, hosting access, or control of any websites or accounts related to the Services until completion of the Minimum Term and payment of all outstanding Fees.
(a) In consideration for the payment of the Fees, Apex Digital will provide the Client with the services set out in the Key Agreement Details (Services).
(b) Unless otherwise agreed, Apex Digital may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid the invoice in respect of such Services.
(a) The Client must pay a ‘change in scope fee’, in an amount reasonably determined by us (Change Fee), for changes to Services requested by the Client which alter the scope set out in the Key Agreement Details and requires us to perform additional work or incur additional costs (Changes).
(b) Apex Digital may in its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(c) Apex Digital will only be required to perform Changes, if:
(i) Apex Digital agrees in writing to perform the Changes;
(ii) the Client confirms in writing that they wish for Apex Digital to proceed with the Changes and the relevant Change Fee; and
(iii)the Client pays the Change Fee.
(d)This agreement will apply to any Services that are the subject of a Change without this agreement needing to be signed again.
If the Key Agreement Details state that the Services include search engine optimisation services (SEO Services):
(a) the client must provide Apex Digital access to its website and Google Ad accounts, allowing Apex Digital to sign in or be added as a user;
(b) Apex Digital makes no promise or guarantee regarding the effectiveness of any SEO Services. Apex Digital only endeavours to use its professional skills to deliver an incremental improvement to the Client’s website traffic; and
(c) the Client acknowledges and agrees that the effectiveness of the SEO Services may be affected by circumstances outside Apex Digital’s control, including:
(i) changes in the policies and/or ranking algorithms of search engines;
(ii) changes to the Client’s account occasioned by a party other than us; and
(iii) the platform that is used by us to perform the SEO Services changing its functionality,
and Apex Digital will not be liable for any loss or damage suffered by the Client arising from any such circumstances.
If the Key Agreement Details state that the Services include cost-per-click advertising services such as Google Adwords, (CPC Advertising) the Client acknowledges and agrees that:
(a) Apex Digital makes no promise or guarantee regarding the effectiveness of any CPC Advertising, including as to conversion rates, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results;
(b) the effectiveness of the CPC Advertising may be affected by circumstances outside Apex Digital’s control including:
(i) the Client’s account that is used by Apex Digital to perform the CPC Advertising Services being cancelled or disabled on a temporary or permanent basis;
(ii) the platform that is used by Apex Digital to perform the CPC Advertising Services changes its functionality; or
(iii) fluctuations in market responsiveness and need for the Client’s products or services,
and Apex Digital will not be liable for any loss or damage suffered by the Client arising from such circumstances.
If the Key Agreement Details state that the Services include web development services, including building or customising websites (Website Design) the following conditions will apply unless otherwise agreed between the parties in the Key Agreement Details:
(a) Apex Digital reserves the right to determine the choice of programming language(s) used in the Website Design;
(b) Apex Digital may add content to the Website Design. However, Apex Digital will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Website Design;
(c) If Apex Digital is required to purchase the website domain on the Client’s behalf, Apex Digital will not hand over access to that domain until the Client has made final payment for the domain to Apex Digital;
(d) Apex Digital will not provide any graphics for the Website Design, and if Apex Digital requires the Client to provide graphics, the Client must provide Apex Digital with graphic files in an editable, high resolution, vector digital format;
(e) Apex Digital only tests websites in desktop resolution in the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox;
(f) Apex Digital will not guarantee that any Website Design will be mobile responsive. If Apex Digital does specifically agree to provide mobile responsive Website Design, then it will test only on iOS Safari and Google Chrome in Android Emulator; and
(g) the client must at all times cooperate with Apex Digital, including by providing prompt and clear instructions in relation to the Website Design.
If the parties agree in writing to any timeframes for the Website Design Services, Apex Digital will use reasonable endeavours to meet those timeframes subject to the Client’s compliance with this clause Error! Reference source not found..
(a) If the Key Agreement Details state that the Services include social media marketing, Apex Digital will manage the Client’s social media accounts nominated in the Key Agreement Details provided that the Client provides Apex Digital with all relevant usernames and passwords.
(b) Unless otherwise specified in the Key Agreement Details, the social media marketing services will include:
(i) creating content, engagement, and ongoing management;
(ii) monitoring social media conversations and responding to the same; and
(iii) managing all social media communication with the Client.
If the Key Agreement Details state that the Services include services to host the Client’s website, application or other information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:
(a) (hosting location) The Client acknowledges that Apex Digital uses storage servers that may be located outside Australia.
(b) (service quality) While Apex Digital will use its best efforts to select an appropriate hosting provider, it does not guarantee that:
(i) the Hosting Services will be free from errors or defects; or
(ii) the Hosting Services will be accessible or available at all times;
(c) (backups & disaster recovery) Apex Digital will use its best efforts to create scheduled daily backups of Client Data stored by Apex Digital. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Apex Digital will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
(d) (troubleshooting) Apex Digital’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.
(a) The Client may request reasonable reports on website traffic and end user metrics demonstrating the outcomes of the Services.
(b) However, Apex Digital will not provide reports on the processes, tactics, approach or other commercially sensitive information used in implementing any particular strategy for the Services.
Apex Digital will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Apex Digital does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
The Client acknowledges and agrees that:
(a) all information provided as part of the Services is an opinion only, based on our experience and best practice;
(b) we do not guarantee any particular outcome, or any particular decision from any third party, on any issue, if the Client relies on the Services; and
(c) it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
(a) If the Services involve Apex Digital acquiring goods and services supplied by a third party on the Client’s behalf, the Client acknowledges that third party terms & conditions (Third Party Terms) may apply.
(b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing the Deliverables, and Apex Digital will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(a) The Client must provide Apex Digital with all documentation, information and assistance reasonably required by Apex Digital to perform the Services.
(b) The Client must provide feedback on all documents or other mock-ups provided to the Client for their approval within 5 days of receipt. If the Client delays in providing any feedback, they will be placed at the back of the queue leading to delays in the Services at no fault of Apex Digital.
(c) The Client warrants that all information, documentation and other Material it provides to Apex Digital for the purpose of receiving the Services, including company information, marketing information, financial records and commercial information, is complete, accurate, compliant with any applicable laws and industry regulations, and up-to-date.
(d) The Client releases Apex Digital from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by the Client being incomplete, inaccurate or out-of-date.
The Client agrees to provide Apex Digital with access to:
(a) the Client’s premises and Personnel, to the extent required to perform the Services;
(b) the Client’s CPC Advertising account (including login details and passwords);
(c) the Client’s website (but only where Apex Digital is providing Services that involve making updates or changes to the Client’s website); and
(d) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Apex Digital to perform the Services.
The Client agrees that it will not by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
If the Client requests in writing a quarterly review, the parties will arrange a meeting between representatives from each company to discuss the technical work performed by Apex Digital and any reports issued by Apex Digital. The quarterly review may, on further request of the Client, include a ranking report being provided by email.
(a)The Client acknowledges and agrees that it is responsible for insuring itself against its risks under and in connection with this agreement.
(b) The Client must ensure that it effects and maintains adequate insurance to cover the Client’s risks and liabilities under this agreement and any activities undertaken by the Client in connection with this agreement, including marketing campaigns, including as applicable to the particular activity, business insurance, professional indemnity insurance, errors and omissions insurance and public liability insurance.
The Client must provide accreditation to Apex Digital on its website. The Client must not, during the Term, remove the accreditation to Apex Digital or accredit any other marketing services provider on its website.
(a) The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in the Key Agreement Details.
(b) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth), any Fees paid in accordance with this agreement are non-refundable.
(c) If there is no Due Date set out in the Key Agreement Details in relation to a Fee, that Fee must be paid at the time set out in the relevant invoice issued by us. The Fees become due and payable in accordance with an invoice regardless of whether the Client has approved any particular concepts or designs scheduled for approval at that time.
(d) If an invoice issued by Apex Digital does not set out a Due Date, then payment will be due within 14 days from the date of that invoice.
If the Key Agreement Details state that the Fees are to be paid using direct debit (DD), the Client:
(a) authorises direct debit in line with the third party payment provider’s, as notified to the Client (Payment Provider), separate DD Authorisation Form and any DD agreement as applicable;
(b) agrees to enter into any DD agreement required by our Payment Provider;
(c) authorises us to charge your bank account or credit card in advance in line with any DD Authorisation Form and any DD agreement;
(d) must ensure that there are sufficient funds available in your account to allow our Payment Provider to debit the fees payable; and
(e) acknowledges and agrees that there may be additional payments required from the Payment Provider if you miss or fail to make any payment. These terms are separate and in addition to these Terms.
(a) The Fees charged by us do not include digital marketing ad spend amounts, or any other expenses set out in clause 0, and the Client will be responsible for paying these fees directly to the relevant platform or otherwise billed to the Client in accordance with clause 0.
(b) If requested by us, the Client must provide Apex Digital with its credit card, direct debit or other financial details for the purposes of making digital advertising payments on the Client’s behalf.
(c) The Client consents to our using of the Client’s credit card, direct debit or other financial details on its behalf to make payments for digital advertising services and any other related services reasonably necessary for Apex Digital to perform the Services.
If Apex Digital attempts to direct debit the Fees from the Client’s Nominated Account specified in the Key Agreement Details and the payment is unsuccessful:
(a) Apex Digital will make a further attempt to direct debit the Client’s Nominated Account;
(b) upon two unsuccessful attempts to direct debit the Client’s Nominated Account, the client will be notified, and the Services will be suspended until all outstanding Fees have been paid by the Client;
(c) the Client must pay Apex Digital interest at the rate of 10% per month on the amount due, calculated on a daily basis;
(d) Apex Digital may seek to recover the amount due by referring the matter to debt collectors; and
(e)you must reimburse Apex Digital for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under this agreement.
Unless otherwise agreed:
(a) the Client will bear all computer storage, media and related expenses reasonably incurred by Apex Digital in connection with the Key Agreement Details; and
(b) any third-party costs incurred by Apex Digital in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Agreement Details.
Unless otherwise indicated, amounts stated in the Key Agreement Details do not include GST. In relation to any GST payable for a taxable supply by Apex Digital, the Client must pay the GST subject to Apex Digital providing a tax invoice.
Apex Digital reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
Unless otherwise agreed:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by Apex Digital, bear an accreditation and/or a copyright notice including Apex Digital’s name in the form, size and location as directed by Apex Digital; and
(b) Apex Digital retains the right to describe the Services and reproduce, publish and display the Deliverables in Apex Digital’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
Except as contemplated by this agreement or the Key Agreement Details, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
(a) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(b) information required to be disclosed by any law; or
(c) information disclosed by Apex Digital to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
For the purposes of this clause 0, “Confidential Information” means information of or provided by a party to the other party under or in connection with this agreement or the Key Agreement Details that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
For the duration of any Key Agreement Details, and for 1 year thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Apex Digital with which the Client had contact during the course of the Key Agreement Details.
The Client grants to Apex Digital (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any Services.
The Client:
(a) warrants that Apex Digital’s use of Client Content as contemplated by the Key Agreement Details will not infringe any third-party Intellectual Property Rights; and
(b) will indemnify Apex Digital from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(a) Unless otherwise expressly agreed in the Key Agreement Details, the Client will not under these terms or any Key Agreement Details acquire Intellectual Property Rights in any Apex Digital IP. Any Developed IP will be solely and exclusively owned by Apex Digital.
(b) Apex Digital grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Apex Digital IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables.
For the purposes of this clause 0:
(a) “Client Content” means any documents or materials supplied by the Client to Apex Digital under or in connection with this agreement or the Key Agreement Details, including any Intellectual Property Rights attaching to those materials.
(b) “Developed IP” means any materials produced by Apex Digital in the course of providing Services or Deliverables including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
(c) “Apex Digital IP” means all materials owned or licensed by Apex Digital that is not Developed IP and any Intellectual Property Rights attaching to those materials.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this agreement, whether registered or unregistered.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
(a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of Apex Digital to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total Fees paid to Apex Digital by the Client in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) The Client agrees at all times to indemnify and hold harmless Apex Digital and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
(i) breach of any term of this agreement;
(ii) breach of any third party intellectual property rights; or
(iii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) Apex Digital will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Apex Digital, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
(a) Apex Digital may terminate this agreement at any time after the minimum term by providing 30 days’ written notice to the Client. The date of termination will be the date that is 30 days from the date of the notice.
(b) After the Initial Term, the Client may terminate this agreement by providing 60 days’ written notice to Apex Digital. The date of termination will be the date that is 60 days from the date of the notice.
(c) Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(i) is in breach of this agreement and either:
A.fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
B that breach is not capable of remedy; or
(ii) ceases, suspends or threatens to cease or suspend to conduct its business.
The date of termination will be the date that notice is given.
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
Upon expiration or termination of this agreement:
(a) Apex Digital will refund any amounts paid by the Client for Services not provided as at the date of termination and the Client will pay any outstanding Fees for Services provided (or that would have been provided but for the termination notice) up to the date of termination;
(b) the Client must pay all amounts owed for Services already provided as at the date of termination;
(c) each party must return all property of the other party to that other party; and
(d) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
(a) The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
(b) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
(c) The terms of the Guidelines are hereby deemed incorporated into this agreement.
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 0 the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of the Affected Party;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
This agreement is governed by the law applying in Victoria, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
This agreement may only be amended by a document signed by each party.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(h) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(i) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
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