1.1 The Contract between MM and the Client sets out the terms on which MM will provide the Services to Client.
1.2 This Contract will commence on the date the Order Form is signed and each Service ordered will continue for the Minimum Term. Followin expiry of each Minimum Term MM will continue to provide each Service on a month-to-month, until that Service is terminated in accordance with these Terms & Conditions.
1.3 MM warrants that any services that it provides will be provided with a reasonable level of care and skill, using appropriately skilled personnel.
1.4 The Client acknowledges that MM is providing Services to the Client on a non-exclusive basis and that MM may provide services and products of the same or a similar nature as the Services to any other party (provided that in doing so it does not breach any obligations of confidentiality).
1.5 MM in rendering the performance of this Contract shall be deemed an independent contractor and nothing in this Contract creates a relationship of partnership, employment or principal and agent.
2.1. Where the Client orders Search engine marketing services (“SEM Services”) pursuant to an Order Form, MM will establish an advertising campaign for the Client in respect of such services (“Campaign”) for the amounts set out in the Contract, subject to any adjustments set out below.
2.2. The Client agrees and understands that MM may take up to 14 business days to create and review the Campaign and may require further input from the Client, in which case the date that advertising, in whatever format (“Advertising”) is live (“Actual Start Date”) with one or more online or offline businesses that accept advertising orders (“Publishers”) may be later than the Target Start Date. In addition, the Client acknowledges that Publishers may take several additional days to distribute the Campaign through their network and publications. MM will not be liable as a result of any such delays, and the Client will not be entitled to terminate the Contract in such circumstances. MM will advise the Client of the Actual Start Date as soon as reasonably practicable.
2.3. The Client agrees that MM, in an effort to provide statistics to the Client, may apply certain tracking solutions to the Campaign. Specifically, the Client agrees that MM may do the following for each Campaign: (i) Provision “Tracking Phone Numbers” that will be displayed to the user in lieu of the Client’s phone number and which will forward to the Client’s phone number; and (ii) Deploy click tracking code to track the pages that users may access as a result of the Campaign.
2.4. MM makes no representations or guarantees with respect to usage, visit, or cost per visit statistics for any Ads and does not enter into this Contract in reliance on such statistics. The Client acknowledges that any such statistics provided by MM shall be conclusive and binding on the Client for all purposes of this Contract and not subject to review or challenge by the Client for any reason.
2.5. MM and the Client will work together to select individual words or word phrases (“Keywords”) to be used in the Campaign. MM will take all reasonable efforts to promote the chosen Keywords at the Publishers, however makes no guarantee that all Keywords will be advertised, particularly if advertising all Keywords would result in exceeding the Campaign Management Fees.
2.6. If the Client intentionally or unintentionally includes the names of its competitors or trademarked terms (“Competitor Keywords”), the Client does so at its own risk and accepts all liability associated with such action. Without limiting the above, MM may but is not obliged to, at any time and in its sole discretion, remove Competitor Keywords.
2.7. The Client acknowledges and agrees that the rules for displaying Advertisements when certain Keywords are entered by a user at a Publisher are controlled by the Publisher and as such, the Client agrees that MM makes no guarantee about when or where Advertisements will be displayed when certain Keywords are entered by a user at a Publisher.
4.1. If the Client orders search engine optimization services (“SEO Services”) from MM, then Client acknowledges that whilst MM will use best endeavours to achieve highest possible search engine ranking through on page, structural and external post article and blog management, MM has no control over and will not be liable for search engine algorithm changes that may affect website positioning.
4.2. In order for MM to provide the SEO Services, the Client must provide MM with FTP access to their Website. If the Client fails to do so then MM will not be liable to the Client for failure to provide the SEO Services.
5.1. The Client must pay to, or at the direction of MM, the Fee in the manner set out in this Contract. MM will provide a tax invoice for the Fee, or each instalment of the Fee, in advance of the due date for payment.
5.2. Unless the price for the Services is stated in the Order Form to be fixed, MM is entitled to charge the Client for Services on a time and materials basis at MM’s standard scale of charges from time to time.
5.3. Unless directed otherwise, the Client must pay all invoices within 7 days of receipt. Any Fee or other amount overdue under or in connection with this Contract will attract interest for so long as it is overdue at a rate equal to 2% above the Westpac Business Reference Rate from time to time in effect.
5.4. In the event of any failure by the Client to make payment, the Client will be responsible for all reasonable expenses (including solicitors costs and disbursements on a full indemnity basis) incurred by MM in collecting such amounts. In addition, MM may also cancel or suspend Campaigns until such time as payment is received and will not be liable for the Client for such cancellation.
5.5. If any of the payments to be made to MM under this Contract are subject to a tax such as a goods and service tax, then such payments shall be increased by the amount of such tax and be payable at the same time as payment of the relevant invoice is required. For the purpose of calculating the amount of such increase, no reduction shall be made in respect of any input tax credits, which the Client may be entitled to claim.
5.6. All Fees are subject to change upon notice to the Client.
5.7. If the Client requires any change to the Services during the Term, MM will be entitled to charge the Client its usual charges for doing so.
5.8. Once the Campaign commences, the Client will be responsible for full payment of all Fees related to the Campaign. If the Client cancels or terminates the Campaign for any reason (other than as a consequence of MM’s material breach of the Minimum Term will be immediately due and payable, and all pre-paid Fees will be forfeited.
5.9. The Fees for SEM Services (SEM Services Fee) set out in the Order Form for the Campaign may comprise:
(a) “Campaign Management Fees” which covers: (i) Advertising placed with Publishers (“Campaign Media”); (ii) the conversion based optimisation technology service provided by MM (“Optimisation”); (iii) the management of the Campaign by campaign professionals and (iv) reporting on the performance of the Campaign.
(b) “Campaign Set-Up Fee” refers to the Campaign Set-Up Fee as set forth in the Order Form. MM may, at its discretion, waive the Campaign Set- Up Fee if the Client provides MM with sufficient Campaign setup details from the Client’s previous service provider and the Campaign continues for at least 6 months. For clarity, if the Client provides set-up details to MM but cancels the Contract within 6 months of the Actual Start Date, the Campaign Set-Up Fee will become immediately due and payable to MM by Client.
5.10. In addition to the SEM Services Fees above, MM and Client will set a Campaign Budget, as set out on the Order Form. If the Client chooses to set up Campaign Budget payments directly with Publishers using the Client’s own credit card, then the Client acknowledges that MM is not in control of the amounts and dates such payments are debited by Publishers.
5.11. In the event the Client orders the design of a Website, the Client must pay 25% of the total Website Creation Fee before such work commences, with the balance due on completion of the Website.
5.12. If the Client orders SEO Services, the Client must pay the relevant SEO Services Fee for the chosen package monthly in advance, with the first payment due 10 days prior to commencement of the relevant campaign and monthly thereafter for the duration of the campaign.
6.1. The Client will provide MM with all advertising to be placed with Publishers in the format and within the time frame required by MM and/or Publishers. It is the Client’s sole responsibility to ensure that the content of the advertising it provides to MM is true and accurate and complies with all applicable laws.
6.2. All advertising submitted by the Client under this Contract is subject to the final approval of MM and all relevant approval and statutory authorities including Publishers.
6.3. MM reserves the right to reject or cancel any advertising, whether displayed or not, which is in the reasonable opinion of MM misleading, deceptive, offensive, false, indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libellous or objectionable or if the advertising violates any law, regulation, advertising standard or code of conduct.
6.4. MM’s right to refuse a listing does not constitute endorsement of any advertising that is accepted by MM, not does it constitute a warranty that MM will continue to run an advertisement once accepted. MM has no obligation to inspect advertisements or to reject advertisements that it inspects for any reason.
6.5. The Client grants to MM and its subcontractors a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute the advertisements and any derivative works based thereon created by MM for the purpose of performing its obligations under this Contract. The Client warrants that it has the authority and all necessary third party consents to grant this licence to MM.
6.6. The Client agrees that MM may make changes to advertisements prior to their delivery to Publishers and that once advertisements are submitted to the Publisher, the Client may have limited ability to make further changes to those advertisements. MM reserves the right to modify Advertisements, including the associated keywords, target geographies and Publishers, consistent with Client’s objectives, at any time, even while a Campaign is active.
6.7. The Client agrees that MM, while it will take all reasonable efforts to promote the various products and services that the Client has selected to promote, makes no guarantee that all such products and services will be advertised, particularly if advertising all such products and services would result in exceeding the Campaign Management Fees in the Order Form.
6.8. The Client acknowledges and agrees that Publishers use varying means to detect where people are located when determining whether to display an advertisement, therefore, while MM will use its best efforts to place Advertisements in the target geographies specified by the Client, MM is not ultimately responsible for the display of the Client’s advertisements and, as such, cannot guarantee that the such advertisements will only or primarily be displayed to people in the target geographies.
6.9. Client acknowledges that MM does not produce, operate or transmit the Internet sites or services on which advertisements may appear and that MM acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services. The Client further acknowledges that positioning of advertisements on Publisher sites is at the sole discretion of Publisher.
8.1. The Client and or its agent warrant that:
(a) all advertising submitted under this Contract complies with all relevant laws (including Australian consumer laws), regulations, advertising standards and any applicable codes of practice issued or endorsed by governing bodies and will be free from all computer viruses and all other damaging components;
(b) it holds all necessary rights (including the right to use all information, names, trademarks and search terms it provides or includes in its advertisements) to permit the use of the advertising by MM for the purposes contemplated under this Contract including any URLs, websites and content utilized in connection with Campaign tracking.
(c) the use, reproduction, distribution, transmission or display of the advertisements, any data regarding users, and any material to which users can link, or any products or services made available to users, through the advertisements will not violate any applicable laws or any rights of any third parties.
8.2. The Client agrees to indemnify, defend and hold MM harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal costs and disbursements arising out of or related to: (i) the breach (or alleged breach) of any of representations and warranties contained in clause 8, or any third party claim arising out of or in connection with use of or access to the advertising or any material to which users can link, or any products or services made available to users, through the advertising or to which the advertising relates; (ii) the’ use of Competitive Keywords; or (iii) any other act, omission or misrepresentation by the Client.
8.3. The Client agrees to indemnify and hold MM, and its, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable legal costs and disbursements, made by any third party due to or arising out of content which the submits, posts, transmits or makes available through the online or offline Services provided by MM, or the Client’ use of the Services, violation of this Contract, or violation of any rights of others. The Client’s liability under this clause will be reduced to the extent such loss or damage is caused or contributed to by MM’s negligent act or omission.
9.1. Subject to the Client being able to disclose the contents or existence of this Contract to its subcontractors, the Client shall not disclose the contents or existence of this Contract to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without MM’s prior written consent. MM shall be permitted to identify the Client as a client of MM and may use Client’s name in connection with MM’s marketing materials. Subject to the prior approval of each party, MM may elect to issue a joint press release announcing the Client’s marketing partnership with MM, which approval shall not be unreasonably withheld.
10.1. The Client may terminate any or all of the Services at any time following expiry of the Minimum Term for the relevant Service by giving one month’s written notice to MM. If Client terminates SEM Services for any reason, Client acknowledges that any amounts pre-paid to Publishers will not be refunded, and Client will only be offered a credit for such amounts, which must be spent within the relevant account as directed by Publisher.
10.2. MM shall be entitled to terminate any or all of the Services at any time by giving seven (7) days written notice to the Client. In such circumstances, MM will credit the Client with so much of the pre-paid fee as is proportionate to the period of the term so terminated for the Service.
10.3. Either party may terminate this Contract by giving seven (7) days written notice if the other party:
(a) is in material breach of its obligations under this Contract and fails to remedy such breach within 14 days of the defaulting party receiving a written request to do so from the other party; or
(b) is deemed to be insolvent, or ceases to conduct it business in the ordinary way (except if it has assigned its rights and obligations under these Terms in accordance with these Terms prior to that occurring), or an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, or similar is appointed in respect of the other party or any of its asset.
10.4. In the event of any termination, the Client shall remain liable for any amounts due for Services delivered by MM prior to the date of termination.
10.5. Except as expressly provided in this Contract, MM will not be liable to the Client or any third party for any termination of this Contract or any of the Services.
11.1. The parties agree that no promise or representation made or given by MM, its employees, officers, agents or contractors will be recognised unless contained in this Contract.
11.2. Except for express undertakings to indemnify and any warranties set out in these Terms, to the extent permitted by the law, MM expressly excludes all conditions and warranties whether express or implied.
11.3. Certain provisions of the Australian Consumer Law and other statutes, rules and regulations may imply certain non-excludable terms, warranties or conditions (“Non-Excludable Conditions”). To the extent such conditions cannot be excluded, they are included in these Terms. Where MM is permitted to limit its liability for a breach of a Non-Excludable Condition, MM’s liability will be limited (at its option) to (a) resupplying the services to the Client or (b) paying the Client the cost of having the services supplied to it or (c) refunding the amount paid to MM for the Services.
11.4. Subject to clause 11.3 and to the extent permitted by law, in no event will MM be liable for any indirect, incidental, special, consequential or exemplary damages including but not limited to damages for loss of profits, use, goodwill, data or other intangible losses, cost of procurement of substitute goods or services, or any other special, indirect, or consequential damages (even if MM has been advised of the possibility of such damages) resulting from the Services or any other matter relating to the Services or this Contract.
11.5. MM’s maximum aggregate liability under, arising out of or relating to the Services whether in contract, tort or otherwise, shall not exceed the total amount of Fees actually paid by Client to MM for the Services.
11.6. Without limiting the foregoing, MM shall have no liability for any failure or delay resulting from any governmental action, fire, flood insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of MM.
12.1. This Agreement is governed by the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
12.2. Any variation to this Contract must be made in writing and signed by the parties.
12.3. MM may, without the consent of the Client, subcontract to any party the performance of all or any of MM’s obligations under this Contract provided that MM remains primarily liable for the performance of those obligations. The Client may not assign, transfer or otherwise deal with its rights and obligations under this Contract without the prior written consent of MM (which may be withheld in MM’s absolute discretion).
12.4. This Contract sets out the entire agreement between the parties as to its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
12.5. All provisions of this Contract that by their sense or nature should survive termination of this Contract (including, limits of liability, indemnity obligations, and confidentiality obligations) shall so survive.
12.6. MM’s failure, delay or neglect to enforce a term of these Terms is not to be taken as a waiver of that term or MM’s rights, or a consent to, a waiver of, or any excuse for any different, continuing, or subsequent breach.
12.7. This Contract shall not be binding on MM until it has been accepted by signature by its duly authorised officer.
12.8. If any part of this Contract is held to be invalid or unenforceable in any way, the remaining provisions will not be affected and remain in full force.
12.9. Notices must be in writing and will be effectively served if sent by mail or email to the address of the receiving party, as set out in the Order Form. A party may change its details for notices by written notice to the other party.
13.1. Contract means together these Terms and Conditions and the Order Form supplied to the Client (if any).
13.2. Client means the client/business set out in the Order Form and where applicable includes its officers, employees, contractors and agents.
13.3. Fee means the total fees for the Services specified in the Order Form.
13.4. MM means Mash Media Marketing Pty Ltd ACN 608 263 538.
13.5. Minimum Term means one month from the date of commencement of the relevant Service.
13.6. Order Form refers to the Order Form setting out the Services to be provided to Client.
13.7. Services means the digital marketing and consulting services provided by MM to Client from time to time as contained in the Order Form and may include SEM services, SEO Services and Display Advertising Services.
In this Contract, unless the context requires otherwise:
14.1. in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period;
14.2. the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply;
14.3. a reference to this Contract or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them;
14.4. where an expression is defined anywhere in this Contract, it has the same meaning throughout;
14.5. headings are for convenience of reference only and do not affect interpretation;
14.6. the phrase include, includes or including, or similar phrase does not limit what else might be included;
14.7. a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision;
14.8. a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgements, Australian generally accepted accounting principles and industry-wide non-statutory rules or obligations in force from time to time.
14.9. a reference to dollars or $ is to an amount in Australian currency;
14.10. the singular includes the plural and vice versa;
14.11. a reference to any party to this Contract or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns;
14.12. a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body, and vice versa;
14.13. any schedule, attachment or exhibit, and the description of the parties, all form part of this Contract; and
14.14. a reference to anything (including any amount) is a reference to the whole or any part of it (except that nothing in this provision excuses a party from performing the whole of an obligation just because they have performed part of the obligation); and a reference to a group of persons is a reference to any one or more of them.
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