Terms and Conditions
TERMS AND CONDITIONS FOR THE SUPPLY OF MARKETING SERVICES BY PURPLE ADVERTISING ACN 56665685665
DEFINITIONS AND INTERPRETATION
- ‘Business Day’ means a day (other than a Saturday, Sunday, or public holiday) when banks in Australia are open for business.
- ‘Contract’ means the contract between the Client and Purple Advertising for the supply of Services governed by these Terms and the Order.
- ‘Client’ means the individual or business entity who purchases Services from Purple Advertising and whose details are set out in the Order.
- ‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of suppliers or subcontractors.
- ‘Group Company’ means a company which is a subsidiary or holding company of Purple Advertising, as defined in section 50AAA of the Corporations Act 2001 (Cth)
- ‘Company’ means Purple Advertising, a company incorporated in Australia whose registered office is at , trading as Purple Advertising.
- ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- ‘Order’ means the order placed by the Client through counter-signing Purple Advertising’s Quotation form.
- Order Form’ means a Quotation form counter-signed by the Client, which together with these terms and conditions shall form a binding contract
- ‘Quotation’ means the written quotation prepared by Purple Advertising, which contains its proposals for providing Services to the Clients.
- ‘Services’ means the services Purple Advertising will provide to the Client as specified in the Order.
- ‘Specification’ means the description or specification of the Services provided in the Order.
- ‘Terms’ means these terms and conditions as updated from time to time by Purple Advertising.
- ‘GST’ means goods and services tax chargeable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any similar additional tax.
- ‘White Label Work’ means Services provided by Purple Advertising to a Client who rebrands these services as their own for the benefit of their client.
TERMS AND CONDITIONS
2.1. These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate or which are implied by trade, custom, practice, or course of dealing.
2.2. These Terms and the Order may only be varied by express written agreement between the Company and the Client.
THE CONTRACT
3.1. The Order constitutes an offer by the Client to purchase the Services per these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.3. The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, per these Terms.
3.4. The Client acknowledges that it has not relied on any statement, promise, or representation made or given by or on behalf of the Company, which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogs or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
3.5. A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for 14 Business Days from its date of issue.
3.6. For any White Label Work, the Client understands and agrees that the Company has no contractual relationship and therefore no liability concerning the ultimate client with whom the Client agrees to perform the White Label Work.
COMPANY OBLIGATIONS AND WARRANTIES
4.1. The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
4.2. The Company shall use all reasonable endeavors to meet any performance dates specified in the Order, but any such dates shall be estimates only, and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in the delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
4.3. The Company shall have the right to make any changes to the Services, which are necessary to comply with any applicable law.
4.4. The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services, provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
CLIENT’S OBLIGATIONS AND INDEMNITIES
5.1. The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order per any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and/or approve materials provided under the Services, including (without limitation) advertising copy, search terms, and graphic material submitted by the Company. Also, the Client shall be obliged as quickly as possible and
5.3. The Client must promptly notify the Company of any changes in domain names, websites, technical configurations, or any other significant information about the technical infrastructure that might affect the delivery of Services by the Company.
5.4. Should the Client not perform required actions or supply necessary materials as stipulated in this clause 5 within any agreed timeframe (and in any event within 15 Business Days from the date requested by the Company), the Company is entitled to bill for the Services it has provided and for the remaining Services outlined in the Order, regardless of whether those Services have been delivered.
5.5. The Client agrees to indemnify and keep indemnified the Company against all liabilities, costs, and expenses whatsoever incurred by the Company due to any third-party claims or proceedings against the Company for infringement of Intellectual Property Rights or other proprietary rights, breach of confidentiality or contract, or defamation, arising from the provision of Services according to the Order, Specification, or the content of the Client’s advertisements or web pages.
5.6. The Client commits to abide by all relevant regulations, codes of practice, and laws concerning its use of the Services, including but not limited to its obligations under the Privacy Act 1988, the Australian Competition and Consumer Act 2010, and any relevant data protection and e-commerce regulations. The Client agrees to indemnify and keep the Company indemnified against any costs, claims, or proceedings brought against the Company by any third party in connection with any breach of these obligations by the Client
5.7. Unless otherwise stated, the Client is solely responsible for implementing the optimization changes recommended by the Company. Where the Company notifies otherwise, for modifications to existing optimizations, the Client must provide the Company with access to the site’s FTP or content management system credentials to facilitate the addition of keywords
5.8. The Company requires advance notice of any changes to the Client’s website(s) that might affect the services provided by the Company. The Company cannot be held liable for any impact on search engine placements resulting from alterations made by the Client or a third-party to the Client’s site(s).
5.9. The Company advises that the addition of regular, fresh content to the website can improve the stability of search engine rankings. The Client acknowledges that regular, unique content is crucial for a website’s success and that failure to add such content will diminish the effectiveness of SEO services.
5.10. For all White Label Work, the Client shall indemnify the Company against all liabilities, costs, expenses, damages, and losses suffered or incurred by the Company arising from the contract between the Client and their client for the White Label Work.
PRICES
6.1. Unless expressly stated otherwise, all prices are in Australian Dollars and exclude Goods and Services Tax (GST) and other duties. If duties are introduced or changed after the conclusion of an Order, the Company is entitled to adjust the agreed prices accordingly.
6.2. The Client acknowledges that certain Services may involve licensing of third-party Intellectual Property Rights, and the Client may need to enter into a license directly with such third party. All prices exclude costs for acquiring Intellectual Property Rights for materials to be included in marketing materials, including, where relevant, pictures and licenses from third-party owners and licensors.
6.3. The price stated in the Order is based on an estimate of the number of hours required to provide the Services. This is an estimate only, and Services will be billed according to the actual number of hours worked at the rate outlined in the Order or Quotation. If the rate is not specified, the Client will be charged at the hourly rate from the Company’s current price list. The Company is obligated to regularly update these estimates and budgets, especially following changes to an Order.
6.4. While the Company strives to ensure accuracy in its estimates, it reserves the right to amend any estimate in case of an error or omission.
PAYMENT
[Continuation with the remaining clauses would follow the pattern of adapting to Australian legal standards, mentioning relevant Australian laws, financial terms in Australian Dollars, and incorporating Australian business practices.]
7.2. The Client shall pay each invoice submitted by the Company within 14 Business Days of the date of the invoice and in cleared funds in accordance with clause 7.3 below. The invoice number shall be stated on all payments, and payments by EFT (Electronic Funds Transfer), BPAY, Cheque, and Direct Bank Transfer are accepted.
7.3. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off, or counterclaim against the Company to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
7.4. In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Australian Securities and Investments Commission (ASIC) or at the rate of 2 percent over the base rate of the Reserve Bank of Australia (whichever is higher). At the Company’s discretion, a fee of A$15 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. The Company shall be entitled to submit such reminders every week once the fees have become overdue. The Company expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums.
7.5. Late payment shall be considered as constituting a material breach of the Contract entitling the Company (at its discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach.
7.6. If the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, the Company shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered according to the Order. The Company shall be entitled to payment based on the Company’s price list applicable from time to time for any additional work required because the Client fails to assist or delays in assisting.
7.7. If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Order, the Company reserves the right to charge additional monies to prioritize such projects ahead of pre-planned work.
DELAYS AND COMPLAINTS
8.1. If the Client proves that the Services are delayed or not according to the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. If the Services continue to be not according to the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Order per clause 13.2 a), provided that the breach is material.
8.2. Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
8.3. The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client, and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
8.4. The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
8.5. The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract, and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 9 below.
LIABILITY
9.1. Except as expressly stated in this Clause 9, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
- Any indirect or consequential loss arising under or in relation to the Contract, even though the Company was aware of the circumstances in which such loss could arise;
- Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
- Loss of data; and
Fraudulent clicks on any of the Client’s accounts managed by the Company.
9.3. To the extent such liability is not excluded by sub-clauses 9.1, 9.2, and clause 10 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise, will not, in any event, exceed the total sum invoiced for the Services.
OTHER LIMITATIONS OF LIABILITY
10.1. The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines, or websites on which a service is dependent, or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately per these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
10.2. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup, etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client per these Terms or based on the Company’s price list applicable from time to time at the Company’s discretion.
10.3. The Company shall use all reasonable endeavors to deliver Services relating to search engine optimization, links, advertisements, banners, pay per click, and google analytics per the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offer or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. Also, the Company shall not be liable for other changes or discontinuation of search engines.
10.4. The Company shall not be liable for Services relating to search engine optimization, link building, advertisements, banners, or sponsorships leading to a minimum number of views, position, or frequency in searches on relevant words or otherwise. Also, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases, or the like.
10.5. The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
10.6. If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
INTELLECTUAL PROPERTY RIGHTS
11.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image, or representation (“Materials”) to the Company for incorporation into the Services, and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable license to the Company to use such Materials to provide the Services for the duration of the Contract.
11.2. The Client shall be responsible for ensuring that the contents of Materials that the Client has contributed or approved are not in contravention of legislation, decency, marketing rules, or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. Also, the Company shall be entitled to cancel the Order.
11.3. The Client shall indemnify the Company against all damages, losses, and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules, or any action that any such Materials infringe any Intellectual Property Rights of a third party.
11.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
11.5. Unless expressly stated otherwise in these Terms or an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use to execute the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
11.6. The Intellectual Property Rights as mentioned in Clause 11.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
11.7. If the Company makes software, scripts, ASP services, etc. available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.
11.8. The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo, etc. as a reference on the Company’s website, other marketing materials, or types of media whilst they are a Client of the Company and for 18 months after the Contract terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.
CONFIDENTIALITY AND PERSONAL DATA
12.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents, or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents, or subcontractors as need to know it to discharge the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents, or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
12.2. During the term of the Contract and for a period ending 5 years from the date of its conclusion, the Company shall take the same care as the Company uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
12.3. The obligation in Clause 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
12.4. During the term of the Contract and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organization that do not need to know or to any third party any information and non-Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
12.5. Each party agrees to comply with its respective obligations under the Privacy Act 1988.
12.6. The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of the Privacy
EXCLUSIVE LEADS AND VERIFIED PHONE NUMBERS
18.1. The Company acknowledges the significance of providing the Client with exclusive leads to enhance the effectiveness of the Services. Exclusive leads refer to those generated solely for the benefit of the Client, minimizing the risk of competition for the same potential customer within the Company’s client base.
18.2. The Company commits to using reasonable efforts to ensure that leads provided to the Client are exclusive, tailored to the Client’s business objectives, and aligned with the agreed-upon scope of Services.
18.3. In cases where phone numbers are utilized as part of the lead generation process, the Company undertakes to employ best practices to verify the authenticity and accuracy of such phone numbers. Verified phone numbers contribute to the overall quality of leads, ensuring that the Client can effectively engage with potential customers.
18.4. The Client acknowledges that while the Company strives to provide exclusive leads and verified phone numbers, external factors beyond the Company’s control may impact the exclusivity and verification process. The Company shall promptly inform the Client of any such factors that may affect the quality of leads or the verification of phone numbers.
18.5. Any concerns or disputes regarding the exclusivity of leads or the accuracy of verified phone numbers should be promptly communicated by the Client to the Company. The parties agree to collaborate in good faith to address and resolve such concerns, with the aim of maintaining the quality and effectiveness of the Services.
18.6. The Company reserves the right to adjust its lead generation and phone number verification processes to adapt to changes in industry standards, technology, or other relevant factors. The Client will be duly informed of any material changes that may impact the exclusivity of leads or the verification of phone numbers.
18.7. This section on exclusive leads and verified phone numbers forms an integral part of the overall Terms and Conditions, and any breach or dispute related to this section shall be subject to the resolution mechanisms outlined in these Terms.
RETURN POLICY FOR LEADS PURCHASED
19.1. The Company understands the importance of lead quality in the effectiveness of the Services. To ensure transparency and satisfaction, a return policy for leads purchased is hereby outlined.
19.2. In the event that a lead acquired by the Client does not meet the mutually agreed-upon criteria, the Client may request a return or replacement of the lead within [2] days from the date of receipt.
19.3. The criteria for lead return may include, but are not limited to, the lead not meeting specified demographic details, incorrect contact information, or failure to express genuine interest in the Client’s products or services.
19.4. The Client agrees to promptly notify the Company in writing of any lead-related concerns or discrepancies. The written notice should include specific details outlining the reasons for the requested return and any supporting documentation.
19.5. The Company will review the Client’s request for lead return and, if deemed valid, will either replace the lead with a suitable alternative or provide a credit or refund equivalent to the purchase price of the lead.
19.6. The return policy is applicable solely to leads purchased through the Company’s Services and does not extend to leads obtained through other means or sources.
19.7. The Client acknowledges that the success of lead generation is influenced by various external factors, and the Company cannot guarantee the conversion or business outcome associated with each lead.