Terms & Conditions
Unless the context otherwise requires, the following terms shall have the following meaning in this agreement.
- The term “AGREEMENT” means the document for marketing services which encompasses the engagement.
- SITE, WEBSITE or WEBPAGE refers to the clients website deliverable to the CLIENT whereby the deliverables are indicated in the proposal.
- ADMINISTRATOR refers to the CLIENT personnel in-charge of maintaining and updating the website or application and the project manager for MARKETIM.
- SOFTWARE LICENSE is any third party proprietary applications or software licenses that should be purchased or used in the implementation of the application and website.
- IMPLEMENTATION refers to the period of completing the activity as per the marketing plan.
Definition of Terms:
- “Disclosing Party” shall mean MARKETIM or CLIENT, depending upon which party is furnishing the information to the Receiving Part
- “Receiving Party” shall mean MARKETIM or CLIENT, depending upon which party is receiving information from the Disclosing Part
- “Confidential Information” shall mean any and all information marked as “Confidential”, “Proprietary” or “Restricted” or which under all of the circumstances should reasonably be considered confidential and which relates to the Disclosing Party’s business, and shall include, without limitation, any product, technical and/or business documentation, customer information, customer lists, computer programs, trade secrets, know-how, ideas, specifications, patent applications, methodologies, designs, processes, technology, techniques, drawings, inventions, diagrams, and all other relevant information pertaining theret
- Both MARKETIM and CLIENT shall keep confidential, and shall not disclose or make available directly or indirectly to any third party (except for a contractor as provided for in this Deed), all information and material of whatever nature and in whatever medium which is communicated, or becomes available to, or accessible by both parties in the course of their business relations (“the Confidential Information”).
- All Confidential Information shall remain strictly confidential until such time as it becomes known to either party, without restriction, through a legally available public source.
- Both MARKETIM and CLIENT hereby acknowledge that the Confidential Information is the valuable property of both parties and that any disclosure of it could cause considerable damage to each other.
- Both MARKETIM and CLIENT shall not use or access the Confidential Information for any reason except as it is necessary to further business discussions with each other, or in the performance of supplying goods or services resulting from those discussions.
- Both MARKETIM and CLIENT shall not permit any employee or contractor of either party to have access to the Confidential Information until such time as that employee or contractor shall have entered into a confidentiality agreement with either party, in a form approved by both parties.
- Both MARKETIM and CLIENT shall immediately notify each other of any information which comes to their attention regarding any actual or potential breach of confidentiality, disclosure or unauthorised use of the Confidential Informati Both MARKETIM and CLIENT shall make every effort to co-operate with each other in any investigation, prosecution, litigation or other action taken by either party regarding the subject of any such information.
- Exclusions to Confidentialit The obligations of non-disclosure and restrictions on use shall not apply to, and Confidential Information shall not include, information which:
- the Receiving Party can show, by a dated and written record in existence at the time of disclosure by the Disclosing Party hereunder, was in the public domain or literature, or
- the Receiving Party can show by a dated and written record was already in its possession, without obligation of confidentiality, at the time of disclosure by the Disclosing Party hereunder; and Confidential Information shall not include, and such provisions shall cease to apply to Confidential Information which, subsequently to its disclosure hereunder;
- becomes part of the public domain through no act or omission of the Receiving Party, or
- is disclosed to the Receiving Party without obligation of confidentiality by a third party having the legal right to do so, or
- Is independently developed by the Receiving Party without reference to the Confidential
- In the event of any actual or alleged breach of confidentiality, disclosure or unauthorized use of Confidential Information by any future, existing or former employee, agent, or contractor of either party, both MARKETIM and CLIENT shall enforce their respective rights to injunctive or other relief to the fullest extent possible, or, if requested by either party, assign such rights to one another. Both MARKETIM and CLIENT shall assist each other in every way in enforcing those rights and indemnify each other for all costs and expenses which each party may incur in doing
- Upon completion of discussions of any specific project, Both MARKETIM and CLIENT shall deliver to each other any Confidential Information in their possession that relates to that project and which is capable of being delivere Both MARKETIM and CLIENT shall delete, erase, or otherwise destroy all Confidential Information contained in computer memory, magnetic, optical, laser, electronic, or other media in its possession or control that relates to the project and is not capable of delivery to either party.
- Both MARKETIM and CLIENT shall make every effort to maintain the confidentiality of the Confidential Information and to protect it from unauthorised access or use.
- Both MARKETIM and CLIENT shall comply with each other’s security and safety procedures and will permit and co-operate with any additional security or safety precautions which each party may wish to implement in respect of their joint relationship
- Both MARKETIM and CLIENT shall make every effort to assist each other in their evaluation, investigation, or implementation security and safety measures including (but not limited to) providing each other with any information that might be relevant to each other’s assessment of whether they should approve access to the Confidential Information by an employee or Supplier of either part
- Neither MARKETIM nor CLIENT shall publicize their business relation with each other, or disclose any matter related to it without each other’s specific prior written consent.
- We retain all copyright, database rights and other intellectual property and proprietary rights in all works and other things developed, designed, generated or created by us in the course of providing services including systems, methodologies, software, data, know-how, documents and working papers. For avoidance of doubt, we retain all copyright, database rights and other intellectual property and proprietary rights in all reports, written advice, documents, data and other materials provided by us to you.
- You do not acquire any of this intellectual property and you must not reproduce, copy or use it in any manner other than in the ordinary course of your business without written permission from us.
SERVICES and OPERATIVE PROVISIONS
- SCOPE OF SERVICES
DEVELOPER shall perform the Services under this Agreement in accordance with the Terms of Reference set forth in the proposal preceding this agreement, including adjustments as agreed upon between the contracting parties, which form part of this Agreement.
- DUTIES OF MARKETIM AND CLIENT:
MARKETIM’s obligation as marketing providers is to develop and build the marketing as specified in the proposal.
- DEVELOPMENT PERIOD
Project scheduling shall officially start two days upon MARKETIM’s receipt of the first quarterly instalment.
- Invoicing to be made in accordance with the terms of payment.
- Payments must be received within 7 working days following the start of that quarters 1st A 2% admin fee will be charge if payment is not received within seven (7) business days of the receipt of the invoice. MARKETIM reserves the right to remove the project from its public viewing if payment delay is incurred.
Where full payment of the contract fees as specified in the Terms of Payment are not received by MARKETIM, any work completed within that relevant quarterly time period (within the engagement period) is owned by MARKETIM. This includes IP, copyright, trademarks and design by MARKETIM with no exclusions.
- DEVELOPMENT LANGUAGE
The marketing services are to be completed in the English language
- PROJECT COORDINATORS:
The CLIENT shall appoint a team or a point person to coordinate with MARKETIM. This assigned coordinator shall be responsible in providing MARKETIM all the necessary materials currently used by the client (graphics, contents, information) that is to be used in the website and application.
- ONLINE & OFFLINE DESIGN:
CLIENT will also provide timely responses (no more than 36 hours) in terms of feedback for the services.
Each day of delay beyond 36 hours the client provides their feedback will equal to the same amount of days the project will be delayed for its final release. MARKETIM will not be held responsible for the delay in the project resulting from the delay in feedback/sign off from the CLIENT. The client is allowed a maximum of 2 rounds of feedback/changes if needed for any or all design work both print and offline.
- CONTENTS AND PICTURES:
CLIENT will provide MARKETIM with the logo, contents and pictures to be integrated into the all marketing services. CLIENT shall be provided with a list of contents needed for the website and marketing activities. In no way should the CLIENT hold MARKETIM responsible for any delay due to CLIENT’s non-submission or late submission of required contents.Each day of delay the CLIENT is not able to provide MARKETIM the content will equal to a day of delay for the completion of the overall project. MARKETIM will not be held responsible for the delay in the project resulting from the delay of the CLIENT providing MARKETIM the required content.
MARKETIM will not be deemed responsible for any delays to the final project release resulting from a delay in the CLIENT feedback during the revisions periods.
- FINAL DESIGN:
A document called “Final Design” shall be submitted to the CLIENT for perusal. The final design shall serve as a “Blueprint” of the marketing activity and shall be considered as the basis for the final deliverables of the application, wherein, when MARKETIM have complied with the design indicated, the APPLICATION will be considered as done and delivered. The timeline and schedule for the APPLICATION will be finalized after the final design approval.
- DOMAIN REGISTRATION, SERVER AND INTERNET CONNECTION:
When an online project is to be deployed as an online application or website, accessible through a domain name and accessible through the internet, the CLIENT, in order to access the page, will shoulder his/her own internet connection costs, hosting, domain name and every non marketing service cost provided by MARKETIM.
- CONTACT WITH MARKETIM
MARKETIM allows up to a 3 days turn around time for interactions with client but always endeavours to keep communication consistent to a 24 hour turnaround time where possible. MARKETIM is not required to be contactable during any office closing time for annual holidays or if specific staff members are not contactable during normal working times. Reasonable notice will be given for this.
- TRADEMARKS AND COPYRIGHT:
The CLIENT represents to MARKETIM and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to MARKETIM for inclusion in web pages are owned by the CLIENT, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend MARKETIM from any claim or suit arising from the use of such elements furnished by the client.The copyright to the assembled work of web pages and source codes produced by MARKETIM is owned by CLIENT. Any work completed that is not directly owned by the client can change at any time online or otherwise. Rights to photos, animations and graphics (provided, edited or created by
MARKETIM are specifically not transferred to the CLIENT but are the property of their respective owners until payment is made. Upon final payment, the CLIENT is however licensed to use these works as long as they are used in connection with the CLIENT’s website. MARKETIM and its subcontractors retain the right to display graphics and other web design elements created for the client as examples of their work in portfolios and testimonials.
Upon full turn-over of the marketing activities, campaign and resources, raw materials and finished application and website, CLIENT agrees that the source code and copyright is for the sole use of the CLIENT Website and that these codes and templates are not to be re-sold, rented out, leased or used for any other application.
MARKETIM will keep confidential all non-public information and communication by and between MARKETIM and the CLIENT, except on as necessary for the completion of the project and with the CLIENT’s consent.
- OUT OF POCKET EXPENSES:
Any and all out of pocket expenses incurred by MARKETIM will require reimbursement from CLIENT within 7 days.
The CLIENT agrees not to hire, in any form including on consultancy, advisory, part-time, or per project basis, any employee of MARKETIM during the duration of the contract and two years thereafter without the written consent of MARKETIM, the violation of which entitles MARKETIM five times the value of this contract in addition to any actual damages MARKETIM may prove. The CLIENT also agrees not to inquire sensitive company information such as employee compensation, methods of costing and other company internal information.The CLIENT agrees that he/she is solely responsible for complying with laws, taxes, and tariffs, and will hold harmless, protect and defend MARKETIM from any claim, suit, penalty tax, or tariff arising from the CLIENT’s exercise of internet commerce or use of the site and application.
- LIMITATIONS OF LIABILITY:
To the maximum extent permitted by applicable law, in no event shall MARKETIM or its SUPPLIERS be liable for any special, incidental, indirect or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the website or marketing service or the provision of or failure to provide support services, even if MARKETIM has been advised of the possibility of such damages.Where MARKETIM is liable for a breach of any warranty implied by sections 60 and 61 of The Australian Consumer Law in respect of the services, our liability is limited to the supplying of the services again or the payment of the cost of having the services supplied again, whichever, we, in our absolute discretion, elect.
The CLIENT should seek advice of your other business advisers in areas such as tax, accounting and law regarding the implementation of business strategies. We do not provide advice in these areas.
You acknowledge and agree that the above provisions limiting and excluding our liability to you are fair and reasonable having regard to the fees payable to us, the scope of the duties we are undertaking and the cost and availability of insurance.
- SOFTWARE AND THIRD PARTY APPLICATIONS LICENSING
The CLIENT is responsible for their licensing with Microsoft and other software other than MARKETIM developed application. MARKETIM shall develop the application as agreed with the client, the usage of the system for illegal purposes or methods not approved by Australian law shall be the responsibility of the CLIENT and MARKETIM shall in no way be held liable for such cases.
Unless GST is expressly included, all amounts expressed to be payable for the supply made under or connection with this Agreement does not include GST.To the extent that any supply under or made in connection with the engagement is taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.
- TERM AND TERMINATION
The engagement specified within this Agreement will commence when you accept MARKETIM’s proposal (as set out in the proposal document) and these terms and continue for a minimum period of 12 months.At the expiry of the minimum engagement period either party may give the other party one months’ notice (the Notice Period) in writing of its intention to terminate the engagement. The Agreement between the parties will cease at the expiration of the Notice Period.
Either party may also seek to terminate this Agreement within the minimum engagement period. In such circumstances, the party wishing to terminate the Agreement must provide its reasons in writing to the other party. Due consideration will be given by the other party to the reasons and shall not be unreasonably withheld. In such circumstances either party shall give the other party 3 months’ notice (the Notice Period) in writing.
The engagement will continue in accordance with the terms of this Agreement until the expiry of the Notice Period unless the CLIENT and MARKETIM agree to alternate arrangements in writing.
Any disputes arising from the contract will be litigated or arbitrated by the courts or arbitrators of Australia, to the exclusion of any other court. The agreement shall be governed and construed in accordance with the laws of the Australia
No terms or provision in this agreement shall be varied or modified by any prior or subsequent statement, conduct or act of any party. An amendment or variation to this agreement is not effective unless it is in writing and signed by the CLIENT and MARKETIM.
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
- ASSIGNEMENT AND SUBCONTRACTING
MARKETIM may transfer all or any part of our rights, interests, obligations or liabilities under this Agreement by assignment or novation to any of our licensees. The CLIENT consents to our assignment or novation and waives any requirement for us to give you prior notice of such assignment or novation.
- NO AGENCY
This Agreement does not create or evidence any form of employment or partnership or a fiduciary relationship of principle and agent between the CLIENT and MARKETIM.
Any delay in enforcing any provision of this agreement will not affect or restrict any of the rights and powers arising under it. MARKETIM will only be taken to have released our rights under this Agreement is such a release is confirmed in writing between the CLINT and MARKETIM.
- ENTIRE AGREEMENT
This Agreement and the proposal document constitute the entire agreement between the CLIENT and MARKETIM with respect to the services.