Terms and Conditions
Our Commitment to you
i) We respect our CLIENT’s confidentiality (Item 7).
ii) We use open source solutions wherever possible. This means no vendor lock-in and software fees are charged at ‘fair and reasonable rates’ or in most cases, fees are not applicable (Item 12.1).
iii) If the CLIENT determines that the website does not comply with the project components agreed to in this document, YBR Marketing agrees to carry out any necessary and reasonable modifications without extra charge (Item 24).
iv) If the CLIENT is not happy with our service, the CLIENT is free to move their domain name, website and data in its entirety to another service provider (Item 21.1).
Introduction
This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
All services that YBR Marketing may be contracted to produce or provide for [customer name] (referred to as CLIENT) will be subject to the following:
Definitions
As used herein and throughout this Agreement: “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
“Content” means all materials, information,photography, writings, and other creative content.
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
“Deliverables” means the services and work product specified in the Proposal to be delivered by YBR Marketing to the Client, in the form and media specified in the Proposal.
“Services” means all services and the work product to be provided to Client by YBR Marketing as described and otherwise further defined in the
Proposal.
“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
“Open Source Software” means computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, and improve the software.
“Ongoing Management” means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.
“FREE Trial” means for a period of time determined by YBR Marketing, the service or product is available for use either partially or in full at no cost to the CLIENT. N.B. It does not include any setup costs such as social media accounts or software additions if required. Those costs will be the CLIENTS expense, at the prescribed rate, $80/hr.
“Guarantee” means where stated a guarantee will apply to a service or product that will give reasonable security against a stated outcome or faulty software as long as service or products are used as per directed by YBR Marketing.
General Terms
1. Authorisation
The CLIENT authorises YBR Marketing to perform the services outlined in this agreement on the CLIENTS’ behalf, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, and submitting the project to search engines.
2. Agreement Scope and Period
Services supplied, costs and rates are limited to what is specifically set forth in this agreement. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after this period.
3. Costs and Fees
Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before the commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, colour printouts, laminating,
illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses at this stage are subject to GST.
4. Production Schedules
Production schedules will be established and adhered to by both the CLIENT and YBR Marketing. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.
5. Overtime
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 50% markup at an hourly rate. Overtime is defined as between 6.00pm – 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6. Payment
6.1 The CLIENT agrees to pay YBR Marketing in accordance with the terms specified in each proposal/estimate. The CLIENT may be required
to pay 25% of the project cost before commencement of work. Unless otherwise specified, all subsequent balances due are payable upon completion of the project.
6.1a YBR Marketing offers payment plans through MoneyMe Financial Group Pty Ltd ACN 163 691 236, Australian Credit Licence number 442218 of Level 3, 131 Macquarie Street, Sydney NSW 2000 (MoneyMe)
6.2 If the CLIENT fails to pay any invoice, YBR Marketing reserves the right to withdraw the website or service and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be
retained as security until all just claims against the CLIENT are satisfied. YBR Marketing will charge a late payment fee of 5% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.
6.3 In the event of cancellation of the project prior to completion, the CLIENT must pay YBR Marketing a fee for work completed, based on the contract price and the expenses already incurred.
7. Confidentiality
We value your confidentiality. YBR Marketing will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
This obligation of confidence will cease to apply in relation to information that YBR Marketing is required to disclose by any law, or which
becomes part of the public domain other than as the result of a breach by YBR Marketing of its obligations of confidence under this Agreement.
8. Subcontractors
YBR Marketing reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.
9. Promotion
YBR Marketing is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that YBR Marketing reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of YBR Marketing services.
CLIENT agrees to allow YBR Marketing to retain a credit and link from the footer of the website.
10. Copyright
10.1 The CLIENT is responsible for all trademark, service, copyright and patent infringement clearances. The CLIENT is also responsible for
arranging, prior to publication, any necessary legal clearance of materials YBR Marketing uses for this project. The CLIENT indemnifies YBR Marketing against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
11. Project Copyright
11.1 After acceptance of the website, artwork or service and payment of all sums due by the CLIENT, YBR Marketing agrees to assign perpetual and unrestricted copyright to use any materials produced by YBR Marketing as outlined in this agreement to the CLIENT including exclusive usage rights to unique graphics.
11.2 YBR Marketing reserves all rights over working and source files. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.
11.3 YBR Marketing reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.
12. Open Source Software
12.1 YBR Marketing makes extensive use of open source software and components to supply websites and services to the CLIENT. YBR Marketing will not charge additional licencing fees on open source software.
12.2 The CLIENT indemnifies YBR Marketing against any loss or damage arising directly or indirectly from any failure of software supplied to the CLIENT.
12.3 All software and components not developed by YBR Marketing retain the original licence and terms associated with them. YBR Marketing cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.
13. Force Majeure
YBR Marketing shall not be deemed in breach of this Agreement if YBR Marketing is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity of YBR Marketing or any local, state, federal, national or international law, governmental order or regulation or any other event beyond YBR Marketing control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, YBR Marketing shall give notice to the CLIENT of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
14. Limitation of Liability
The services and the work product of YBR Marketing are sold “as is.” In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“YBR Marketing parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement. In no event shall YBR Marketing be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by YBR Marketing even if YBR Marketing has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
15. Termination
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, YBR Marketing
shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within fourteen days of the CLIENT’s written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by YBR Marketing shall own all rights to the work. The CLIENT shall assume responsibility for collection of all legal fees necessitated by default in payment.
16. Domain Names
16.1 All domain names that are registered under YBR marketing are maybe legally owned by the CLIENT. All domain name registrations are subject to availability and registration rules. The CLIENT manages their domain(s) and payment of fees unless the CLIENT requests in writing that YBR Marketing manage the domain name(s) on behalf of the CLIENT. YBR Marketing will invoice the CLIENT when fees are due.
16.2 YBR Marketing uses a third party (referred to as REGISTRAR) to manage our CLIENTS’s domain names. CLIENTS are bound by the REGISTRARS’s “Domain name registration terms” which are found on their websites.
16.3 The CLIENT indemnifies YBR Marketing against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
17. Hosting
17.1 YBR marketing is responsible for the management and support relating to all hosting matters.
17.2 YBR Marketing may charge for costs incurred if hosting issues are caused by misuse of site by CLIENT or their agents. (Also see clause 22. Client Responsibilities)
17.3 YBR Marketing will charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames.
18. Browser Variance
Our websites are optimised for XHTML compliant browsers and adjusted to support Google Chrome. We test using the browsers that are statistically the most commonly used. Layout and aesthetic elements may change or degrade in some browsers.
Website Builds
Websites are tested on
• Latest version of Chrome, safari, firefox (PC)
• Latest version of android and iphone browser
YBR Marketing will test and optimise for additional browsers and versions if requested by the CLIENT before the commencement of the project.
19. Colours
Website visitors use different monitors with different settings. Colours and image quality of the website including graphics and photography will shift between computers and monitors.
20. Testing and Acceptance of the Website
Once the project has, in the opinion of YBR Marketing been completed, YBR Marketing will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to test and review the website. If the CLIENT determines that the website does not comply with the Project Components agreed to in this document, YBR Marketing agrees to carry out any necessary and reasonable modifications without extra charge.
21. Website, Data and Security
21.1 Upon the end of this agreement and subject to all outstanding amounts being paid, The CLIENT is free to transfer their website management to another service provider. YBR Marketing will supply the last
backup of the site and associated data. YBR Marketing will take all reasonable actions to transfer the CLIENT’S domain name to a new registrar, if
required.
21.2 Ongoing Management (see definition) is not included in this agreement and will require an additional agreement.
21.3 If The CLIENT does not proceed with an additional or Ongoing Management agreement, The CLIENT is responsible for Ongoing Management of the website and indemnifies YBR Marketing against any loss or damage arising directly or indirectly from website downtime or security breaches.
22. Client Responsibilities
If the CLIENT or an agent of The CLIENT other than YBR Marketing attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at our
STANDARD or OVERTIME hourly rate, and is an additional cost above the costs outlined in this agreement.
23. Errors and Omissions
It is YBR Marketing responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. However YBR Marketing is not liable for errors or omissions. The CLIENT indemnifies YBR Marketing against any loss or damage arising directly or indirectly from any errors and omissions.
24. Revisions
YBR Marketing will provide two rounds of revisions of content after the submission of the content, before the website is completed. Extended revisions outside of this scope will be charged under “Project Management” rates.
25. Copy
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office, InDesign).
26. Images
Graphics and photographs are to be supplied in digital format to YBR Marketing. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
27. Branding
All logos and branding must be provided in an industry standard vector format (preferences are: EPS, PDF, Illustrator).
28. Search Engine Optimisation
If the CLIENT opts for a Search Engine Optimisation campaign a separate agreement must be signed and agreed upon, which can be found below.
29. Online Advertising
In this Agreement the following words have their corresponding meanings:- Agreement / Terms and Conditions means your agreement with us as contained in this document (as may be modified from time to time).
Google / Google Ads / Search Engine means Google and Google Ads except to the extent that you have specifically instructed us (and we have agreed to) manage your account in relation to a non- Google search engine in addition to (or in substitution of) Google.
Facebook / Social Media means facebook social media platform except to the extent that you have specifically instructed us (and we have agreed to) manage your account in relation to non-Facebook social media platforms in addition to (or in substitution of) Facebook.
I, You, Your / Account Holder means the person or company named as the client in this Agreement and (where applicable) the website or business that you have authority over.
We / YBR Marketing ABN 73 883 023 829 trading as Live4Life.
Payment Terms
1. The Initial Set Up Fee is payable in full before the setup of your accounts will begin.
2. The Management Fee for your accounts will be charged in arrears on a monthly basis or unless agreed to the contrary.
3. YBR Marketing or the CLIENT will link credit card information to Google and Facebook so that they may automatically debit your supplied credit card for the agreed on Ads advertising budget. If you prefer to pay by EFT directly to us to pay Google or Facebook on your behalf then your advertising budget must be paid in full before commencement of the campaign.
4. YBR Marketing reserves the right to stop managing your Google Ads or Facebook accounts and terminate this Agreement at any time by written (or email) notice to you. If this occurs the YBR Marketing monthly management fee will stop immediately and no further payments will be charged.
5. If you wish to suspend or cancel the YBR Marketing management
of your accounts at any time then please let us know by phone or email.
Please note that if you wish to pause the YBR Marketing management of your Ads accounts then your Google
advertising must also be paused (which we will arrange).
6. Upon cancelling YBR Marketing management, all amounts owing
to YBR Marketing will need to be paid in full; any outstanding amounts will be due within 7 business days of cancellation.
7. All payments in this Agreement are Australian dollars and are GST exclusive.
8. YBR Marketing reserves the right to engage a debt collector at your expense if there are any unpaid invoices overdue by 60 days.
General Ads & Facebook Terms & Conditions
This is not a fixed-term contract with YBR Marketing, however whilst YBR Marketing are managing your Google Ads or
Facebook accounts the following terms and conditions apply:-
1. By entering this Agreement with YBR Marketing you give us permission to access all of your Google and Facebook business accounts for the purposes of optimisation and management of your online business.
2. YBR Marketing will endeavour to set up your advertising accounts as soon as possible, however in some cases it may take up to 7 – 10 business days to
complete set up of your new account.
3. If you decide to cancel your management services with us then we require 30 days’ notice in writing to
john@ybrmarketing.com.au
4. You can pause your management services for up to 4 weeks every 12 months. A pause that extends longer than this period will become a cancellation
and 30 days’ notice to cancel will apply. A new setup fee will be charged if you intend to use our services again, once a cancellation has been processed.
5. YBR Marketing management (with YBR Marketing management fees) is a separate service from the “per click” fees that Google Ads or Facebook will charge you. Cancellation of your management
does not automatically stop your Google Ads or Facebook advertising from running and incurring “per click” fees. YBR Marketing will not be liable for
any amounts that Google Ads or Facebook charges you following the cancellation of your management with YBR Marketing. If you wish to cease
advertising online at the same time that you cancel your YBR Marketing management, please notify your
Client Manager in writing so that we can cancel your Google Ads or Facebook online advertising as well. Alternatively, you may choose to directly access
your own Google Ads or Facebook account to arrange cancellation.
Appendix A |
YBR Marketing – Social Media Advertising Terms & Conditions
1. For clarity, please note that:-
(a) YBR Marketing is not Google, Google Ads, Facebook or Yahoo;
(b) YBR Marketing is a separate entity from Google and facebook.
2. YBR Marketing will endeavour to help you obtain your online advertising goals by providing you with advice, information and technical services in relation to Search Engine advertising/marketing. Unless
specifically stated to the contrary in this Agreement,
YBR Marketing do not guarantee any particular rate of return or performance of any online advertising on Google Ads (including but not limited to
any particular search results page/s or rankings) or Facebook. We cannot be held responsible for commercial outcomes which are associated with the Internet marketing or management of your Google
Ads or Facebook account for your business and/or websites.
3. YBR Marketing is providing an internet marketing service for a competitive price. YBR Marketing is not insuring or underwriting your chosen business model. You acknowledge that internet services are inherently subject to technical failures and disruptions from
time to time. To the maximum extent permitted by law:-
(a) YBR Marketing will not be liable in any way for fines,penalties, taxes (except GST), exemplary/aggravated/punitive damages, liquidated damages, indirect/consequential losses (including loss of contract,loss of production, loss of revenue, loss of profit,
lost opportunity costs, and/or other loss not arising naturally and directly according to the usual course of things) or legal costs and expenses (except reasonable legal
costs awarded by a court) arising from the subject matter of this Agreement; and
(b) The maximum liability of YBR Marketing to you is the lesser of:-
(i) the sum of Setup Fees and Management Fees you have paid to YBR Marketing, or
(ii) the cost of re-supplying the online advertising services ; or
(iii) the cost of rectifying the online advertising problem which has caused your loss.
4. These Terms and Conditions are governed by the law in force in the State of NSW and Australia, and the parties irrevocably submit to the nonexclusive jurisdiction of the courts of NSW, and Australia and courts of appeal from them for determining any dispute concerning the Terms and Conditions.
5. These Terms and Conditions can be modified at any time by YBR Marketing. You agree to continue to be bound by these Terms and Conditions as modified. We will publish the revised Terms and Conditions on our website – we will not separately notify you of these changes.
6. If the whole or any part of a provision of these Terms and Conditions are void, unenforceable or illegal in a jurisdiction
then such part shall be severed for that jurisdiction. The remainder of the Terms and Conditions have full force and
effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect
if the severance alters the basic nature of the Terms and Conditions or is contrary to public policy.
7. You warrant to us that you will use the services provided by YBR Marketing under this Agreement for business purposes
(and not predominantly personal, domestic or household use).
8. To the extent that Copyright subsists in any text that we create for your Ads or Facebook account/s pursuant to this Agreement; We assign copyright in such text to you. For the avoidance of doubt, this clause does not assign copyright in any
other materials that we may create for you outside the scope of this Agreement.
9. Setting up and running trial automated facebook lead ad campaign.
9(a) Stated “first week’s ad campaign is on us” trial, means ybrmarketing will include: unless stated otherwise; resources to setup ads including facebook ad accounts and pages, plus optimisation, (if not already done) all content and creative, ad monitoring and adjustment, where necessary. Does not include: ad spend for ad campaign. that cost will be paid by the trial subscriber engaged for the duration of 7 days.. ybrmarketing will not take any responsibility for results, attained, either positive or negative, during the 7 day trial but will ensure all strategies stated will be used.