Service Terms and Conditions

1.  Acceptance

1.1) These Terms are between Toro Digital, its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity engaging us to perform the Marketing Services (referred to as “you”), each a “Party” and collectively the “Parties”.  These Terms apply to all Marketing Services provided by us to you.

1.2) You have requested our Marketing Services.  You accept these Terms and our Proposal (if relevant) by either:
accepting the Terms online;

  1. signing and returning the Proposal;
  2. confirming by email that you accept the Proposal;
  3. confirming by email that you accept the Proposal;
  4. instructing us to proceed with the Marketing Services; or
  5. paying any Deposit set out in the Proposal, or making part or full payment for the Marketing Services.

1.3) You agree that these Terms form the agreement under which we will supply Marketing Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details in the Proposal or as outlined on our Site. Purchasing Marketing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older.

2.  Marketing Services

2.1) We agree to perform the Marketing Services with due care and skill.

2.2) We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.

2.3) You may engage us to perform the Marketing Services on an ongoing Retainer basis, for one-off project work or to provide other ad-hoc Marketing Services. Based on your requirements, we will supply a Proposal to provide Marketing Services based on your preferred engagement.

2.4) We may provide the Marketing Services to you using our employees, contractors and third party providers, including parties located overseas such as in Manila, Philippines and they are included in these Terms.

2.5) If you engage third parties directly, we are not responsible for the products or services provided by those third parties.

2.6) If you request a Variation, we have discretion as to whether we accept it and whether an adjustment to the Fee may be required. If we are unable to accommodate the Variation, we may request that we be paid for Marketing Services performed to date and terminate these Terms. If we agree to perform a Variation, we will agree the Variation Fee and invoice you accordingly.

3.  Reports

3.1) We may provide you with reports outlining progress with the Marketing Services, performance, rankings and other relevant information and details.

4.  Fees, Invoicing and Payment

4.1) You agree to pay us the Fees, using the Payment Method, as set out in the Proposal or as set out on our Site, including any Deposit required.  All amounts are stated in Australian dollars.

4.2) The Fees and Marketing Services can be varied by written agreement between us, including by email.

4.3) You agree to pay our invoices by the payment date set out on the invoice. If an invoice is unpaid after the payment date, we may cease to provide the Marketing Services to you until we receive payment.

4.4) We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.

4.5) If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.

4.6) We reserve the right to report bad debts to independent credit data agencies.

4.7) If the Proposal states that the Fees are an estimate only, you acknowledge that the final Fees may be more or less than the estimated amounts. We will endeavour to inform you of any material variation as it becomes apparent.

4.8) Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion, the changes will apply to you for Marketing Services provided to you after the date of the change and in any event no earlier than the date that the amended or new Terms are provided to you, or if you enter into a new Proposal, whichever is earlier. After a pricing change, you have the choice to continue using our Marketing Services or to cease using our Marketing Services without penalty.

5. Your Obligations and Warranties

5.1) You warrant that you will not employ, canvass, solicit, entice, induce or attempt to employ any employee or contractor that was employed by or contracted to us during the time that we provided Marketing Services to you or during the 12 month period prior to that time.

5.2) You warrant that throughout the term of these Terms that:

  1. there are no legal restrictions preventing you from agreeing to these Terms, and you have all necessary permissions, consents and rights to enable us to perform the Marketing Services for the duration of the term;
  2. you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Marketing Services, including access details such as logins, usernames and passwords and database access details as requested by us from time to time, and comply with these requests in a timely manner;
  3. the information you provide to us is true, correct and complete;
  4. you will not infringe any third party rights in working with us and receiving the Marketing Services;
  5. you will inform us if you have reasonable concerns relating to our provision of Marketing Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
  6. you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Marketing Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
  7. if applicable, you hold a valid ABN which has been advised to us; and
  8. if applicable, you are registered for GST purposes.

6.  Our Intellectual Property

6.1) The Materials contain material which is owned by or licensed to us and is protected by Australian and international laws.  We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.

6.2) You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.

6.3) Your use of our Materials does not grant you a licence, or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.

6.4) You must not breach our Intellectual Property rights by, including but not limited to:

  1. a. altering or modifying any of the Materials;
  2. b. creating derivative works from the Materials; or
  3. c. using our Materials for commercial purposes such as on-sale to third parties.

6.5) This clause will survive the termination of these Terms.

7.  Your Intellectual Property and Moral Rights

7.1) You agree to provide information including any Intellectual Property to us to enable us to provide the Marketing Services. You:

  1. warrant that you have all necessary rights to provide the Intellectual Property to us;
  2. grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Marketing Services to you; and
  3. consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.

7.2) If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:

  1. irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Marketing Services to you;
  2. irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Marketing Services to you without any attribution of authorship;
  3. agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
  4. agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.

7.3) This clause will survive the termination of these Terms.

8. Confidential Information and Conflicts

8.1) We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose. Our treatment of conflicts is set out in our Conflicts Policy. We will provide you with a copy of this policy on request.

8.2) You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you, to provide better quality services to you and not for any other purpose.

8.3) These obligations do not apply to Confidential Information that:

  1. is authorised to be disclosed;
  2. is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
  3. is received from a third party, except where there has been a breach of confidence; or
  4. must be disclosed by law or by a regulatory authority including under subpoena.

8.4) This clause will survive the termination of these Terms.

9. Feedback and Dispute Resolution

9.1) Your feedback is important to us. We seek to resolve your concerns quickly and effectively.  If you have any feedback or questions about the Marketing Services, please contact us.

9.2) If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

  1. The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
  2. If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator.  The mediator will decide the time and place for mediation.  The Parties must attend the mediation in good faith, to seek to resolve the dispute.

9.3) Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

10. Term and Termination

10.1) This Agreement will begin on the Commencement Date and continue until the End Date, or the date on which these Terms are terminated in accordance with this clause, if earlier.

10.2) Either Party may terminate these Terms without cause by providing the other Party with 30 days’ notice in writing.

10.3) Either Party may terminate these Terms if there has been a material breach of these Terms, subject to following the dispute resolution procedure.

10.4) We may terminate these Terms immediately, at our sole discretion, if:

  1. you commit a non-remediable breach of these Terms;
  2. you commit a remediable breach of these Terms and do not remedy the breach within 10 days after receiving notice of the breach;
  3. we consider that a request for the Marketing Services is inappropriate, improper or unlawful;
  4. you fail to provide us with clear or timely instructions to enable us to provide the Marketing Services;
  5. we consider that our working relationship has broken down including a loss of confidence and trust;
  6. for any other reason outside our control which has the effect of compromising our ability to perform the Marketing Services within the required timeframe; or
  7. an invoice is overdue and you fail to pay an invoice by the due date.

10.5) On termination of these Terms you agree that any Deposit or payments made are not refundable to you, and you are to pay for all Marketing Services provided prior to termination, including any Marketing Services which have been performed and have not yet been invoiced to you.

10.6) On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and/or Intellectual Property.

10.7) On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and/or Intellectual Property.

10.8) On completion of the Marketing Services, we will retain your documents (including copies) as required by law or regulatory requirements.  Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.

10.9) The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

11. Consumer Law, Limitation of Liability and Disclaimers

11.1) We guarantee that the Marketing Services we supply to you are rendered with due care and skill, fit for the purpose that we advertise, or that you have told us you are acquiring the Marketing Services for, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time.

11.2) Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Marketing Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

11.3) Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Marketing Services is governed solely by the ACL and these Terms.  We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

11.4) Delay: Where the provision of Marketing Services depends on your information or response, we have no liability for a failure to perform the Marketing Services in the period set out in the Proposal where it is affected by your delay in response, or supply of incomplete or incorrect information.

11.5) Referral: We may provide you with contact details of third party specialists.  This is not a recommendation by us for you to seek their advice or to use their services.  We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.

11.6) Warranties: Except for your Statutory Rights, we exclude all express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind, either express or implied.

11.7) Availability: To the extent permitted by law, we exclude all liability for:

  1. the Marketing Services being unavailable; and
  2. any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Marketing Services or the late supply of Marketing Services, even if we were expressly advised of the likelihood of such loss or damage.

11.8) Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Marketing Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Marketing Services to you, or, at our option, us refunding to you the amount you have paid us for the Marketing Services to which your claim relates. Our total liability to you for all damages in connection with the Marketing Services will not exceed the price paid by you under these Terms for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.

11.9) This clause will survive the termination of these Terms.

12. Indemnity

12.1) You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

  1. any information provided by you that is not accurate, up to date or complete or is misleading or a misrepresentation;
  2. your breach of these Terms;
  3. any misuse of the Marketing Services by you, your employees, contractors or agents; and
  4. your breach of any law or third party rights.

12.2) You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Marketing Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

12.3) This clause will survive the termination of these Terms.

13. General

13.1) Good faith: The Parties must at all times act toward each other with good faith.

13.2) Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

13.3) Publicity: You consent to us stating that we provided Marketing Services to you.

13.4) Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

13.5) GST: If and when applicable, GST payable on the Fee for the Marketing Services will be set out on our invoices.  You agree to pay the GST amount at the same time as you pay the Fee.

13.6) Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.

13.7) Assignment: These Terms are personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

13.8) Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

13.9) Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

13.10) Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

13.11) Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.

13.12) Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.

14. Definitions

14.1) Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia.

14.2) Commencement Date is set out in the Proposal.

14.3) Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Agreement or otherwise.

14.4) Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, know how, financial, accounting, marketing and technical information, customer lists, database information, details of paid digital marketing strategies including Google Adwords budget and spend, market segmentation strategy and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as “confidential”.

14.5) Deposit is set out in the Proposal, if relevant.

14.6) End Date is set out in the Proposal.

14.7) Fees are set out in the Proposal or on the Site.

14.8) GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

14.9) Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any Confidential Information.

14.10) Marketing Services means the marketing services we provide, including but not limited to website design and development, branding and visual identity, SEO, PPC and copywriting.

14.11) Materials means work and materials that we provide to you in carrying out the Marketing Services.

14.12) Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).

14.13) Payment Method is set out in the Proposal or on our Site.

14.14) Proposal means the Proposal to which these Terms are attached.

14.15) Retainer is set out in the Proposal.

14.16) Site means our website at www.torodigital.com.au

14.17) Terms means these terms and conditions.

14.18) Variation means providing additional Marketing Services to the Marketing Services you originally engaged us for, as outlined on the Site or in our Proposal, or upgrading to a different package or any other changes to the Proposal or scope.

14.19) Variation Fee means the additional cost for a Variation.

Unless otherwise defined herein or the context otherwise requires, capitalised terms used in these Terms will have the meanings given to them in the Proposal.

Notices and Contact:

Online Independent Brands Pty. Ltd. ACN 164 797 997 as trustee for the Evans Family Trust ABN 45 363 256 218 trading as Toro Digital

Suite 201, Level 2, 175b Stephen Street
Yarraville VIC 3013

Last update: 5 June 2017

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