1.1. “Digital Union” shall mean Digital Union Pty. Ltd. its successors and assigns or any person acting on behalf of and with the authority of Digital Union Pty. Ltd.
1.2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Digital Union to the Client.
1.3. “Guarantor” means that the person (or persons) who agree to be liable for the debt of the Client on a principal debtor basis.
1.4. “Services” shall mean all Services provided by Digital Union to the Client, including any advise or recommendation (and shall include and incidental supply of goods), as described on the invoices, quotation, authorisation or any other forms as provided by Digital union to the Client.
1.5. “Price” shall mean the Price payable for the Services as agreed between Digital Union and the Client in accordance with clause4 of this contract.
2 . THE COMMONWEALTH TRADEPRACTICES ACT 1974 (“TPA”) AND FAIR TRADING ACTS (“FTA”)
2.1. Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1. Any instructions received by Digital Union from the Client for the provision of Services and/or the Client’s acceptance of Services provided by Digital Union shall constitute acceptance of the terms and conditions contained herein.
3.2. Where more than one Client has entered into this Agreement,the Clients shall be jointly and severally liable for all payments of the Price.
3.3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Digital Union.
3.4. The client shall give Digital Union not less than fourteen (14)days prior written notice of any proposed change of ownership of the Client or any change in the Client’s details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Digital Union as a result of the Client’s failure to comply with this clause.
3.5. Services are provided by Digital Union only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms and the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6. Each individual executing this agreement represents and warrants that they have been fully empowered to execute this agreement by the Client.
4. PRICE AND PAYMENT
4.1. At Digital Union’s sole discretion the Price shall be either: as indication invoices provided by Digital Union to the Client in respect of Services provided; or Digital Union’s quoted Price(subject to clause 4.2) which shall be binding upon Digital Union provided that the Client shall accept Digital Union’s quotation in writing within thirty (30) days.
4.2. Digital Union reserves the right to change the Price in the event of a variation to Digital Union’s quotation.
4.3. At Digital Union’s sole discretion, a non- refundable deposit maybe required.
4.4. Digital Union may submit detailed progress payment claims in accordance with the specified payment schedule.
4.5. At Digital Union’s sole discretion, payment shall be due on completion of the Services.
4.6. Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated on then payment shall be due within seven (7) days following the date of the invoice.
4.7. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other methods as agreed to between the Client and Digital Union.
4.8. GST and other taxes and duties that may be applicable shall be added to the price except when they are expressly included in the Price.
4.9. Receipt by Digital Union of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognised and until then Digital Union’s ownership rights in respect of the Agreement shall continue.
5. ADDITIONAL COSTS
5.1. Travel expenses and associated costs to Digital Union in providing the Services to the Client shall be in addition to thePrice and will be charged net on a separate invoice.
5.2. The Price, unless specified otherwise, does not make provision for third party costs (including, but not limited to, printing and photography). If required, these costs will be invoiced separately, and shall include a third party supervision fee if Digital Union is requested to supervise the third party.
6. PROVISION OF THE SERVICES
6.1. The failure of Digital Union to provide the Services shall not entitle either party to treat this contract as repudiated.
6.2. Digital Union shall not be liable for any loss or damage whatsoever due to failure by Digital Union to provide the Services (or any part of them) promptly or at all, where due to circumstances beyond the control of Digital Union.
7.1. Unless otherwise agreed, the client shall bear the cost of fonts,or colour proofs, or artwork, specifically bought at it’s request for Services.
7.2. All web and print materials, radio and TV scripts, and any other items the subject of the Services, are required to be‘signed off’ by fax or email; Digital Union will not accept verbal amendments.
7.3. Whilst every care is taken by Digital Union to carry out the instructions of the Client, it is the Client’s responsibility to undertake a proof reading prior to ‘sign off’. Digital Union shall be under no liability whatever for any errors or inaccurate information not corrected by the Client in the proof reading.Should the Client’s alternations require additional proofs this shall be invoiced as an extra cost.
7.4. Whilst Digital Union will advise the Client on the quality of the Client-supplied images, Digital Union shall not be held responsible for poor reproduction resulting from the poor quality of images supplied.
8. ERRORS OR OMISSIONS
8.1. The client shall within thirty (30) days (time being of the essence)of completion of the Services, notify Digital Union of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The client shall afford Digital Union an opportunity to review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions the Services shall be presumed to be free from any error or omission. For defective Services, which Digital Union has agreed in writing that the Client is entitled to reject, Digital Union’s liability is limited to either (at Digital Union’s discretion) replacing the Services or remedying the Services.
9. INTELLECTUAL PROPERTY
9.1. The Client warrants that all designs or instructions to Digital Union will not cause Digital Union to infringe any patent,registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Digital Union against any action taken by a third party against Digital Union in respect of any such infringement.
9.2. The Client agrees that Digital Union may use any documents,designs, or drawings created by Digital Union for the purposes of advertising, marketing, or entry into any competitions or awards.
10. DEFAULT AND CONSEQUENCES OF DEFAULT
10.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, a rate of two and a half percent (2.5%) per calendar month (and at Digital Union’s sole discretion such interest shall compound monthly at such a rate) after as well as before judgement.
10.2. In the event that the Client’s payment is dishonored for any reason, the Client shall be liable for any dishonour fees incurred by Digital Union.
10.3. If the Client defaults in payment of any invoice when due, the Client shall indemnify Digital Union from and against all costs and disbursement incurred by Digital Union in pursuing the debt including legal costs on a solicitor and own client basis and Digital Union’s collection agency costs.
10.4. Without prejudice to any other remedies Digital Union may have, if at any time the Client is in breach of any obligation(including those relating to payment) Digital Union may suspend or terminate the provisions of Services to the Client and any of its other obligations under the terms and conditions. Digital Union will not be liable to the Client for any loss or damage the Client suffers because Digital Union has exercised its rights under this clause.
10.5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent(10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable
10.6. Without prejudice to Digital Union’s other remedies at law,Digital Union shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Digital Union shall, whether or not due for the payment, become immediately payable in the event that:
10.6.1. any monies payable to Digital Union becomes overdue, or in Digital Union’s opinion the client will be unable to meet its payments as they fall due; or
10.6.2. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
10.6.3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any assets of the Client.
11. SECURITY AND CHANGE
11.1. Despite anything to the contrary contained herein or any other rights which Digital Union may have howsoever;
11.1.1. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/ or the Guarantor agree to mortgage and/or charge all their joint and/or several interest in the said land, realty or any other asset to Digital Union or Digital Union’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Digital Union (or Digital Union’s nominee) shall be entitled to lodge where appropriate caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable here under have been met.
11.1.2. should Digital Union elect to proceed in any manner in accordance with this clause and/or its sub clauses, the Client and/or Guarantor shall indemnify Digital Union from and against all Digital Union’s costs and disbursements including legal costs on a solicitor and own client basis.
11.1.3. the Client and/or the Guarantor (if any) agree to irrevocable nominate constitute and appoint Digital Union or Digital Union’s nominee as the Clients’s and /or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of the clause 11.1
12.1. Digital Union may cancel any contract to which these terms and the conditions apply or cancel the provision of Services at any time before the Services are completed by giving written notice to the Client. On giving such notice Digital Union shall repay to the client and sums paid in respect of Price less any amounts owing for Services already provided. Digital Union shall not be liable for any loss or damage whatsoever arising from such cancelations.
12.2. In the event that the Client cancels the Services, then the Client shall be liable for any loss incurred by Digital Union (including, but not limited to, any amounts owing for the Services already provided and any loss of profits) up to the time of cancellation.
13. PRIVACY ACT 1988
13.1. The Client and/or Guarantor/s (herein referred to as the Client) agree for Digital Union to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Digital Union.
13.2. The Client agrees that Digital Union may exchange information about the Client with this credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
13.2.1. to assess an application by the Client; and/or
13.2.2. to notify other credit providers of a default by the Client; and/or
13.2.3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
13.2.4. to assess the creditworthiness of the Client.
13.2.5. The Client understands that the information exchanged can include anything about the Client’s creditworthiness. credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
13.3. The Client consent to Digital Union being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4. The Client agrees that the personal credit information provided may be used and retained by Digital Union for the following purposes (and for other purposes as shall be agreed between the Client and Digital Union or required by law from time to time):
13.4.1. the provision of Services; and/or
13.4.2. the marketing of Services by Digital Union, it’s agents or distributors; and/or
13.4.3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
13.4.4. processing of any payment instructions, direct debit facilities and or credit facilities requested by the Client; and/or
13.4.5. enabling the daily operation of Client’s account and/or the collection of amounts of outstanding in the Client’s account in relation to the Services.
13.5. Digital Union may give information about the Client to a credit reporting agency for the following purposes:
13.5.1. to obtain a consumer credit report about the Client;
13.5.2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
13.6. The information given to the credit reporting agency may include:
13.6.1. personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s license number;
13.6.2. details concerning the Client’s application for credit or commercial credit and the amount requested;
13.6.3. advice that Digital Union is a current credit provider to the Client;
13.6.4. advice of any overdue accounts, loan repayments and/or and outstanding monies owing which are overdue by more the sixty (60) days, and for which debt collection action has been started;
13.6.5. that the Client’s overdue accounts, loan repayments and/or and outstanding monies are no longer overdue in respect of any default that has been listed;
13.6.6. information that, in the opinion of Digital Union, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
13.6.7. advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
13.6.8. that credit provided to the Client by Digital Union has been paid or otherwise discharged.
14.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2. These terms and conditions and any contract to which they shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
14.3. Digital Union shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Digital Union of these terms and conditions.
14.4. In the event of any breach of the contract by Digital Union the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of Services.
14.5. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Digital Union nor to withhold payment of any invoice because part of that invoice is in dispute.
14.6. Digital Union may license of sub-contract all or any part of its rights and obligations without the Client’s consent.
14.7. The Client agrees that Digital Union may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Digital Union notifies the Client of such change.
14.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock- out, industrial action, fire, flood, storm or any other event beyond the reasonable control of with party.
14.9. The failure by Digital Union to enforce any provision of these terms and conditions shall no be treated as a waiver of that provision, nor shall it affect Digital Union’s right to subsequently enforce that provision.
15. ONLINE MARKETING TERMS AND CONDITIONS
15.1. Online Marketing from herein includes Search Engine Optimisation (SEO), Google AdWords Management (AdWords), LinkedIn Management, Facebook Management & Twitter Management.
15.2. The Client understands and agrees that the Client’s active and prompt response to the Online Marketing campaign approval is vital in the successful and timely delivery of the campaign, and to ensure media deadlines are met.
15.3. Unless otherwise stated, payment does not include GST.
15.4. Payment of Online Marketing Services will be due seven (7) days in advance from the beginning of each month’s Online Marketing services being provided.
15.5. Digital Union’s offering of Online Marketing services to the Client does not exclude Digital Union from offering our services to other organisations, whether in competition to yours or not, unless a separate (from this agreement) Exclusive Provider Contract has been entered into. Digital Union are under no obligation to reveal our client list to the public and/or to other clients.
15.6. The Client’s Marketing Strategy is kept strictly confidential to ensure the client’s competitive edge. We do however, unless the Client specifies otherwise, reserve the right to showcase or promote the creative production (e.g. banners, landing pages) to others as an example of the quality and diversity of our work.
15.7. Should work be suspended at the request of the Client, the work undertaken to the suspension date will be charged out at the standard hourly rate of $150.00 ex gst, per hour 15.8. The quotation provided in this proposal is for completion of the Online Marketing work outlined in the quote. Should the scope of the project change beyond this brief, the project will be re-quoted. Please note that we will always gain the Client’s permission first to proceed with the revised quotation before completing work.
15.9. Our abilities to optimise the Client’s website successfully from an Online Marketing perspective will be dependent on access to the programming of the website and ability to change/ optimise this freely. Limited access will limit the success of the optimisation activities. If the Client’s website developer is required to implement the Online Marketing strategies on our behalf, there may be additional costs associated with this which will need to be re- quoted and confirmed between the Client and their web developer.
15.10. If the Client has an internal or third party designer/developer making changes to your website it is essential that they keep us informed of any changes made to the website so as to avoid any overwriting of files or loss of work. In the event that a third party designer/developer overwrites work we have already done, there may be extra charges involved if we need to redo it.
15.11. SEO ranking results are affected by the activities of competitors in your industry. If your competitors increase their efforts in relation to online promotional activities then the ranking position of your website may decrease if efforts on behalf of your website are unchanged. We will always recommend a strategy to combat this.
15.12. No company can guarantee #1 ranking on the Client’s preferred keywords. Google has this to say on the subject: http://www. google.com/webmasters/SEO.html.
15.13. Due to the lag and processing time it takes to rank on Google, all SEO campaigns are set for a period of 12 months.
15.13.1. If you wish to end your SEO Campaign before the end of the contract, there will be a cancellation fee equivalent to 1 month’s fee, plus GST
15.13.2. If you wish to cancel your AdWords, LinkedIn, Facebook or Twitter Management, cancelation fees equal to a pro rata of 50% of the entire contract plus 1 month’s management fee will be payable + GST.
15.13.3. Search engines intermittently change or adjust the way in which they rank websites. On occasion these changes to ranking algorithms can upset your ranking performance, and in severe cases can see the Client’s website drop out of sight.
15.13.4. The SEO work that we perform can experience a lag of between weeks or even months, before signs of improvement show in the Client’s website performance. It is therefore all the more important that this service is approached with a dedicated and ongoing effort for a period of at least 3 months.
15.13.5. The security of your data is very important to us. We have put in place both hardware and software protection to ensure that nobody else has access to your account and the information it contains. Rest assured, we go to great lengths to keep all Client’s data safe and secure. For a detailed description of the data security policies, please see “How we keep your data secure and backed up” in the help section of your account.
15.14. Digital Union reserves the right to include its logo, branding and keyphrase in the footer of the Website with “do follow” linking back to www.digitalunion.com.au
15.15. The following guarantees will apply to the Client’s SEO campaign:
15.15. 1. 10% of key phrases to hit Page 1 within 3 months or payment ceases until this is achieved.
15.15.2. 30% of key phrases to hit Page 1 within 6 months or payment ceases until this is achieved.
15.15.3. 60% of key phrases to hit Page 1 within 12 months or payment ceases until this is achieved.
15.15.4. Page one guarantees include Google Local and Bing results.
15.15.5. Keywords only have to “hit” page one at any stage to honor the guarantees. They do not need to stay on page one for a select period of time.
15.16. Digital Union does not accept any liability for loss of rankings or revenue lost due to a suspended or terminated account.
16. MANAGED ONLINE SERVICES WEBSITE TERMS AND CONDITIONS
16.1. In the event the Client cancels a Managed Online Services Website service within 9 months, the client can pay an export fee of $999.00 + GST to receive the website files.
16.2. In the event the Client cancels a Managed Online Services Website service after months, the client can pay an export fee of $290.00 + GST to receive the website files.
16.3. Should the client decline to pay the export fee, all files and/or data associated with the Client will be permanently deleted 30 days after cancellation.
16.4. Digital Union does not accept any liability for any files and/or data lost during the export and transfer of files and/or data.
16.5. After 14 days of non-payment, a Clients account will be suspended until payment is received.
16.6. After 30 days of non-payment, a Clients account will be terminated.
16.7. Digital Union does not accept any liability for loss of rankings or revenue lost due to a suspended or terminated account.