The client agrees with The Trustee for The Dodhia-Shah Family Trust (ABN 14 112 924 682) trading as ‘Tradesignaus’ (“Tradesign”) that in consideration of Tradesign agreeing to provide the services to Client the following terms and conditions shall apply:
- Legal Agreement:
This agreement is a binding legal agreement between Client and Tradesign. The agreement constitutes the entire agreement between Client and Tradesign in relation to the Services. It does not include any terms and conditions of Client (including on any purchase order or other document submitted by Client) unless agreed to in writing by Tradesign. - Term of Agreement:
This agreement commences on the start date and is for an indefinite term unless a finish date is specified or the agreement is ended earlier in accordance with this agreement. - Services Tradesign will provide:
During the term of this agreement, Tradesign will:- provide the Services;
- where a maximum time per month for the provision of the Services, provide the Services for a period of time up to that maximum amount per month;
- commence provision of the Services on the start date;
- if a finish date is specified, ensure that the Services have been provided by the finish date;
- use its best endeavours to ensure the Services are provided in compliance with all relevant Australian legislation;
- provide the Services with care and skill;
- provide support in respect of the Services
- act in Client’s best interests but will not do anything which is unethical or unlawful;
- not provide any legal, financial or taxation advice;
- provide only the resources as required to be provided by Tradesign to deliver the Services;
- not be deemed to be in control of Client’s site or project at any time and shall have no responsibility for occupational health and safety (which is the responsibility of Client);
- provide the Services to Client alone and will not regard any other entity as its client in relation to the Services; and
- unless otherwise stated, shall determine at its discretion the personnel who will provide the Services.
- Additional Services:
At the request of Client, Tradesign may provide work and services additional to the Services including (a) any additional services; and (b) updates required as a result of changes to any relevant internet interface or services required in respect of matters set out in clause 5 (“Additional Services”). Client agrees and acknowledges that:- the provision of any Additional Services by Tradesign is subject always to this agreement;
- the fee for any Additional Services is not included within the fee for the Services and will be charged at Tradesign’s time based charge out rates; and
- by submitting a quick quote or other form of purchase order to Tradesign in respect of any Additional Services, Client agrees to pay for the Additional Services at the rates set out.
- Limitations on Services:
Client agrees and acknowledges that:- Tradesign has no control over business decisions made by Client based on the results of the Services and will not be liable for any costs or loss incurred by Client as a result of such business decisions.
- Tradesign cannot guarantee that the Services provided to Client will result in increased revenue for Client.
- Where the Client experiences business growth and/or expansion due to successful Search Engine Marketing, Tradesign make no guarantee that such growth will be sustained indefinitely, and will not be liable for any downturn in the Client’s business or operations.
- Tradesign has no control over the policies of internet search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s websites may be excluded from any directory at any time at the sole discretion of the search engines or directories. Tradesign will during the term of this agreement resubmit those websites that have been dropped from the search engine index;
- Tradesign has no control over if and when an internet search engine decides to suspend or remove a site for any reason. If this happens, Tradesign, at their own discretion will decide whether to attempt to reverse the search engines decision, at a cost to the client.
- Tradesign has no control or liability to clients website issues, including domain and hosting, performance or security and hacking issues and the search engine impact of these issues.
- due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Tradesign does not guarantee listing, positions or ranking on search engines for any webpage in relation to any particular keyword, phrase or search term;
- some search engines may take as long as 1 to 3 months, and in some cases longer, after submission or resubmission, as applicable, to list and rank websites;
- search engines may stop accepting submissions for an indefinite period of time;
- search engines may re-rank or exclude websites and webpages for no apparent or predictable reason. Often a webpage will reappear without any additional submissions. Should a webpage not reappear, Tradesign will, at the cost of Client, re-submit the site based on the current policies of the search engine in question;
- any modification of Client’s website by Client or any third party may impact on the listing or ranking of Client’s website. Any work or services required by Tradesign as a result of such modification shall be Additional Services; and
- Tradesign will not provide the following services under this agreement (Tradesign may at its discretion provide these services as Additional Services at the request of Client):
- (i) support outside Business Hours. In this agreement, Business Hours means 9am to 5pm Perth time on any day except a Saturday, Sunday or public holiday in Western Australia;
- (ii) support of or assisting the client in the use of operating systems, ancillary services or software or other platforms;
- (iii) managing authorised usernames and passwords;
- (iv) installing or managing Client’s security measures;
- (v) support where Service impairment results from installation, uninstallation, or use of other software applications;
- (vi) recovery of damage or data loss arising from hard drive or CPU failure, network failure, misuse, negligence, alteration, improper wiring, malware, viruses or failure to complete daily and weekly backups;
- (vii) support where Client has failed to implement a recommendation from Tradesign where in the reasonable opinion of Tradesign the recommendation should be implemented to ensure Tradesign can properly deliver the Services; or
- (viii) consulting services or accelerated development or advanced customisations of or enhancements to or new features of the Services.
- Paid Advertising:
Client agrees and acknowledges that, in respect of all pay-per-click advertising, cost-per-click advertising, Google Ads or Google Adwords advertising (“Paid Advertising”),:- The structure and content of any Paid Advertising account set up within a Tradesign account (including but not limited to Google Ads My Client Centre (“MCC”)) is the intellectual property (“IP”) of Tradesign. At no point will Tradesign give Client direct access to or provide copies of any MCC account. In the interests of transparency, Tradesign will provide Client with monthly reports to show the Paid Advertising account performance, along with information showing the amount spent on Paid Advertising clicks.
- Where Client is responsible for making payments directly to a Paid Advertising provider, including but not limited to Google, via automated credit card deductions, Client is solely responsible for ensuring that there are sufficient funds available on the credit card at all times, and that the credit card is within date. Tradesign hold no liability for a Paid Advertising provider suspending the Paid Advertising account as a result of not being able to retrieve the necessary funds.
- Due to factors beyond the control of Tradesign, Tradesign cannot guarantee that an advert placed through Paid Advertising will appear in high ranking positions on target search engines or partner sites, including but not limited to www.google.com, www.bing.com and www.yahoo.com.
- Paid Advertising may be based on an auction bidding system, and if so, Tradesign cannot guarantee the set prices of any advert clicked upon, and cost per clicks will vary based on factors beyond Tradesign’s control.
- Paid Advertising systems are website traffic generation tools only, and Tradesign make no guarantee that once a person visits the Client websites as a result of clicking on an advert that the visitor will make contact with Client for the purpose of engaging a service or buying a product from the client.
- Paid Advertising providers, including but not limited to Google, have very strict advertising guidelines and policies. If an advert is banned by a Paid Advertising provider due to policy violations which result from situations beyond the control of Tradesign, Tradesign will not be held liable, but will inform Client, and where possible work with Client to achieve a resolution.
- Where Tradesign may from time to time make suggestions for improvement of the Paid Advertising, Tradesign makes no guarantee that those suggestions will result in increased revenue for Client.
- Items to be provided by Client:
Client must:- provide to Tradesign all items and materials to be provided by Client and all information and materials relating to Client’s requirements with respect to the Services, including as regards scope and timing;
- obtain all approvals which are required for the lawful provision and use of the Services; and
- appoint a person to act as Client’s representative, which person shall be deemed to have authority to act on behalf of and bind Client in connection with this agreement.
- Client Authority, Exclusivity and Warranties
- Client authorises Tradesign to:
- (i) conduct all activities as may be required to perform the Services, including submitting websites to search engines and any other resources or relevant sites; and
- (ii) modify any of Client’s websites, including modifying the metadata of any website, for the purposes of providing the Services;
- (iii) use relevant keywords and phrases, including intellectual property belonging to Client, for the purpose of delivering the Services.
- Tradesign will work with Client to minimise any visual impact on Client’s websites caused by the activities set out in clause 8(a).
- During the term of this agreement, Client shall not permit any search engine optimisation provider to:
- (i) perform or deliver any service which is within the Services; or
- (ii) have access to any of Client’s websites.
- Client agrees that Tradesign will not be responsible for any of Client’s websites or search engine rankings if Client does not comply with clause 8(c).
- Subject to clause 8(c), if Client is required to give access to Client’s website to any third party Client must give prior notice to Tradesign.
- Client authorises Tradesign to:
- Client’s Responsibilities:
In order to ensure that Tradesign is able to properly deliver the Services, Client:- must ensure that its computers and communication systems are suitably configured, maintained, and operated so as to enable Tradesign to deliver the Services;
- must ensure that Client’s websites are active and accessible by Tradesign at all times;
- must notify Tradesign each time any modification to Client’s websites is made where that modification may affect the delivery of the Services by Tradesign;
- must cooperate with Tradesign in:
- (i) performing diagnostic procedures and communicating information in order to facilitate support provided by Tradesign;
- (ii) testing its websites to determine whether a given problem has been solved; and
- (iii) implementing workarounds intended to reduce the criticality of a given problem;
- must not install or use software that may, in the reasonable opinion of Tradesign, impair the proper delivery of the Services by Tradesign;
- agrees to inform all third parties with access to Client’s websites, including webmasters, that Tradesign has been engaged to provide the Services;
- warrants to Tradesign that Client’s websites are not hosted by free web hosting providers; and
- agrees that if Tradesign:
- (i) reasonably determines that Client’s web hosting provider may be part of a ‘bad neighbourhood’; or
- (ii) considers that for optimisation of the Services, Client should change its’ web hosting provider,
then Client will, at Tradesign’s request, change its web hosting provider.
- Support Provided
- Tradesign shall use commercially reasonable efforts to provide support but does not guarantee that any defects in the Client’s websites or Services will be fixed by Tradesign.
- Client acknowledges that Tradesign relies on third party interfaces and databases to deliver the Services and as a result Tradesign cannot guarantee uninterrupted access to and use of those third party internet interfaces and databases at all times.
- Fees:
Except as otherwise agreed in writing with Tradesign;- the fee for the Services will be as specified;
- where hourly rates are specified, Tradesign will record time spent on the Services in 30 minute blocks. Time spent for shorter periods of time is rounded up to the nearest 30 minute block;
- any fee estimate or quote provided by Tradesign will not limit the fees that Tradesign may charge unless Tradesign has agreed that a fixed fee will be charged; and
- Tradesign reserves the right to adjust its time based charge out rates on each 1 January and 1 July by an amount not less than the change in the Consumer Price Index (All Groups) Perth in the preceding six months.
- Tradesign reserves the right to change fixed price or recurring monthly charges at any time at Tradesign’s discretion. These price changes will only affect Services delivered after the date of the price change, and will not alter any recurring charged services in place at the time of the price change as agreed between Tradesign and Client.
- Disbursements:
- Client agrees that external disbursements are not included in Tradesign’s fees. Client agrees to reimburse reasonable business expenses incurred by Tradesign in the performance of the Services. Tradesign will use its best endeavours to seek authorisation from Client prior to incurring such expenses.
- Tradesign agrees to provide Client with tax invoices for all expenses Tradesign seeks to have reimbursed.
- Tax invoices:
- Tax invoices:
- (i) will be issued by Tradesign and must be paid on the terms as specified in the invoice;
- (ii) shall be deemed correct unless disputed in writing within 7 days of the date of the invoice; and
- (iii) must be paid in full notwithstanding any counterclaim or set-off Client may claim against Tradesign.
- Tradesign reserves the right to charge interest at 12% per annum, calculated daily, on tax invoices that are not paid in full and on time.
- Tax invoices:
- Insurances: Client agrees to procure and maintain at its expense appropriate injury, death and property loss insurance covering Tradesign’s personnel while at Client’s site.
- Confidentiality: Tradesign and Client each agree:
- not to disclose or use for an improper purpose any Confidential Information received or obtained from the other party; and
- that each party can disclose Confidential Information received by it if, and to the extent,:
- (i) required by law or required by a Court, stock exchange or regulatory or governmental body; or
- (ii) the information is disclosed on a confidential basis to professional advisers or bankers; or
- (iii) the information is disclosed to a director, officer, employee or agent of the party whose function requires them to have the information; or
- (iv) the information is in the public domain otherwise than through the fault of the disclosing party; or
- (v) the other party has agreed to the disclosure in writing,
provided a party intending to disclose information under any of paragraphs (i)–(iii) above consults with the other party first. If a party makes any disclosure under any paragraphs (i) and (ii) above it must inform the other party as soon as possible;
- “Confidential Information” means all trade secrets, know-how, financial, marketing, management, technical and other information which is confidential or of a sensitive nature, including information regarding business strategy and processes, but excludes information in the public domain.
- Client agrees that the identity of Client is not Confidential Information and that Tradesign may disclose to third parties that Tradesign has been engaged by Client.
- IP: Client agrees that, except as expressly stated:
- Tradesign owns all title, ownership, moral, proprietary and intellectual property rights (including copyright), registrable or not, in and to all deliverables, materials, documents, presentations, reports, software, data and analysis prepared or provided by Tradesign in connection with providing the Services including the source code and backend tactics used by Tradesign to optimise any websites (“Documents”);
- it will not publish or transmit outside of its organisation, nor make copies or reproductions of, any such Document unless approval in writing is given by Tradesign; and
- Tradesign may use such Documents for Tradesign’s technical development and marketing purposes.
- Licence to Client: For the term of this agreement Client is hereby granted a limited, revocable, non-transferable, non-sublicensable, royalty free licence to use Documents referred to in clause 16 for the sole purpose for which the Services were provided.
- Licence to Tradesign: Client hereby grants Tradesign a limited, revocable, non-transferable, non-sublicensable, royalty free licence for an indefinite term to use any of Client’s intellectual property which is used by Tradesign in providing the Services including banners, landing pages and Client’s logo, for business development and marketing purposes.
- Liability and Indemnity: Client agrees that except to the extent caused by a breach of this agreement by Tradesign or the negligence or wilful misconduct by Tradesign or its officers, employees or contractors, Tradesign and its officers, employees and contractors shall, to the maximum extent permitted by law, not be liable to Client or its officers and employees or contractors or any other entity for any Claims whatsoever:
- in relation to provision or non-provision of the Services or arising from any act or omission by Tradesign relating to the Services;
- arising from any act or omission of any third party, including the unavailability or performance of any search engine, relevant internet interface or database or the listing or ranking of any Client’s website;
- in relation to the matters set out in clauses 5(a) to 5(h) inclusive;
- in relation to the use by Client (or its officers, employees, agents or contractors) of any Documents;
- in the event that any transaction contemplated by Client does not proceed; or
- in relation to acts or omissions of Client or any third party,
and Client shall and hereby does indemnify and hold Tradesign and its officers, employees and contractors harmless from all such Claims. In this agreement “Claim” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation for legal costs or special, indirect, punitive or consequential damages, loss of profit or business opportunity or payment of liquidated sums).
- Warranties:
- Subject to clause 20(a) and to the maximum extent permitted by law the Services are provided without any warranties of any kind, either express or implied, including warranties of title, non-infringement of fitness for any purpose, accuracy, completeness or currentness. Any warranty which is implied by law or statute is excluded to the maximum extent permitted.
- Nothing in this Agreement may be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any Services pursuant to this agreement of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal law. The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to the supply of the Services by Tradesign to Client and cannot be contracted out of, they apply and override any inconsistent provisions in this agreement but only to the extent of the inconsistency.
- Non solicitation: Client agrees:
- not to, directly or indirectly, employ, solicit, engage or direct for purposes of employment or contracting services any of Tradesign’s staff or contractors during the term of this agreement and for a period of 12 months thereafter;
- that if it does not comply with paragraph (a) above, it will pay to Tradesign on demand a placement fee of:
- (i) in the case of a Tradesign employee, 100% of the employee’s total annual remuneration package from Tradesign (including superannuation); or
- (ii) in the case of a Tradesign contractor, 100% of the average of the following two amounts (A) the total payments made to or in respect of the contractor over the previous 12 months by Tradesign, and (B) the expected total payments to be made to or in respect of the contractor over the subsequent 12 months by Tradesign if the contractor had continued to work with Tradesign for those 12 months, in both cases as certified by Tradesign’s accountant and including all fees and oncosts; and
- that those amounts are a fair measure of the loss that Tradesign will suffer if Client does not comply with this clause.
- Delay/Force majeure: Tradesign and Client will each not be respectively liable for any delay or failure in the performance of obligations that arise out of causes beyond their control, including but not limited to electrical outages, internet, communications or computer failures, acts of god, fires, floods, epidemics, riots, strikes, embargoes, earthquakes, severe weather, war, governmental action, and acts or omissions of subcontractors or third parties.
- Suspension, Expiry and Termination:
- Tradesign may suspend the delivery of the Services during any period in which an amount owing by Client pursuant to this agreement is overdue.
- If either party is in breach of this agreement then the party alleging the breach may serve a default notice on the other party setting out the full particulars of the alleged breach and the acts required to rectify the breach. A party may terminate this agreement if:
- (i) it has issued a notice of default and the default alleged therein remains unrectified 14 days after service of the default notice; or
- (ii) to the extent permitted by law, the other party goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or becomes subject to Part X of the Bankruptcy Act 1966.
- Both parties may terminate this agreement by notice to the other this agreement will terminate at the end of the notice period.
- If not terminated sooner, the engagement of Tradesign expires at the earlier of the completion of the Services
- GST: All fees referred to in this agreement do not include goods and services tax (GST). Client must pay to Tradesign, on each date Client must make payment for a taxable supply under this agreement, an additional amount equal to the GST payable on the GST free amount of the taxable supply. In this agreement “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
- Other:
- Reference in this agreement to the singular includes the plural, and to any party to this agreement includes the party and its successor, administrator, personal representative, transferees and assigns.
- A notice to be served under this agreement will be duly served if it is in writing and is sent to the address for each party by certified mail, facsimile, personal delivery or email, provided there is proof of delivery.
- Neither party may assign or transfer any right or obligation under this agreement without the written consent of the other.
- Nothing in this agreement constitutes or creates a relationship of partnership, employment, agency or joint venture between Tradesign and Client.
- If any provision or part provision of this agreement is invalid, unenforceable or illegal then it shall be deemed deleted and the remaining parts shall continue to apply with full force and effect.
- This agreement is governed by the law in force in Western Australia. Each party irrevocably submits to the jurisdiction of the courts of Western Australia with respect to any Claim which may be brought at any time relating in any way to this Agreement.
- This agreement may only be varied in writing signed by both Parties.
- Any omission by a party to enforce any provision of this agreement shall not operate as a waiver and will not prejudice the rights of the party to enforce any of the provisions.
- All provisions in this agreement in respect of indemnities, IP ownership, confidentiality and non-solicitation survive the termination of this agreement. This agreement may be exchanged by execution in counterparts and the exchange of executed facsimile or PDF copies shall constitute a binding and complete agreement.
