Effective June 2015
1.The terms of your contract
2.Supply of services
3.Provision of secure access to our systems
5.Fees and payment
Service Terms can be viewed here.
1.1 These General Terms & Conditions apply to the provision of services by ClickMatix Pty Ltd (ACN 601 934 187) (Cliakmatix, we, us, our or the Company) to you as a user and customer (you, your or the Client).
1.2 Your contract with us (“Contract” or “Terms”) for each service or services, including the Web Design Services, SEO Services, PPC Services, Social Media Services or the Content Services (as defined in the Service Terms), and other services defined from time to time in the Service Terms (collectively, the “Service” or “Services”) is made up of:
1.3 The documents listed above supersede all prior arrangements (whether written or oral) in relation to their subject matter. The Company shall communicate to the Client the Campaign Particulars by email. The Client shall acknowledge and accept the Campaign Particulars by reply email (prior to the campaign commencing) and in doing so enters this Agreement for the provision of the Services. In the event, a hard-copy Contract is being utilised the Client shall acknowledge and accept the Campaign Particulars by signing the Agreement and furnishing the Company with a hard-copy, facsimile or scanned copy (prior to the campaign commencing) and in doing so enters this Contract for the provision of the Services.
1.4 We may change the terms of your Contract by giving you notice of the change and posting new versions of any online terms on this page. If you continue to use the Service after that notice period, you will be taken to have agreed to the change. The period of notice depends on the nature of the change. If:
2.1 We shall use reasonable endeavours to supply the Services in accordance with your Contract until the Services are terminated. We shall not be liable for any delay or failure to perform our obligations under this Contract if such delay or failure is due to the termination of access to a Service by the end supplier of the Service or as a result of a change to the conditions of supply by that supplier.
2.2 Monthly contracts will roll on a monthly basis without notice to you. Unless the Service Terms state otherwise, contract Services which are for a fixed term (including all contracts which are not expressly stated as being month-to-month contracts) (“Fixed Term Contract”) will automatically roll over for a further fixed term of the same length on the date notified to you by our reminder notice. If a Fixed Term Contract is not renewed for a further fixed term, but it is not terminated, it will roll over on a monthly basis.
2.3 If your Fixed Term Contract’s Service is to be auto-renewed, we will notify you of, and provide you with the ability to cancel the impending auto-renewal. You must advise us prior to the auto-renewal date if you wish to cancel the Service. If we do not receive your cancellation or “do not renew” advice in time, we will auto-renew the Service to ensure it continues uninterrupted.
2.4 Nothing in the Contract transfers to either party any intellectual property rights (“IPR”) owned by the other party existing prior to the commencement of the Services. All IPR in the materials produced by us in connection with the Services (including websites, designs, information, reports and data) other than your pre-existing IPR, is and will remain owned by us. We grant you a perpetual, irrevocable, non-exclusive, royalty-free licence to use those materials for the purpose of using our Services only.
2.5 You acknowledge and accept that a third party supplier may be used to provide the Service to you and we may change this supplier at any time in our sole discretion. Should a change in supplier occur, you acknowledge and agree that we have full authorisation to move, alter or delete your data as reasonably necessary.
3.1 You must keep all login details secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment).
3.2 You agree that you are totally responsible for all actions of the people (if any) to whom you provide your login details (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those login details, and that we are entitled to treat instructions provided by those people through such access as instructions originating from you.
3.3 You must notify us immediately of any breach of security or unauthorised use of your login details to access our systems. We will not be liable for any loss you incur due to any unauthorised use of your login details.
3.4 You consent to our use of your login details in provisioning the Services, including in respect of any migration or transition of your account, content or data (to or from any suppliers we use) as reasonably necessary for the continued provision of the Services.
4.1 You must provide us with such co-operation and support as we may reasonably request to perform the Services, including by:
4.2 You are solely responsible for obtaining any and all necessary intellectual property clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name, any materials given by you to us, any content that you upload to your Service, and merchant services agreements between you and the relevant financial institutions.
4.3 If you fail to fulfil your obligations in accordance with this clause 4, we may be unable to perform the Services as stated. The fees set out in the Contract (“Fees”) will still be payable as required even if we are unable to perform the services due to your failure to fulfil your obligations in accordance with this clause.
4.4 You indemnify us from and against any and all liabilities incurred by us in connection with:
4.5 Except to the extent that we expressly agree to do so as part of a Service, you must conduct backups of any of your data (whether hosted on our computer systems or provided to us in connection with the performance of the Services) at such intervals as are reasonable having regard to the nature of the data.
5.1 You agree to pay us the Fees set out in the Contract for the Services, in advance as stated by the payment period in the Company details.
5.2 Unless otherwise agreed in writing, Payment of the Fees must be made by direct debit or payment in advance in cleared funds scheduled in advance for the payment period. No work will commence until such payment is made or direct debit scheduled. To minimise service disruption due to credit card expirations, our billing systems will automatically attempt to update the expiry date of your credit card when necessary to process payments, however, we do not guarantee this will be successful. We remind you that it is your responsibility to ensure your credit card details are kept up to date at all times.
5.3 Without prejudice to our other rights and remedies under this agreement, if any Services Fees are not paid on or before their due date, we reserve the right, immediately and at our sole discretion, to suspend the provision of Services to you until such payment is made. In the event of a failed debit payment, the Client agrees to allow to be debited from their account an administration fee of $9.90 including GST by the 3rd party debit provider engaged by the Company (including any interest charged on overdue amounts, calculated at the daily rate of 12% per annum).
5.4 If we have taken action to recover overdue amounts from you, any reasonable costs incurred by us in recovering the debt, including but not limited to any legal expenses and collection agency charges, will be recoverable from you.
6.1 Either party can terminate a Contract for convenience on 45 days notice, to take effect at the end of the term of a Fixed Term Contract, or if there is no term, at the end of the 45-days notice period.
6.2 If you terminate a Fixed Term Contract before the end of its term, and unless the Service Terms provide differently you will be charged an early termination charge equal to the full fee for the term.
6.3 Termination of services must be provided by written notice.
6.4 Either party may terminate this Contract immediately by notice in writing to the other party if:
A “material breach” is defined as a breach of an obligation which is central to the performance of the Agreement which substantially and materially deprives the innocent party of the benefits it would have received under that Agreement. This definition includes but is not limited to breaches of clause 10.10 of these General Terms and Conditions and clause 2.2 of the Service Terms. A breach of a progress goal in accordance with clause 2.14 of the Service Terms will be considered a material breach (remediable or otherwise) only if that breach is not able to be remedied within 1 month.
6.5 If we terminate a Service for a reason set out in 6.4, we shall also be entitled to immediately cease any of our other Services to you.
7.1 If you are not the customer, you warrant that you have the power and authority to enter into this Contract on behalf of the customer and will indemnify us for any breach of the Contract by the customer.
7.2 We do not warrant that the Services will be uninterrupted, timely, secure or error-free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.
7.3 You agree that we may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. We will use reasonable endeavours to provide you with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.
7.4 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise into the Contract, are expressly excluded to the maximum extent permitted by law.
7.5 If any goods or services supplied pursuant to this agreement are supplied to you as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation (“the Acts”), you will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which is so conferred by the Acts.
7.6 However, if the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, we limit our liability to:
8.1 Nothing in the Contract excludes or limits either party’s liability under or in respect of:
8.2 To the maximum extent permitted by applicable law, neither party is liable for:
8.3 Each party’s aggregate liability for any loss or damage in connection with the provision of the Service, which is not excluded or limited under this clause is limited to the charges paid by you in respect of the Services for the preceding 12 months to any such claim.
9.1 You will indemnify and defend ClickMatix and all directors, contractors, officers, employees, and agents of ClickMatix from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees on an indemnity basis or collection fees, commissions, fees, charges and expenses) arising out of, or directly or indirectly relating to:
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
10.1 Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party. A notice will be deemed delivered (a) if sent by email, on receipt by the sender of a receipt confirmation; (b) if sent by fax, on receipt of an error free transmission report; and, (c) if sent by post, two business days following the date of posting.
10.2 Neither party may assign its rights or obligations under this Contract without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that without your consent we may novate this Contract to any of our related bodies corporate or assign this Contract to a successor in connection with any corporate reorganisation, merger, acquisition, or sale of our business or assets to which this Contract relates.
10.3 We are free to sub-contract any of our obligations under the Contract, but such sub-contracting will not release us from our liabilities under the Contract.
10.4 The Contract is to be interpreted in accordance with the laws of the State of Victoria, Australia.
10.5 Our failure to act with respect to a breach by you does not waive our right to act with respect to subsequent or similar breaches.
10.6 In consideration of the Company agreeing to provide the Services to the client, the Client agrees and warrants to the Company that it and its related parties shall not engage any Company staff either as an employee or contractor at any time during the term of this Contract or within 12 months of the termination of this Contract.
10.7 In the event that the Client fails to pay any amount due under this Contract by the due date, the client agrees to pay the Company interest on the amount unpaid until full payment is made at the rate referred to in Section 2 of the Penalty Interest Rates Act 1983 (Vic).
10.8 The parties covenant that they will not at any time make any disparaging comments or disclose any information or make or publish any statement or do any other thing which may tend materially to harm or prejudice the other party’s reputation or good name (prejudicial information), this includes both parties not making disparaging comments or disclosing prejudicial information about the other through the use of social media, web discussion groups, websites or other like forums. The parties agree to immediately remove any prejudicial information posted online immediately upon written request of the other party.
10.9 The parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement and the Company would not have entered into this Agreement without the inclusion of this provision.
10.10 The parties acknowledge and agree that a breach of this non-disparagement provision or disclosure of prejudicial information about the other party as described above will be a material breach of this Agreement and may cause material damage to the other party and that damages may be inadequate compensation for such a breach of this provision and, subject to the court’s discretion, the non-breaching party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of this provision.