These terms and conditions (“Terms”), constitute a legally binding agreement between you (the Client) and About Your Marketing of Unit 2, 5 Bessemer Way Wangara WA 6021, (“AYM”), for the provision of online advertising services and/or other services set out in your client agreement(the “Services”) effective from the date the last party signs client agreement OR starts using the Services..
We may choose to update these Terms and Conditions in the future. When a Client signs an Agreement to use AYM’s Services, the Client agrees to use the latest Terms and Conditions. AYM may choose to not exercise or enforce any right or provision of the Terms and Conditions; in doing so, we are not waiving that right or provision. These terms do contain a limitation of AYM’s liability.
1. Definitions
1.1 The definitions and interpretation clause towards the end of this Section 3 sets out and explains the defined terms used in this agreement and the rules of interpretation that apply
2. Terms
2.1 The definitions and interpretation clause towards the end of this Section 3 sets out and explains the defined terms used in this agreement and the rules of interpretation that apply
3. Services
3.1 Subject to the terms of this agreement, AYM must supply the Services to the Client in consideration of the Client paying the Fee to AYM.
3.2 AYM will commence the provision of the Services on the Commencement Date, and continue to supply it until this agreement is terminated pursuant to these terms. The Client acknowledges that AYM may deliver the Services within a reasonable time after the Commencements Date, as AYM may require time to undertake consultation with the Client and time to prepare the Product.
3.3 The Services will be supplied by AYM until this agreement is terminated pursuant to these terms.
3.4 The Services may be supplied by such employees, contractors or agents that AYM may choose as most appropriate to carry out the supply.
3.5 The Client must:
a) provide any brand guidelines to AYM for the purpose of AYM creating any marketing material and advertisements;
b) allow access by AYM to the Client’s Facebook page, back-end of its website, any email marketing system and any other access reasonably required to achieve AYM’s objectives under this agreement;
c) provide copies of logos, trademarks, and any other material required by AYM for it to create an advertising campaign, landing page, and other marketing material;
d) make contact with the leads provided and generated AYMin a timely manner;
e) pay Facebook and any other advertising platform used by AYM all advertising fees it is due as a result of AYM performing services for the Client;
f) set-up and pay for an email marketing system recommended by AYM;
g) prepare and provide information pertinent to a Lead Magnet suitable to be used by AYM in generating leads;
h) make available to AYM all relevant information, documentation, data or other material in a timely manner as required for the provision of the Services;
i) provide assistance to AYM as reasonably required so that AYM may competently perform its duties under this agreement; and
j) own the copyright in the material it provides to AYM, and it warrants to AYM that is does own it the copyright in all material.
3.6 A reference to Lead Generation means:
a) AYM will provide lead generation services for any product or service the Client intends to sell.
b) AYM will advertise on the Client’s behalf using the Facebook platform. AYM will use the ClickFunnels platform or any other suitable platform to create landing pages to capture leads for the Client.
c) AYM will create advertising material using the Client’s branding guidelines and its marketing material.
d) Advertisements will be prepared in consultation with the Client, however, AYM will have the discretion on how to conduct the campaign.
e) AYM will attempt to obtain the Goals of the Client. The Client acknowledges that AYM makes no representation that the Goals can be achieved.
f) AYM will Use Its Reasonable Endeavours To Spend Within The Monthly marketing budget. The Monthly Marketing Budget may be amended from time to time by the Client giving written notice to AYM .
4. Fees, Expenses & Debit Facility
4.1 In consideration of the provision of Services in accordance with this agreement, the Client will pay AYM the Fee each month by the due date.
4.2 The fee payable by the Client for the provision of the Services is inclusive of GST.
4.3 The Client must pay the Fee monthly in advance. The first monthly payment of the Fee is due within 3 business days of the Client executing this agreement. To avoid doubt, AYM is not obliged to perform any services until the monthly fee is paid in advance.
4.4 The Client must pay any Deposit specified in this agreement within 7 days of executing this agreement.
4.5 If the Client requires additional modifications to the Services, additional charges may be incurred and will be discussed with the Client prior to any work being undertaken.
4.6 the authority to directly debit the Fee from the client’s nominated bank account on a monthly basis.
4.7 The Client must repay to AYM any expenses that AYM incurs in performing the Services on behalf of the Client, which includes but is not limited to the following:
a) fees for advertising on the Facebook platform;
b) fees for advertising on any other social media or online platform;
c) fees for any email marketing platform;
d) fees incurred in paying third parties to perform services on behalf the Client.
5. Confidentiality
5.1 With respect to the Services, the Client must:
(a) keep confidential all information and technical data disclosed by AYM to the Client, provided that the Client has the right to disclose such information to its employees and other people in so far as it is necessary for them to know the information for the use of the Services in the course of the Client’s business.
(b) not use any of AYM disclosures or other information or technical data except for the purposes specified in this agreement.
5.2 AYM must not, without the prior written consent of the Client, use or disclose any documents in connection with the Services of this agreement, which is marked confidential by the Client related to the Services (“Confidential Information”), other than as necessary to provide and/or maintain the Services.
5.3 Despite the above, either Party may disclose Confidential Information if and to the extent that:
(a) such disclosure is required by law, or
(b) the information is generally available in the public domain except where that is a result of a disclosure in breach of this agreement.
6. Intellectual Property Ownership
6.1 The Intellectual Property in the Services or any document or thing related to the services, and any additions or enhancements incorporated into the Services by AYM is owned by AYM.
6.2 While this agreement is in force, AYM provides a non-exclusive, non-transferrable, royalty free licence to the Client to access, use, customise, communicate and reproduce AYM’s Intellectual Property to the extent necessary for the Client to obtain the benefit of the Services. When this agreement ends or is terminated, the licence specified in this clause is automatically revoked, and the Client no longer has any permission to access, use, customise, communicate or reproduce any of AYM’s Intellectual property.
6.3 The Intellectual Property in any of the Client’s pre-existing material owned by the Client prior to the commencement of this agreement and used in the delivery of the Services is owned by the Client.
6.4 The Client grants AYM an irrevocable, world-wide, non-exclusive, non-transferable, royalty-free licence to use, reproduce or adapt the client’s Intellectual Property for purposes related to the provision of the Services to the Client under this agreement.
6.5 The Client must advise AYM as soon as reasonably possible, in writing, if there is any Claim or any legal threat by any third party in respect of the Intellectual Property owned by AYM or the Client relating to the provision of the services under this agreement.
7. Warranties, liability, indemnities & Limitation of Liability
7.1 AYM provides the Services to the Client at the request of the Client.
7.2 The Services is provided without warranty of any kind, express or implied.
7.3 AYM does not warrant that:
(a) the Services will be error free, or
(b) the Services will be provided without interruption.
7.4 If AYM supplies the Services (or any part of it) negligently or in breach of this agreement, then the Client must give AYM the opportunity to re-supply the relevant part of the Services to rectify the same.
7.5 AYM provides no warranty that any Goal, result or objective can or will be achieved or attained at all or by any completion date or any other date, whether stated in this agreement or elsewhere.
7.6 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Act (or similar legislation) in each of the States and Territories of Australia where AYM undertakes the work, except to the extent permitted by those Acts where applicable.
7.7 Without limiting any other term in this document, where the Client is a consumer (as defined by the ACL) but the goods or services supplied by AYM to the Client are not of a kind ordinarily acquired for personal, domestic or household use or consumption, AYM’s liability under the consumer guarantees (as defined by the ACL) is limited, at AYM’s option, to one or more of the following:
(a) replacing or repairing the product supplied to the Client;
(b) reimbursing the Client for the cost of replacing or repairing the product supplied to the Client;
(c) re-supplying the Services supplied to the Client again;
7.8 In all other circumstances, and without limiting any other term in this document, to the full extent permitted by law, (including but not limited to the ACL, any relevant federal, State or local statute as amended from time-to-time and the common law), AYM will not be liable in any circumstances for any Loss or damage (including consequential loss or damage including loss of profit) to the Client or any property or person whatsoever arising out of or connected with:
(a) these terms;
(b) the Client’s access to, use of or inability to use any of the product or Services.
(c) the provision of the any product or Services under this agreement;
(d) the delay in delivery, delay or non-delivery of any product or Services supplied to the Client; or
(e) the delay in completing or a breach of this document by AYM.
7.9 The Client indemnifies AYM and each of AYM’s employees, contractors and agents against any Loss, Claim, damage or expense (including legal fees on a full indemnity basis) incurred by AYM or any of AYM’s employees, contractors and agents arising directly or indirectly out:
(a) infringement of third party Intellectual Property, or third party Losses by reason of or arising out of any information supplied to the Client by AYM, its employees, agents or consultants, or supplied to AYM by the Client within or outside of the scope of this agreement; or
(b) of any breach by the Client of this agreement; or
(c) the Client failing to follow the reasonable advice of AYM.
8. Marketing Material
8.1 The Client authorises AYM to use the Client’s name and logo in AYM marketing material, including on the AYM website and in promotional documents.
8.2 The Client may withdraw permission for AYM to use its name and logo in marketing material at any time by providing written notice to AYM.
9. Disputes
9.1 When a dispute arises under this agreement, a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute. Each party will then, in good faith, attempt to resolve the dispute by negotiation within the next 14 days from the date of the complaint, or longer period if the parties agree in writing.
9.2 Except in the case of urgent injunctions, the parties agree to attempt to resolve any dispute in accordance with this clause prior to enforcing any other rights permitted by law in relation to this agreement.
10. Termination
10.1 AYM reserves the right to immediately terminate the agreement in the event that:
(a) the Client fails to pay the Fee within the agreed terms;
(b) the Client becomes an externally administered body corporate or insolvent, bankrupt, or subject to laws relating to guardianship or diminished mental capacity;
(c) If AYM believes the any product and Services is being used by the Client to commit illegal or unauthorised activity; or
(d) if the Client fails to follow the reasonable advice of AYM.
10.2 The client is able to terminate their agreement with AYM with 30 days written notice.
11. Miscellaneous
11.1 This agreement may only be amended in writing signed by duly authorised representatives of the parties.
11.2 This agreement expresses and incorporates the entire agreement between the parties and supersedes and excludes any prior or collateral negotiation, understanding, communication, representation or agreement by or between the parties.
11.3 Nothing in this document makes ineffective, or reduces, any protection at law from liability which AYM is entitled to in the state or territory of the applicable law.
11.4 This agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement.
11.5 The Client does not have, and must not represent that it has any authority to make any commitments on AYM’s behalf.
11.6 This agreement is governed by and construed under the law of the State of Western Australia. Any legal action relating to this agreement must be brought in any court of competent jurisdiction in the State of Western Australia, and the parties irrevocably, generally and unconditionally submit to the exclusive jurisdiction of the courts of that State.
11.7 Any failure by the parties to exercise any right under this agreement in whole or in part does not operate as a waiver.
11.8 Any provision or part provision of this agreement that is invalid, unenforceable or illegal for any reason in any jurisdiction, is invalid, unenforceable or illegal in that jurisdiction to that extent. It will not invalidate, make unenforceable or illegal, or affect the remaining provisions of this agreement or the validity, enforceability of legality of that provision in any other jurisdiction.
11.9 The Client must not transfer any right or liability under this agreement without the prior written consent of AYM.
11.10 AYM may assign its rights or liabilities under this agreement at its absolute discretion.
11.11 This agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same agreement.
11.12Any notice may be served by delivery in person, by post or by email to the address or email of the recipient most recently notified by the recipient to the sender.
11.13 Any notice to or by a party under this document must be in writing and signed by either the sender or, if a corporate party, an authorised officer of the sender or the party’s solicitor.
11.14 Any notice is effective for the purposes of this document on delivery to the recipient or production to the sender of a fax confirmation report before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next day following delivery or receipt.
11.15 The addresses for service for notices of the parties are the addresses specified above or any address a party advises the other in writing from time to time.
11.16 The terms specified in the Special Conditions apply to this agreement. In the event that there is any inconsistency between the terms in this Section 3 and the terms of the Special Conditions, the Special Conditions take priority.
12. Interpretations
12.1 In this document, unless the context requires otherwise (and whether capitalised or not):
(a) ACL means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
(c) Client means the person or entity described in item 1 of Section 1;
(d) Commencement Date means the date specified in item 2 of Section 1;
(e) Deposit means the deposit specified in item 7 of Section 1;
(f) Fee means the amount that the Client is required to pay to AYM for the supply of the Services as specified in item 5 of Section 1;
(g) Goals means the targets specified in Item 4 of Section 1;
(h) GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
(i) Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
(j) Lead means name and email or phone number of a prospect that the Client wishes to do business with;
(k) Lead-Generation has the relevant definition specified in clause 3;
(l) Lead Magnet means a thing to offer to prospects of the Client in exchange for the prospect’s contact details;
(m) Loss or Losses means all losses including financial losses, damages, legal costs and other expenses of any nature;
(n) Monthly Marketing Budget means the budget allocated for advertising specified in item 6 of Schedule 1.
(o) Services means the services that are specified in item 4 of section 1;
(p) Special Conditions means the terms, if any, specified in item 8 of Section 1;
12.2 In this document, unless the context requires otherwise:
(a) headings are for reference purposes only, except when there is an express references to Sections 1 to 3 which refers to the headings labelled Section 1, Section 2 and Section 3 respectively;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) a reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this document includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the word “including” (and related forms including “includes”) is understood as meaning “including without limitation”;
(i) the expression at any time includes reference to past, present and future time and performing any action from time to time;
(j) an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
(k) a reference to an exhibit, annexure, section, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment, section or schedule in this document;
(l) a reference to a clause described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this document means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
(m) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated;
(n) a provision of this document must not be construed to AYM’s disadvantage merely because it was responsible for the preparation of this document or the inclusion of any term in this document;
(o) to avoid doubt, and without limitation, the term “in writing” or such similar term includes by email;
(p) unless expressly stated otherwise, a reference to dollars or $ is to an amount in Australian currency;
(q) Each person executing this document on behalf of the Client warrants and represents that they have full authority to enter into this agreement on behalf of the Client.
