The following are terms and conditions that apply to all services provided by REAL CLICKS PTY LTD (ABN 31 146 174 567) ('Real Clicks','us' or 'we') to you ('you'. By registering online, completing an order form or otherwise engaging Real Clicks to provide services to you, you are entering into a legal relationship which is governed by these terms and conditions
These are the current Terms and Conditions that all Real Clicks client
agreement operate under. These Terms and Conditions are subject to change
and review without notification.
Our Services are very diverse, so sometimes additional terms or product requirements may apply. Additional terms will be available with the relevant Services, and those additional terms become part of
1.1 We will provide you with the Services for the term and in consideration for the fees specified in the relevant Services Proposal.
1.2 We will provide the Services with due care and skill having regard to prevailing standards in the industry and otherwise in accordance with the Services Proposal.
1.3 You must provide us with administrator access rights to the Website and any other systems required and pay us all Fees specified in the Services Proposal in accordance with clause 4 below.
1.4 You agree to make available to us, for our use in performing the services required by this Agreement, such items of hardware and software as are reasonably necessary for such purpose. You agrees to make available any access to services, hosting, ftp or other resources deemed necessary by us to fulfil our obligations under this Agreement
1.5 You acknowledge that with respect to Services, we accept no responsibility for policies of third-party search engines, directories or other Web Sites (“Third-party resources”) that we may submit to with respect to the classification or type of content it accepts whether now or in the future. The Website or its content may be excluded or banned from any Third-party resource at any time. You agrees not to hold us responsible for any liability or actions taken by Third-party resources under this Agreement.
2. DELIVERY DATES AND MILESTONES
2.1 You acknowledges that although we will use reasonable diligence in the provision of the Services and endeavour to deliver to you all deliverables and milestones in accordance with the Services Proposal, all delivery deadlines and the other payment milestones specified in the Services Proposal are estimates only.
2.2 We will retain all documents, source code, keyword lists and other assets employed or created for you during the Term. You will only receive the output formats of Company's work where specified in the Services Proposal.
2.3 The output is to be used only within the scope of the project as outlined in the Services Proposal. You shall retain all of its intellectual property rights in any text, images or other components you own and deliver to us for use in the Services provided.
You warrant that the Website is not hosted with free web hosting providers. In cases where there is either concern that the current hosting IP address may be part of a 'bad neighbourhood' or for reasons of optimisation, then we may request you change your hosting provider.
4. FEES AND SCOPE OF ENGAGEMENT
4.1 You must pay us the Fees specified in the relevant Services Proposal.
4.2 If the Service Proposal or other booking form agreed to by you specifies a minimum engagement period, you will be invoiced and must pay the Fees for that minimum period.
4.3 In the event that you request that we provide you with any additional services (“Additional Services”), we will provide you with a separate proposal for such Additional Services. The Fees for these additional services will be payable as specified by us.
4.4 We reserve the right to review our Fee structure from time to time.
5. PAYMENT TERMS/WORKFLOW
5.1 Unless stated otherwise in the Services Proposal you must pay the first monthly payment, without set-off or deduction either via EFT, Cheque or Cash prior to the commencement date of the Campaign. Thereafter you will be invoiced calendar monthly.
5.2 Payment of Google billing fees must be made every 30 days or when you reach your billing threshold, whichever comes first. The Fees must be paid by way direct debit from Google and invoiced direct from Google to the business. These Fees will be for clicks received in a recent time period. All monies owed to Google or any direct third party fees are and remain your sole responsibility.
5.3 Payment of the campaign management fee must be made in advance on the first day of every calendar month, for the up-coming calendar month
5.4 The first campaign management fee will be debited prior to any work starting on the Google account. Should you wish to start a campaign mid-month, a pro-rata amount will be debited for the remainder of that month.
5.5 In the event of a failed direct debit deduction, you must pay usa fee of $30.00 which is payable immediately upon demand.
5.6 Interest will be charged on overdue accounts at a rate of 20% per annum, from the date of the Payment due to the date of payment.
5.7 Any expenses, costs or disbursements incurred by us in recovering any outstanding Fees including debt collection agency fees and solicitors costs on a full indemnity basis will be payable by you.
5.8 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided are exclusive of GST.
6.1 The campaign cannot be cancelled by you during the agreed campaign period. Failure by you to make payment of the campaign management fee will result in the campaign being suspended by us until payment is made.
6.2 Should payment not be made within 30 days of a due date, you will be in breach of this agreement and a final invoice will be issued for all outstanding Fees plus the remaining Campaign management fee for the remainder of the Campaign Period.
6.3 Should the services be provided by us beyond the agreed campaign period, you may terminate this agreement at any time on the giving of 30 days written notice.
6.4 Either party may terminate this Agreement upon written notice to the other party if the other party commits any breach of any provision of this Agreement and fails to remedy such breach within 14 days of receipt of a notice specifying:
(a) The exact nature of the breach committed by the defaulting party; and
(b) What is required by the defaulting party to remedy the breach?
6.5 We may by written notice to You immediately terminate this Agreement upon:
(a) The making or filing of any application to wind up You under any law or government regulation relating to bankruptcy or insolvency;
(b) The appointment of a receiver, agent or manager for all or substantially all of the property of You;
(c) The making by You of any assignment, arrangement or composition whether formal or informal for the benefit of Your creditors;
(d) The institution by You of any proceedings for the liquidation or winding up of its business;
(e) The failure to pay the Fees within 2 business days of the due date for payment; or
(f) In any event and without the need for default by you, upon giving You14 days prior notice.
6.6 Upon termination:
(a) Each party must return to the other any confidential information then in its possession; and
(b) You must within 14 days of demand pay to us any monies outstanding up to and including the date of termination.
(c) You must pay to us immediately upon demand as a liquidated debt any costs (including legal costs on a solicitor/client basis) incurred by us as a result of a breach by you of this Agreement.
6.7 Unless the Agreement is terminated in accordance with this clause, this Agreement will automatically renew upon the conclusion of the Term for a further period equal to the Term.
7.1 We acknowledges that all of the information provided by you under this Agreement is confidential and is being provided to us in order to supply the Services.
7.2 We under take that We will not, without Your prior consent, disclose any of the confidential information to any other person, nor will we use or permit the use of any such information by any officer, employee or agent or any other person under our control for any purpose other than as required to provide the Services.
8.1 We will manage any personal information provided by you in accordance with the Australian Privacy Principles.
8.2 We will only collect the personal information we need to provide the Services.
8.3 We will take reasonable steps to protect your personal information from misuse, interference and loss, and from unauthorised access, modification or disclosure.
8.4 You acknowledge that we may engage third parties to provide all or part of the Services under this Agreement and this may involve the transmittal of your personal information to such third parties. We will only transmit your personal information on the basis that the third party treat it in accordance with the Australian Privacy Principles.
8.5 We may utilise overseas based employees, contractors or service providers from time to time and this may involve the transmittal of your personal information overseas. You acknowledge that you are aware that the overseas recipient of your personal information may not be bound by laws which provide the same level of protection for personal information provided by the Australian Privacy Principles and that we will not be responsible for any breach of privacy by the recipient or class of recipients.
These terms and conditions may be amended by us from time to time. Any amendment will become binding on you on the first day of the month following the month during which the relevant amendment was published on our website.
10. WARRANTY AND REPRESENTATION
In the event that You are a Company, Partnership, or Trust the submission of a Booking Form online, by email, in person or via facsimile by you is the entering into a binding contract by such Company, partnership or Trust and you hereby warrant and represent that any person so acting has been duly authorised to act on behalf of You and to contract with Company.
11. LIABILITY AND INDEMNITY
11.1 You hold us harmless against any claim and any damages suffered by you arising from or in connection with any Services provided by us or any Service We fail to provide in accordance with these terms.
11.2 You shall not have any claim against Us for any losses, damages, costs or expenses resulting from the provision or failure to provide the Services, whether such failure results from:
(a) Technical failure (including but not limited to errors, malfunctions, interruptions or delays in the provision of the Services);
(b) Force majeure; or
(c) Any other cause.
12. LIMITED WARRANTY AND LIMITATIONS ON DAMAGES
12.1 Except as provided by these terms, Real Clicks, its directors, employees, agents and/or suppliers, shall not be liable for any loss or damage whatsoever (including, without limitation, incidental, special and/or consequential damages or lost profits) resulting from:
(a) any use or access of, or any inability to use or access, the Website, any third party link or any content contained on the Website or any third party link;
(b) any unauthorised access to or alterations of Your transmissions or data; or
(c) any statements or conduct of any user of the Website, including any information and/or advice and any defamatory statements or offensive conduct.
12.2 To the fullest extent permitted by law our liability for breach of any these terms or otherwise in relation to the provision of Services is limited to the supply of the Services again; or the payment of the cost of having Services supplied again; and on no account shall we be liable for any indirect or consequential loss including but not limited to loss of profits.
13.1 Entire Agreement
This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
Each of the parties warrant that they have read and understood the terms of this Agreement.
13.3 Governing Law
This Agreement is governed by the laws of New South Wales, Australia. Each of the parties irrevocably submits to the jurisdiction of the courts of New South Wales, Australia.
(a) You acknowledges that we may assign our rights under this Agreement to a third party and that in the event of an assignment you will remain bound by the terms of this Agreement.
(b) You may not assign your rights under this Agreement.
If a clause of this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
A variation of this Agreement must be in writing and signed by the parties.
(a) No right under this agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
(b) A waiver by one party under this clause does not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.
(c) A party does not waive its rights under this Agreement because it grants an extension or forbearance to the other party.
13.8 Relationship of the parties
The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
13.9 Further steps
Each party will do all things and execute all further documents necessary to give full effect to this Agreement.
(a) The terms of this Agreement survive its termination to the extent permitted by law.
(b) This Agreement shall be binding upon the heirs, executors, administrators and successors in title of the parties.
All payments due under this Agreement shall be paid in Australian dollars in Australia.
13.12 Dispute resolution
(a) If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
(b) Any party claiming that a dispute exists must notify the other party to the dispute (the ‘Second Party’) in writing of the nature of the dispute.
(c) If the dispute is not resolved by agreement within five working days of the Second Party receiving the notice referred to in paragraph (2) above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator shall be borne equally between the disputing parties. The chosen mediator shall determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
(d) If the parties have not mediated a resolution of the dispute within 10 working days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.
(a) Any provision of, or the application of any provision of, this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
14. DEFINITIONS AND INTERPRETATION
In this Agreement unless the context otherwise indicates:
(a) Australian Privacy Principles means the Australian Privacy Principles set out in Schedule 1 of the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012).
(b) Services means the Services specified in the relevant Services Proposal.
(c) Services Proposal means a document of that name agreed to between the parties from time to time during the term of this Agreement.
(d) Specifications means any Specifications specified in the relevant Services Proposal.
(e) Term means the period of one (1) year or the term of a Services Proposal (whichever expires later).
(f) Website means the Website specified by you.
In this Agreement unless the context otherwise indicates:
(a) headings are for convenience only and do not affect the interpretation of this agreement;
(b) reference to the singular includes the plural and vice versa;
(c) reference to any gender includes the other genders;
(d) reference to a person includes a corporation and vice versa;
(e) reference to a party includes that party's executors, administrators, successors and permitted assigns;
(f) every obligation entered into by two or more parties binds them jointly and each of them severally;
(g) a reference to a schedule is to a schedule to this agreement; a reference to a part, clause or other subclause is a reference to a part, clause or other subclause in this agreement;
(h) any annexures and appendices form part of this agreement;
(i) any document referred to in this agreement will mean that document as well as any other document in substitution for that document which has been approved in writing by the parties;
(j) where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
(k) the words “includes” and “including” or words of similar effect are not words of limitation; and
(l) a reference to a statute, regulation or other law includes all regulations and instruments made under such law and all consolidations, amendments, re-enactments or replacements of it.