These Advertising Terms and Conditions (“Terms & Conditions”) shall be incorporated by reference into and made a part of any order (the “Order”) submitted to Web Freaks (“Company”) by the Business set forth in the Order. All Orders are subject to acceptance by Company. Company reserves the right to refuse or cancel any Order, without cause or penalty, at any time. The Terms & Conditions, which are subject to change at any time, with or without notice, and the Order shall be collectively known as the “Advertising Agreement” or “Agreement.”
- In connection with each Order, Company will establish a social media campaign for Business in respect of the services ordered by the Business under the Order (the “Campaign”) for the amounts (“Campaign Fee”) and duration set forth in the Order, subject to adjustment as set forth herein. Business agrees and understands that Company may take up to 10 business days to review the Campaign and may require further input from Business. Company shall have no liability, and Business shall not be entitled to terminate this Agreement other than as set forth in Section 4.
- Company shall manage the Campaign for the number of months (or Periods, as defined below) specified in the Order. “Period” shall refer to the amount of time set forth in the Order.
- The term of this Advertising Agreement commences on the date that the Order is accepted by Company and terminates when the set period of time has elapsed and all amounts set forth on the Order due to Company have been paid.
Business agrees to the pay the following fees, in the amounts set forth in the Order, in accordance with Section 3:
- Campaign Fees. “Campaign Fees” or “Campaign Management Fees” (“Campaign Fees”) shall refer to the periodic amount charged by Company for managing Campaigns. These Campaign Fees are set forth in the Order. Company reserves the right to change the amount it charges for its Campaign Fees at any time, with any changes to be applicable to upon execution of a new Order.
- Company makes no representations or guarantees with respect to usage or visit statistics and does not enter into this Agreement in reliance on such statistics. Business acknowledges that any such statistics provided by Company shall be conclusive and binding on Business for all purposes of this Agreement and not subject to review or challenge by Business for any reason.
- All fees are subject to change upon notice to Business.
3. Payment Terms
- Payment for Campaign Fees shall be made at the time the Order is accepted by Company.
- In the event of any failure by Business to make payment (including any denial of the payment methods set forth in Section 3(a)), Business will be responsible for all reasonable expenses (including solicitors costs and disbursements on a full indemnity basis) incurred by Company in collecting such amounts. All payments due hereunder are in Australian dollars and are exclusive of any GST, sales, use or similar applicable taxes. Business shall promptly pay all such taxes and any associated interest and penalties.
4. Cancellation and Refunds
Once an Order has been accepted by Company, Business will be responsible for full payment of all fees related to the Campaign. If Business cancels the Campaign for any reason, Business must give Company 30 days notice in writing and all pre-paid fees shall be forfeited. Business acknowledges that it cannot cancel an order within the designated contract period unless it pays out the remaining contract in full. Company reserves the right to cease providing the Web Freaks to any Business at any time. Company may also terminate Business’s account and Business’s use of the Web Freaks at any time, for any reason, including, for, among other reasons, serious or numerous complaints from others. If Business violates any of these Web Freaks Terms, Business’s permission to use the Web Freaks automatically terminates. Under no circumstances will Web Freaks have any obligation to refund any amounts paid by Business for any of the Services.
5. Advertising Information
- Business shall provide Company with true, accurate and current information for all campaigns placed with Company. For clarity, it is not the Company’s responsibility to ensure that the Advertising content provided by the Business is true and accurate and complies with applicable laws. Business hereby grants to Company and its subcontractors a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute content and any derivative works based thereon created by Company for the purpose of performing its obligations under this Agreement.
- All contents of campaigns are subject to Company’s approval. Company reserves the right to reject or cancel any content, agreement, URL link, at any time, without penalty, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability). This right to refuse content does not constitute endorsement of any content that is accepted by Company, nor does it constitute a warranty that Company will continue to run any content once accepted. Company has no obligation to inspect content or to reject content that it inspects for any reason.
- Company reserves the right to modify or delete content consistent with Business’ objectives, at any time, even while a Campaign is active.
- Business agrees that Company, while it will take all reasonable efforts to promote the various products and services that the Business has selected to promote, makes no guarantee financial or otherwise that all such products and services will be advertised, particularly if advertising all such products and services would result in exceeding the Campaign Fee amount in the Order.
- Business may select certain individual words or word phrases (“Keywords”) to be used in the Campaign. Business agrees that Company, while it will take all reasonable efforts to promote these Keywords, makes no guarantee financial or otherwise that all Keywords will be advertised. If Business intentionally or unintentionally includes the names of its competitors or trademarked terms (“Competitor Keywords”), Business does so at its own risk and accepts all liability associated with such action.
- Business may not resell, assign or transfer any of its rights hereunder. Any attempt by Business to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Company. (g) Company makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance that Business can expect from the services provided by the Company under this Agreement.
6. Privacy Obligations
7. Business’s Representations.
Business represents and warrants to Company that Business holds all necessary rights (including the right to use all information, names, trademarks and content it provides or includes) to permit the use by Company for the purposes contemplated under this Agreement including, without limitation, any URLs, websites and content utilized and that the use, reproduction, distribution, transmission or display of the content, any data regarding users, and any material to which users can link, or any products or services made available to users, will not ;
- violate any criminal laws or any rights of any third parties or
- contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law.
8. Business Indemnification
- Business agrees to indemnify, defend and hold Company harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal costs and disbursements arising out of or related to:
- the breach (or alleged breach) of any of representations and warranties or any third party claim arising out of or in connection with use of or access to any material to which users can link, or any products or services made available to users, through the Advertising or to which the Advertising relates;
- any other act, omission or misrepresentation by Business.
- Business agrees to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable legal costs and disbursements, made by any third party due to or arising out of content which the Business submits, posts, transmits or makes available through the online or offline services provided by Company (collectively, the “Service”), or Business’ use of the Service, connection to the Service, violation of this Agreement, or violation of any rights of others. Business agrees to indemnify, defend, and hold harmless Company and its third party affiliates from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including reasonable attorneys’ fees and expenses), arising from or relating to:
- the Business Content and Approved Content submitted, posted, or transmitted through the Web Freaks;
- the breach of these Web Freaks Terms by the Business;
- the breach of the terms and conditions of any Third Party Site by Business or anyone using Business’s account; and
- the violation of any third party intellectual property rights.
Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business, it has been authorized by each such business to act as its agent in all respects relating to the Service and this Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Business agrees on behalf of each such business that such business has been made aware of these Terms and Conditions and shall be bound by all of the terms and conditions of this Agreement. Business and each such business shall be jointly and severally responsible under this Agreement.
Business acknowledges that Company may obtain customers (including the Business) through referrals from third parties and that Company reserves the right to incentivise such third parties.
Company may, without the consent of the Business, subcontract to any party the performance of all or any of the Company’s obligations under this Agreement.
Renewal of any Campaign is subject to acceptance of the then current version of this Agreement and execution of a new Order. Unless waived by Company, in its sole discretion, any renewal shall be subject to any other fees applicable to new Campaigns.
13. Confidentiality and Data
- Subject to the Business being able to disclose the contents or existence of this Agreement to its subcontractors, Business shall not disclose the contents or existence of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Company’s prior written consent. Company shall be permitted to identify Business as a Company client and may use Business’s name in connection with Company’s marketing materials. Subject to the prior approval of each party, Company may elect to issue a joint press release announcing the Business’s marketing partnership with Company, which approval shall not be unreasonably withheld.
- Business acknowledges and agrees that Personal Data and other personal information may be stored by the Company in Australia, the United States of America and other overseas locations for storage purposes.
Company may immediately terminate this Agreement and access to the Service, with or without cause of any type or nature. Except as expressly provided in this Agreement, Company shall not be liable to Business or any third party for any termination of this Agreement or access to the Service. All provisions of this Agreement that by their sense or nature should survive termination of this Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Business shall remain liable for any amount due for Advertising delivered by Company.
15. Limitation of Liability
- In the event that Company fails to publish content in accordance with this Agreement, or in the event of any other failure, technical or otherwise, of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to, at Company’s sole discretion, the issuance of a Campaign Credit not to exceed the total Campaign Media spent.
- BUSINESS EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE FULL EXTENT PERMITTED BY LAW, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM:
- THE USE OR THE INABILITY TO USE THE SERVICE;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
- UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
- STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE OR THIS AGREEMENT. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH ANY CAMPAIGN, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH CAMPAIGN.
- Business agrees that, regardless of any statute or law to the contrary, any legal proceedings relating to a claim or cause of action arising out of or related to use of the Service or this Agreement must be commenced within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
- Without limiting the foregoing, Company shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether Legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of Company. Business acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
- Business acknowledges that no Company personnel are authorized to make any modifications to these Terms and Conditions or to make any estimates that Business may rely on and that Business is not relying upon any such modifications or estimates or any representations, warranties or guarantees other than as expressly stated herein.
- This Agreement and the relationship between Business and Company shall be governed by the laws of the State of Victoria. Any action by either party hereto arising out of or in connection with this Agreement or the Service shall be brought in a court of competent jurisdiction located in the State of Victoria.
- Nothing in this Agreement gives rise to or is intended to give rise to a relationship between the Company and the Business of employee and employer, principal and agent or partnership.
- This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may not be amended, supplemented or modified orally, but only by an agreement in writing signed by each of the parties hereto. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.
- This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. Any such purported transfer, assignment, pledge, or hypothecation (other than by operation of law) shall be void and of no force and effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
- The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provisions to be drafted.
- In the event that Company’s website has any terms that are inconsistent with the provisions of this Agreement, this Agreement shall take precedence; provided, that any such agreements shall otherwise control with respect to any actions or activities outside of the domain of this Agreement.
- For the purposes of this Agreement “GST” means goods and services tax as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia.