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Service Terms & Conditions.

Leadr Pty Ltd (ACN 621 657 743) (“us”, “we”, “our”, “Leadr“) provides digital marketing services to businesses, such services which are promoted, available to purchase and delivered through our website, located at www.getleadr.com (“Website”).

The terms and conditions set out below in this agreement (“Agreement”) apply to our provision of the Services (defined below) to all customers and clients (referred to as “you” in this Agreement). This Agreement is subject to change, in accordance with clause 1.3 below.

Please read this Agreement carefully before submitting the Registration Form (defined below). If you do not agree with the terms of this Agreement, you should not use our Services or submit the Registration Form.


TERMS AND CONDITIONS

 

  1. Application and Variation of Agreement

 1.1 In order to access the functionality of the Website and to request Services, you must complete the user registration sign up form on the Website (“Registration Form”).

 1.2 By submitting the Registration Form and checking “I accept” in relation to this Agreement, you accept and agree to be bound by the terms and conditions of this Agreement from that time (“Commencement Date”).

1.3 We reserve the right to amend this Agreement at any time during the Term. We will notify you of any amendments through the Website and your User Account (as defined below).  Your continued use of our Services following notification of such amendments to the Agreement, or checking “I accept” in relation to such amendments to the Agreement where prompted on the Website, will constitute acceptance by you of those amendments.

  1. User Account & Term

2.1 Upon submitting the Registration Form, we will provide you with a user account for accessing a “members only” area of the Website to communicate with us regarding provision of the Services (“User Account”).

2.2 You will be required to create a unique password to obtain access to your User Account (“Password”). You are responsible for maintaining the confidentiality of your Password and undertake not to allow the security of your User Account to be compromised through misuse of your Password. In the event that your User Account is compromised, please notify us immediately.

2.3 The term of this Agreement is from the Commencement Date until this Agreement is terminated in accordance with clause 14 (“Term”).

  1. Engagement

3.1 To engage us to provide any Services, you must purchase a plan (each a “Service Plan”, collectively “Service Plans”) while completing the Registration Form. Further information about Service Plans, inclusions and Service Fees (as defined in clause 10 below) can be found on the Website. To purchase a Service Plan, you must pay the relevant Set-Up Fee (defined in clause 10 below) at the time of purchase.

3.2 To purchase a Service Plan, you will be required to provide your credit card details for payment of the Service Fees and any applicable Third Party Fees (as defined in clause 10 below). The Service Fees and any Third Party Fees applicable to your selected Service Plan will be charged in accordance with the terms of clause 10 of this Agreement (see below).

3.3 Once you have purchased a Service Plan, the “set-up” phase for our Services will begin, during which we will gather information about your business so that we can tailor the provision of our Services under your Service Plan accordingly (“Set-Up Phase”). We will endeavour to complete the Set-Up Phase within 7 days of purchasing your Service Plan.

3.4 You can upgrade or downgrade the type of Service Plan linked to your User Account at any time by providing us with 7 days written notice. The change will take effect from the commencement of the next Billing Cycle (as defined in clause 10 below) following the end of the required notice period.

  1. Services

 4.1 We will provide some or all of the following digital marketing services to you (such Services which will be expressly listed in your Service Plan):

a. search engine optimisation services for the Google search engine (“Search Engine Optimisation Services”) in relation to a specific business website nominated by you while completing the Registration Form (“Client Website”);

b. search engine marketing services for the Google search engine (“Search Advertising Services”) in relation to the Client Website;

c. social media advertising services (“Social Advertising Services”) provided through social media platforms included in your Service Plan (“Social Platforms”);

d. digital display advertising services (“Display Advertising Services”); and/or

e. any Additional Services (as defined in clause 9 below);

 (jointly and severally, the “Services”).

 4.2 We agree to provide Services in a professional, timely and skilful manner.

 4.3 You agree to provide the following to enable us to effectively provide the Services:

a. materials, content, information, feedback, approvals and other assistance required by us, in a timely and constructive manner; and
b. any login details or online access that we may require for the purpose of performing our obligations to you under this Agreement.

 4.4  This Agreement is a non-exclusive agreement in that it does not restrict you from engaging other third party providers to provide the Services during the Term, and does not restrict us from providing Services to other clients or customers during the Term. For the avoidance of doubt, due to the nature of our Services being available to purchase by the general public, we are not limited in any way from providing Services to any clients or customers that may compete with your business in any way, including through offering similar goods and services as your business and/or operating in the same geographical area as your business.

  1. Search Engine Optimisation Services

5.1 If we carry out Search Engine Optimisation Services as part of your Service Plan, we will:

a. attempt to increase the Google search engine ranking for the Client Website through searches conducted using keywords agreed between the parties in writing during the Set-Up Phase, and as varied in writing from time to time during the Term in accordance with the terms of this Agreement (“Search Engine Optimisation Keywords”). During the Set-Up Phase, we will assist with research and selection of Search Engine Optimisation Keywords in consultation with you; and

b. provide the Search Engine Optimisation Services in accordance with any other terms applicable to your Service Plan.

5.2 The number of Search Engine Optimisation Keywords which you can select that will be subject to the Search Engine Optimisation Services is limited to the number of keywords permitted under the terms of your Service Plan (“Search Engine Optimisation Keyword Limit”). If you wish to increase the Search Engine Optimisation Keyword Limit during the Term, you will need to upgrade your Service Plan in accordance with the terms of this Agreement.

5.3 If you wish to change the Search Engine Keywords from those which the parties have agreed to use in writing at any given time during the Term, you must provide 7 days of notice in writing to us. We will change the Search Engine Optimisation Keywords in response to your request:

a. provided that we have not implemented any changes to the Search Engine Optimisation Keywords at your direction within the three month period preceding your request during the Term; and

b. subject to clause 5.4.In the event that the Search Engine Optimisation Keywords are changed in accordance with this clause, we will attempt to increase the Google search engine ranking for the Client Website for searches conducted using the changed Search Engine Optimisation Keywords.

5.3 Changes to the Search Engine Optimisation Keywords sought in compliance with clause 5.3 will take effect from the commencement of the next Billing Cycle following the end of the required notice period for making a request.

5.4 While providing the Search Engine Optimisation Services, we may recommend changes to the Client Website from time to time which we consider may assist the Client Website to improve in organic rankings on the Google search engine in respect of the Search Engine Optimisation Keywords (Optimisation Changes). In this event, the following terms apply:

a. We may request to undertake the Optimisation Changes. In this event, you must provide us with any login details or online access that we may require for the purpose. We will not make any Optimisation Changes to the Client Website without your prior written consent.

b. We may request that you undertake the Optimisation Changes. In the event that you do not comply with making the Optimisation Changes, or do not correctly undertake the Optimisation Changes, we are not responsible or liable for any impact this may have in the performance of the Search Engine Optimisation Services.

  1. Search Advertising Services

 6.1 If we carry out the Search Advertising Services as part of your Service Plan, we will place paid text advertisements on the Google search engine for the Client Website in accordance with:

a. any keywords, campaigns and ad groups which the parties agree in writing during the Set-Up Phase, and as varied in writing from time to time during the Term in accordance with the terms of this Agreement (“Search Advertising Scope”). During the Set-Up Phase, we will assist with the selection of the Search Advertising Scope in consultation with you;

b. the set weekly budget with Google for the Search Advertising Services as included in your Service Plan (“Minimum Search Advertising Budget”), or as increased in writing from time to time during the Term in accordance with the terms of this Agreement (“Varied Search Advertising Budget”); and

c. any other terms applicable to your Service Plan.

 6.2 In order to provide the Search Advertising Services, we will create an account with Google for this purpose, linking paid text advertisements to the Client Website (“Search Advertising Account”). You acknowledge and agree to the following:

 a. you have read and agreed to the terms and conditions for the registration and use of the Search Advertising Account, available at https://support.google.com/adspolicy/answer/54818?visit_id=636699199836660535-983152615&rd=1 (“Search Advertising T&C’s”);

b. you authorise us to act as agent in agreeing to the Search Advertising T&C’s on your behalf, and you will be responsible and liable for compliance with the Search Advertising T&C’s at all relevant times;

c. we will have the right to terminate this Agreement immediately in writing in the event that we suspect our use of the Search Advertising Account on your behalf would breach the Search Advertising T&C’s; and

d. we will have sole and full control of the Search Advertising Account, subject to any rights given to you under this clause 6.

6.3 If you wish to make a request to change the Minimum Search Advertising Budget or Varied Search Advertising Budget (collectively, the “Search Advertising Budget”), or the Search Advertising Scope, you must provide 7 days of notice in writing to us. We will change the Search Advertising Scope or Search Advertising Budget in response to your request, subject to clauses 6.4 and 6.5, and provided that:

a. for the Search Advertising Scope, we have not implemented any changes to the Search Advertising Scope within the one month period preceding your request during the Term; or

b. for the Search Advertising Budget, any changes are sought by you only once per Billing Cycle during the Term, and the change sought is not for an amount less than the Minimum Search Advertising Budget.

6.4 Changes to the Search Advertising Scope or Search Advertising Budget sought in compliance with clause 6.3 will take effect from the commencement of the next Billing Cycle following the end of the required notice period for making a request.

6.5 Any increases to the Search Advertising Budget sought in compliance with clause 6.3 will be subject to a 3% variation fee (calculated on the total of the increase to the Search Advertising Budget and charged each Billing Cycle from the increase taking effect) to cover our time in servicing the Search Advertising Account in response to the increased Search Advertising Budget.

 

  1. Social Advertising Services

7.1 If we carry out the Social Advertising Services as part of your Service Plan, we will post paid advertisements on the Social Platforms to promote your business. We will carry out the Social Advertising Services in accordance with:

a. the set weekly budget with the relevant third party media providers used in providing the Social Advertising Services as included in your Service Plan (“Minimum Social Advertising Budget”), or as varied from time to time during the Term in accordance with the terms of this Agreement (“Varied Social Advertising Budget”);

b. the target audience, market, geographical area and services for your business that you wish to promote through the Social Advertising Services, as agreed by the parties during in writing the Set-Up Phase or as varied from time to time during the Term in accordance with the terms of this Agreement (“Social Advertising Target”). We may set the Social Advertising Target based on information you have provided us about your business during the Set-Up Phase or from information on your business website; and

c. any other terms applicable to your Service Plan and subject to clause 7.2.

7.2 In order to provide the Social Advertising Services through your social media accounts on the Social Platforms (“Social Accounts”), you must grant us “agency permission” to post advertisements on your behalf on the Social Platforms through the Social Accounts (“Agency Permissions”).

7.3 You will have a right to approve the proposed content of any paid advertisements before they are placed on the Social Platforms by us through our Agency Permissions. Where you are required to give approvals, you agree to provide those approvals in a timely fashion. We will not place the relevant advertisements on the Social Platforms through our Agency Permissions until you have given prior approval on the proposed content.

7.4 If you request any changes to be made to the proposed content of any paid advertisements before giving your approval under clause 7.3, this may be require the provision of Additional Services and attract Additional Services Fees (see clause 9) depending on the scope of changes sought and the terms of your Service Plan.

7.5 If you wish to make a request to change the Minimum Social Advertising Budget or Varied Social Advertising Budget (collectively, the “Social Advertising Budget”), or the Social Platforms or the Social Advertising Target, you must provide 7 days of notice of your request in writing to us. We will change the Social Advertising Budget, Social Platforms or Social Advertising Target in response to your request, subject to clauses 7.6 and 7.7, provided that:

a. for the Social Advertising Target, we have not implemented any changes to the Social Advertising Target within the one month period preceding your request during the Term;

b. for the Social Advertising Budget, any changes are sought by you only once per Billing Cycle during the Term, and the change sought is not for an amount less than the Minimum Social Advertising Budget.

7.6 Changes to the Social Advertising Budget, Social Platforms or Social Advertising Target sought in compliance with clause 7.5 will take effect from the commencement of the next Billing Cycle following the end of the required notice period for making a request.

7.7 Any increases to the Social Advertising Budget sought in compliance with clause 7.5 will be inclusive of a 3% variation fee (calculated on the total of the increase to the Social Advertising Budget and charged each Billing Cycle from the increase taking effect) to cover our time in servicing the Social Accounts in response to the increased Social Advertising Budget.

 

  1. Display Advertising Services

8.1 For the Display Advertising Services, we will place paid display advertisements online (at internet locations determined by us in our sole discretion) for the purpose of promoting your business. We will carry out the Display Advertising Services in accordance with:

a. the set weekly budget with the relevant third party media providers used in providing the Display Advertising Services as included in your Service Plan (“Minimum Display Budget”), or varied in writing from time to time during the Term in accordance with the terms of this Agreement (“Varied Display Budget”);

b. the target audience, market, geographical area and services for your business that you want to promote through the Display Advertising Services, as agreed by the parties in writing during the Set-Up Phase or varied in writing from time to time during the Term in accordance with the terms of this Agreement (“Display Target”). We may set the Display Target based on information you have provided us about your business during the Set-Up Phase or from information on your business website; and

c. any other terms applicable to your Service Plan.

8.2 In order to provide the Display Advertising Services, we may need to create an advertising account with Google for this purpose (“Display Account”). You acknowledge and agree to the following:

a.  you have read and agreed to the terms and conditions for the registration and use of the Display Account, available at https://support.google.com/adspolicy/answer/54818?visit_id=636699199836660535-983152615&rd=1 (“Display Advertising T&C’s”);

b. you authorise us to act as agent in agreeing to the Display Advertising T&C’s on your behalf, and you will be responsible and liable for compliance with the Display Advertising T&C’s at all relevant times;

c. we will have the right to terminate this Agreement immediately in writing in the event that we suspect our use of the Display Account on your behalf would breach the Display Advertising T&C’s; and

d. we will have sole and full control of the Display Account, subject to any rights given to you under this clause 8.

8.3 You will have a right to approve the proposed content of any paid advertisements before they are placed online through our providing the Display Advertising Services. Where you are required to give approvals, you agree to provide those approvals in a timely fashion. We will not place the relevant advertisements online until you have given your prior approval on the proposed content.

8.4 If you request any changes to be made to the proposed content of any paid advertisements before giving your approval under clause 8.3, this may require the provision of Additional Services and attract Additional Services Fees (see clause 9) depending on the scope of changes sought and the terms of your Service Plan.

8.5 If you wish to change the Minimum Display Budget or Varied Display Budget (collectively, the “Display Budget”), or Display Target, you must provide 7 days of notice of your request in writing. We will change the Display Budget or Display Target in response to your request, subject to clauses 8.6 and 8.7, provided that:

a. for the Display Target, we have not implemented any changes to the Display Target within the one month period preceding your request during the Term;

b. for the Display Budget, any changes are sought by you only one per Billing Cycle, and the change sought is not for an amount less than the Minimum Display Budget.

8.6 Changes to the Display Budget or Display Target sought in compliance with clause 8.5 will take effect from the commencement of the next Billing Cycle following the end of the required notice period for making a request.

8.7 Any increases to the amount of the Display Budget sought in compliance with clause 8.5 will be subject to a 3% variation fee (calculated on the total of the increase to the Display Budget and charged each Billing Cycle from the increase taking effect) to cover our time in servicing the Display Account in response to the increased Display Budget.

 

  1. Additional Services

9.1 During the Term, you may request for us to provide Services that are not included in the terms of your Service Plan (“Additional Services”).

9.2 We are under no obligation to accept a request to provide Additional Services.

9.3 If we accept a request to provide Additional Services, we reserve the right to charge additional fees for providing the Additional Services (“Additional Services Fees”). The Additional Services Fees will be agreed by the parties in writing, and payable to us by you in accordance with clause 5, before we will accept and provide the requested Additional Services to you.

9.4 Further information about Additional Services, inclusions and Additional Services Fees can be found on the Website.

 

  1. Payment Terms

10.1 In consideration for the provision of our Services under this Agreement, you agree to pay the following categories of fees, the amounts of which are specified under the terms of your Service Plan or otherwise in writing:

a. our fee for undertaking the Set-Up Phase (“Set-Up Fee”);

b. our management fee for the ongoing provision of the Services after the Set-Up Phase is complete (“Management Fee”); and

c. Additional Services Fees (where applicable);

d. (collectively, the “Service Fees”).

10.2 Where applicable, you also agree to pay the Search Advertising Budget, Social Advertising Budget and/or Display Budget to us (collectively, the “Third Party Fees“), which we will then use to pay to the relevant third party media provider on your behalf for the purposes of providing the Services.

10.3 You will be required to pay the Set-Up Fee at the time of purchasing your Service Plan and before we commence the Set-Up Phase. The Set-Up Fee is non-refundable in the event of your change of mind, where you do not wish to continue with the Services.

10.4 From 7 days after purchasing your Service Plan, and unless otherwise agreed by the parties, we will automatically direct debit the following amounts upfront on a weekly basis from your nominated bank account or credit card linked to your User Account (“Billing Cycle”):

a. the Management Fee; and

b. Third Party Fees (where applicable).

10.5 Further to clause 4, before we commence providing any Additional Services to you, you will be required to pay the Additional Services Fees in full (where any payment is applicable to the provision of Additional Services by us) through direct debit from your nominated bank account or credit card linked to your User Account.

10.6 We use Stripe to facilitate all direct debits made to you under this Agreement. Through making any direct debit payments to us under this Agreement, you agree that you are subject to Stripe’s then Checkout User Terms of Service (which can be viewed at stripe.com/au/checkout/legal).

10.7 We will issue invoices for the Set-Up Fee, Management Fee, Additional Services Fees and/or Third Party Fees (as applicable to your Service Plan) periodically during the Term as confirmation of the payments processed under this clause 10.

10.8 We reserve the right to immediately suspend providing our Services in the event of an unsuccessful direct debit made under clause 10.4, and not re-commence providing the Services until a successful direct debit or payment of any fees owing to us under clause 10.4 is made.

10.9 For payment of the Third Party Fees, we will rollover any unused amounts in a single Billing Cycle to the next Billing Cycle where the difference between what is paid by you and what is spent with the relevant third party media provider during a Billing Cycle is greater than a 2.5% difference. For differences in spend that are less than 2.5%, the amounts will be forfeited and not refunded or rolled over, as we do not have the resources to implement rollovers for all minor unused amounts.

10.10 We reserve our right to vary the Management Fee payable under this Agreement at any time during the Term, provided that we have given 7 days of notice to you in writing of the change, to commence from the next Billing Cycle following the end of the required notice period. In the event that you do not agree to the variation of the Management Fee, you may terminate this Agreement by providing us with 7 days of notice in writing.

10.11 If GST is or becomes payable on us making a supply under this Agreement, the parties agree that consideration for the supply is to be considered exclusive of GST and we may recover from the recipient an additional amount equal to the consideration for the supply multiplied by the prevailing GST rate, such amount which will be due at the same time as the consideration. For the purposes of this Agreement, “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

10.12 All direct debits made by us under the terms of this Agreement will be calculated inclusive of any GST (where payable under clause 10.11), with any amounts payable as GST specified in our invoices issued under clause 10.7.

  1. Sub-Contractors

 11. 1 We are permitted to engage appropriately skilled independent sub-contractors (“Sub-Contractors”) to assist us to perform Services.

 

  1. Intellectual Property

12.1 For the purpose of this clause, “Intellectual Property” means all items of intellectual property including without limitation trade marks (registered or unregistered), copyrights, patents, inventions, discoveries, advertising copy, keywords, slogans, reports, text, templates, business processes, techniques, drawings, designs, illustrations, photographs, images, specifications, dimensions and any other physical or digital media (and includes all future rights).

12.2 The Intellectual Property rights in all materials and documents created or developed by the parties in connection with the provision of the Services or otherwise in relation to this Agreement (“Materials”) will automatically vest in and become our exclusive property throughout the world in perpetuity, or otherwise is hereby assigned from you to us, excluding any Client IP (defined in clause 12.6 below).

12.3 While this Agreement will constitute a written assignment of all Intellectual Property rights in the Materials to us, you agree to further execute all necessary documents and do all further things required or desirable to secure our Intellectual Property rights in the Materials if and when necessary or upon our request.

12.4 You warrant that our use of any of your contributions to the creation of the Materials will not infringe the Intellectual Property rights of any third parties.

12.5 You may not use, reproduce, copy, adapt, modify or alter the Materials without our prior written consent.

12.6 You grant us a non-exclusive, worldwide, assignable, sub-licensable, transferrable, non-revocable and royalty-free licence during the Term to use any Intellectual Property which was initially created and/or owned by you independently of your rights and obligations under this Agreement, that is supplied by you to us for the purpose of creating and using the Materials or otherwise performing our obligations under this Agreement (“Client IP”). You warrant that our use of Client IP will not infringe the Intellectual Property rights of any third parties. We reserve the right to reject any Client IP for inclusion in the Materials which we believe may infringe the Intellectual Property or other rights of third parties.

 

  1. Confidentiality

13.1 The parties agree not to directly or indirectly use or disclose any Confidential Information belonging to the other party for any unauthorised purpose and will only use Confidential Information to fulfill their obligations to each other as set out in this Agreement. This obligation will continue until all Confidential Information is in the public domain (except by reason of a breach of this clause by a party or any other obligation on a party to retain the confidence of the Confidential Information), regardless of whether the Term has ended.

13.2 For the purpose of this Agreement, “Confidential Information” means any information belonging to or relating to a party to this Agreement howsoever acquired that is marked confidential or by its nature confidential, including without limitation trade secrets, Intellectual Property, know-how, techniques used by us to execute the Services, business and financial data, policies, plans, databases, marketing and strategic plans, commercial and business plans, client lists and reports.

 

  1. Termination

14.1 The parties may terminate this Agreement at any time without cause provided that the other party is given 7 days of notice in writing.

14.2 You may terminate this Agreement pursuant to clause 10.10 of this Agreement.

14.3 Where this Agreement is terminated under clause 14.1 and 14.2:

a. We will charge you for Services provided up to the end of the Billing Cycle during which termination of this Agreement takes effect. You will also be liable to pay for all expenses, third party costs and service fees that we have incurred or have committed to incur in relation to the Services (as determined by us) which remain unpaid by you;

b. We will terminate your User Account after the end of the Billing Cycle during which termination of this Agreement takes effect;

c. You authorise us to deactivate and otherwise delete the Social Advertising Account and Display Account (where applicable) after termination of this Agreement takes effect.

d. Without limiting clause 12, you will not have any right or licence to use, reproduce, copy, adapt, modify or alter the Materials following the termination of this Agreement.

 

  1. Warranties

15.1 You warrant that each of the following statements are true:

a. you have the full and unfettered legal capacity to enter this Agreement;

b. you will comply with the terms of the Agreement in full; and

c. all information provided to us by you under this Agreement is true, accurate and complete.

d. If you are a Consumer, we warrant to provide the Services with due care and skill and in accordance with any Consumer Guarantees under the “Australian Consumer Law”, being Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”).

15.3 If you are not a Consumer:

a. we warrant to provide the Services with due care and skill; and

b. we do not many any warranties or guarantees that the Services will be suitable or fit for any particular purpose, including the purpose for which the Services are ordinarily provided.

15.4 We do not guarantee that:

a. the Services will result in increased ranking (organic, paid or otherwise) on any search engines for the Client Website, Social Accounts or other website associated with your business, result in increased traffic to the Client Website, Social Accounts or other website associated with your business, result in the generation of leads for your business, or improve the performance for your business in any way; or

b. we will be able to provide the Services at all times during the Term, as internet services (which the provision of the Services rely on) are inherently subject to technical failures and disruptions from time to time (“Service Disruptions”).

15.5 For the purposes of this Agreement:

 a. “Consumer” means a person who acquires the Services and

 i. The amount payable for the Services under this Agreement does not exceed AUD$40,000;
ii. The Services are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
iii. Is defined as a Consumer under the Australian Consumer Law;

b. “Consumer Guarantees” has the meaning provided in the Australian Consumer Law.

 

  1. Liabilities and Indemnities

16.1 If you are a Consumer, our liability for breaching any term of this Agreement, including in respect of our failure to comply with any Consumer Guarantees, is limited to one or more of the following at our option:

a. for goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired; and

b. for services, the supply of the services again, or the payment of the cost of having services supplied again.

16.2 If you are not a Consumer, to the extent permitted by law:

a. we and Representatives will not be liable, and exclude all liability (whether arising under this Agreement or in tort, negligence, statute or in any other way), for any Loss or Claim of any kind whatsoever directly or indirectly suffered by you in relation to this Agreement;

b. you hereby release us and Representatives from any Claim that you may have against us in connection with this Agreement; and

c. we and Representatives exclude all liability for any direct or indirect Loss that you may suffer as a result of not being able to access the Services in any manner, due to Force Majeure (defined in clause 18 below).

16.3 If you are not a Consumer, and in the event that clause 16.2 is not enforceable for any reason, then our maximum aggregate liability arising from or relating to any Loss or Claim by you in relation to this Agreement will not exceed the Set-Up Fee and/or Management Fee paid by you to us during the previous 12 month period from the date that you notify us in writing of the Loss or Claim.

16.4 You agree to indemnify us from any Loss or Claim of any kind whatsoever that we may suffer by reason of or relating to a breach of clauses 6.2, 8.2, 10, 12, 13,14 and 15.1 of this Agreement by you, and the exercise of our rights under this Agreement in relation to such breaches.

16.5 Notwithstanding anything in this clause 16 or elsewhere in this Agreement, neither party is liable to the other party for any Consequential Loss arising out of or in connection with this Agreement.

16.6 For the purposes of this Agreement:

a. “Loss” means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis);

b. “Claim” means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature;

c. “Consequential Loss” means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business, but specifically excludes legal and other professional costs of the parties; and

d. “Representatives” means our directors, officers, contractors, employees, consultants, partners, advisors or other affiliates.

 

  1. Privacy

17.1 We may collect information that may identify you in the course of providing the Services to you (“Personal Information”). We will keep and maintain Personal Information in accordance with our Privacy Policy which can be found on our Website.

17.2 You must comply with any requirements under the Privacy Act 1988 (Cth) (where legally required) in relation to any materials or information that you disclose to us under this Agreement.

 

  1. Miscellaneous

18.1 This Agreement does not create any employment, partnership, agency or joint venture relationship between you and us.

18.2 This Agreement constitutes the entire agreement between the parties and cannot be altered except in writing signed by both parties.

18.3 A notice, consent, approval, waiver or other communication provided by a party in connection with this Agreement must be in writing. A Notice may be given by either party via your User Account.

18.4 This Agreement will be governed by and construed in accordance with the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and, where applicable, the Federal Court of Australia and Federal Circuit Court of Australia.

18.5 If we are involved in a sale, merger or other restructuring, we may need to assign or licence our rights under this Agreement to a third party, which we will have the right to do so at our sole discretion. We will also have the right to assign or licence our rights under this Agreement in other circumstances with your prior written consent. You may assign your rights under this Agreement to a third party with our prior written consent.

18.6 Neither party shall be liable for delay or inability to perform its obligations under this Agreement for any reason beyond the reasonable control of either party, including (without limitation) Service Disruptions, floods, acts of God, political disturbance, terrorism, strike, lock-out or any other industrial actions, acts of government or regulatory authorities (“Force Majeure”). Any Force Majeure causing the delay or inability for an affected party to fulfil its obligations under this Agreement will not be considered a breach of this Agreement, provided that the affected party promptly informs the other party of the Force Majeure and uses all reasonable effort to overcome the Force Majeure preventing compliance with this Agreement.

18.7 This Agreement is not to be construed to the disadvantage of a party because that party was responsible for the drafting of a particular clause or term.

 18.8 If any provision of this Agreement is determined to be unlawful, void or for any reason unenforceable, then that provision will be deemed to be severed from this Agreement and will not affect the validity and enforceability of any remaining provisions.