In these terms:
1.1 “eDM” means electronic direct mail utilised during a digital marketing campaign, including but not limited to remarketing advertising, ‘pay per click’ campaigns, social media and offline advertising.
1.2 “Excess Work” means all work required by you not included in the Proposal, outside the scope of works or work completed (as approved by you in writing) which must be further amended.
1.3 “Fee” means the agreed fee set out within the Proposal.
1.4 “Finished Product” means the completed works created as part of the Project from the Materials, but excludes any drafts, templates, and preliminary work, as well as any works not ultimately accepted by you, or completed by FL.
1.5 “FL” means Fox and Lee Pty Ltd [ABN 47 615 761 183]
1.6 “GST” means goods and services tax, as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.7 “Key Phrases” means the mutually agreed target search phrases for the purposes of SEO.
1.8 “Materials” means all items or things created, provided or obtained by FL to complete the project, including any drawings, sketches, artwork, photographs, computer disks, raw footage, source, audio and other digital files or otherwise.
1.9 “Proposal” means the covering email, overview, project timeframe and estimate accompanying these terms of business. The Proposal is valid for 14 days from its date of issue.
1.10 “Project” means the totality of all the work outlined in the Proposal, or such part as is accepted by you.
1.11 “SEM” means search engine marketing and includes the use of paid advertisements appearing in search engine results.
1.12 “SEO” means search engine optimisation and includes services to manipulate elements of your website and references to your website from other websites for the purposes of having your website found and listed by an internet search engine with the aim of improving your website’s ranking in a search engine when Key Phrases are searched.
1.13 “Services” means any work done by FL for you pursuant to the Proposal.
1.14 “You/Your” means the client as defined within the Proposal.
2.1 Upon you appointing FL to do the Project, an agreement will come into existence comprising these terms and FL’s Proposal, as varied with FL’s written approval.
2.2 Subject to the specific details of FL relevant to the Proposal, these terms cover all ongoing and future work undertaken by FL for you unless varied with FL’s written consent.
3 Proposals and/or Pitches
Where Materials or any other media and/or information are provided to you for any reason, including as part of any proposal or pitch prior to you formally engaging FL, their provision is made on the basis that FL retains copyright and all other intellectual property rights in them and that any recipient of them will keep them confidential and will return them complete and uncopied unless otherwise agreed with FL in writing.
4.1 You will use your best endeavours to ensure that all instructions, including FL’s initial brief and any subsequent feedback, are in writing and, in particular, you will sign off on all work produced.
4.2 Approval is required by you for each stage of work before the next stage commences.
4.3 PDF proofs or online web proofs will be sent via email for approval and will not advance until they are approved by you. If a printed proof is required, a quote will be organised and supplied to you for approval prior to printing.
4.4 FL will not be liable for any errors or omissions resulting from oral instructions or from a failure on your part to sign off on any work. This includes, but is not limited to: spelling, grammar, colour, typing errors or oversights you have not located before printing or upload.
4.5 If you provide oral instructions, FL will provide you with their written summary and no further work will be done until you confirm the accuracy of FL’s summary of your oral instructions.
4.6 FL may be instructed by you, or your authorised officer (with such authority having been provided in writing).
5 Fees and Expenses
5.1 The Fee is based on your instructions, specifications and any other information available to FL as at the date of Proposal and may change if your instructions, specifications or requirements change.
5.2 If the duration of the Project exceeds 3 months from the date of the Proposal, FL may, at its discretion, review the Fee going forward.
5.3 FL may, at its discretion, require you to pay a 50% deposit prior to commencing work by issuing an initial invoice. Work will commence on receipt of the deposit. Thereafter, FL will invoice you on a monthly basis.
5.4 All invoices, fees and expenses are payable by you within 7 days of the date of the invoice, unless otherwise agreed by FL in writing. FL reserves the right to not release Project files until all outstanding invoices are paid.
5.5 Despite clause 5.3 above, FL reserves the right to invoice at regular intervals or on the basis of progress/volume of work done, or as specified in the Proposal. FL reserves the right to cease work until all outstanding amounts are paid. You agree not to hold FL liable for any damage, claim or any other liability caused by the delay in providing the Services as a result of your non-payment.
5.6 Any further revisions outside of the scope of the Proposal will be considered as Excess Work. If you request Excess Work, FL reserves the right to charge you additional fees at the rate specified in an additional estimate, or as otherwise agreed by you and FL.
5.7 All estimates or additional estimates exclude tax, such as the GST, unless otherwise indicated.
5.8 If FL contracts the services of third parties as part of the scope of work, their fees will form part of FL’s account (unless agreement is reached that they be billed direct to you) and will include an additional fee for project management and art direction, as outlined in the Proposal.
5.9 Reasonable expenses incurred by FL in providing the Services, such as (but not limited to) footage or photography, retouching, print production, purchase of fonts and/or travel are excluded from the estimate within the Proposal, will be charged to you and included in the invoice. The charge included in the invoice will include a 20% surcharge payable to FL. You agree this is a reasonable fee for the costs incurred by FL arising from the management of the Project.
5.10 All deposits and fees paid are non-refundable after the project commences and/or after 14 calendar days have elapse since the deposit was paid.
5.11 If any payments under this clause remain unpaid for more than 7 days from their due date, FL, in its absolute discretion, reserves the right to charge interest at the rate of 7% per annum, calculated daily, until payment is made. You agree this is a reasonable pre-estimate of the costs incurred by FL arising from any of these amounts remaining unpaid.
5.12 FL employs the services of a debt collector to pursue any overdue payments. If an overdue payment is referred to a debt collection agency or a law firm, you will be liable for all costs associated with the collection.
6 Timelines and Cancellation
6.1 Neither FL nor you will be liable for failing to perform your respective obligations under this agreement if that failure is due to an event beyond reasonable control. This clause does not excuse payment of any amount due to FL.
6.2 If you cancel the Project for any reason (which cancellation must be in writing), you must pay all fees and expenses incurred by FL to the date of such cancellation, plus all costs incurred by FL relating to the Project.
6.3 If FL has engaged the services of third parties to assist with the Project, you may also be responsible for paying their cancellation fees.
6.4 Some services, including SEO, eDM, month-to-month retainers, domain names and web hosting may require a signed cancellation form which can be downloaded here
6.5 In the event of unforeseen circumstances where a Project is required to be postponed prior to completion, FL requires you to communicate this in writing, including the duration of the postponement. You will be invoiced for all work undertaken and expenses incurred until postponement.
6.6 FL may terminate this Agreement for any reason, including in where a Project has been inactive with no communication from you for a period of 3 months from the last point of contact. If FL terminates the Agreement, you will be provided with 14 days’ written notice.
6.7 If FL terminates the Agreement per above clause, you agree to pay FL all amounts accrued and owing in accordance with the Proposal within 14 days of the expiry of the period of notice.
7 SEO and Digital Marketing & Advertising
7.1 FL may provide you with SEO services and is authorised to use the Key Phrases to attempt to improve the ranking of your website within a search engine.
7.2 You acknowledge that the performance and success of FL’s SEO services is dependent on the operation of the relevant search engines which may, from time to time, change their processes and procedures which may have an impact on the results obtained by FL.
7.3 You acknowledge that SEO results can take several months to materialise, and that it may be several months before they can be meaningfully analysed.
7.4 FL cannot and does not make any guarantees in relation to its SEO services with respect to search engine ranking, positioning, website traffic, and the demand for your goods and/or services.
7.5 FL may provide you with SEM services. The fees and expenses associated with SEM services, such as purchasing AdWords or other similar ‘pay per click’ advertising services from Google (Ad Spend), are separate to FL’s marketing & advertising campaign management fee. Ad Spend is the amount paid directly to Google. If not contained within the Proposal, an Ad Spend estimate will be separately provided to you and subject to your approval.
7.6 It is your responsibility to advise FL in writing of any changes you wish to make to the Key Words being used, the Ad Spend or any other aspect of the marketing & advertising campaign.
7.7 In order to manage your marketing & advertising campaign, FL may require you to provide it with access to your existing social media pages. You acknowledge that FL’s lack of access to your existing social media pages may have an impact on your marketing & advertising campaign.
8 Website Development
8.1 FL design and develop custom websites to suit your needs. All websites produced by FL carry the text ‘Website by Fox & Lee’ at the bottom of the site unless a written request to not do so is made by you.
8.2 All websites provided by FL are built with a content management system (CMS) so that you may access some of the content on the website to update and upload with ease. Login details are provided on completion of the website.
8.3 Whilst the website is under the development and maintenance of FL, your administrative and file access to the website may be limited.
8.4 FL does not provide onsite training for CMS of a website, but may provide you with educational material explaining the fundamentals of WordPress and WooCommerce.
8.5 Upon completion of the website, you will be responsible for independently editing or updating the website using CMS unless otherwise agreed by you and FL. If anyone other than FL or its subcontractors attempt to update the website and damage the design or impair the ability of the website pages to display or function properly, FL reserves the right to charge you for the repair costs. The repair charges will be assessed at an hourly rate of $165.00 (incl.GST) per hour, with a minimum payable being one hour.
8.6 FL is not liable or responsible in anyway or whatsoever for:
i. Any virus, spam, contamination, damage or loss as a direct or indirect consequence form the use of the website or any of its associated products or services; or
ii. Any financial loss occurring from the use of the website, or any products and services.
8.7 The website will be deemed complete upon inclusion of all relevant images and text and after all functional elements have been installed, with the exception of product and blog related content which you are responsible for uploading unless agreed otherwise in writing. You will have 7 days from the date on which FL notifies you of the website’s completion to advise FL in writing of any changes. If you do not notify FL of any changes within 7 days, FL will deem the website finally complete.
8.8 As there are a lot of contingencies and variables in building a website, including your cooperation, FL is not able to guarantee the time it will take to build your website unless expressly stated in the Proposal.
8.9 FL provides no guarantee as to how your website will be displayed in search engine results. Unless included in the Proposal, the provision of SEO services will need to be subject to a further agreement between you and FL.
9 Website Hosting
9.1 FL prefer to host your website via FL for reliability, ease of management and access to technical help.
9.2 FL outsource and engage the services of a third-party trade web hosting company who are trusted within the industry. We only use the services of professional and reputable businesses that are more than capable of providing the services required.
9.3 Further to clause 9.2, FL use secure and reliable hosting servers for any ecommerce web hosting that requires SSL Certification and offers very high banking security approved by Australian standards for any transfer of financial funds over a secure server using the latest 128-bit SSL (secure sockets layer) encryption technology. 128-bit SSL encryption is the current industry standard.
9.4 FL cannot provide 24/7 technical assistance. FL may be contacted to provide technical assistance between Monday to Friday from 9:00am – 5:00pm AEST with the exception of public holidays or during times of office closure.
9.5 FL do not provide technical support for personal home/office computers and/or devices and software.
9.6 FL take no responsibility for loss of business due to server downtime, errors or hacking, malicious code or illegal activities of a third party that affect a website.
10 Domain Registration
10.1 FL cannot guarantee that the requested domain name(s) will be available for registration.
10.2 It is your responsibility to update your contact details with FL. If FL cannot contact you at the time of domain name renewal, it may result in your website being taken offline.
10.3 If you fail to pay the domain name renewal fee in a timely manner, and the subscription is cancelled as a result, FL cannot guarantee that the domain name will still be available if you wish to re-purchase it again at a later date.
10.4 Domain name registration by or through FL and managed on your behalf will always remain your property. If you choose to manage a domain name yourself at a different location, you must notify FL of your requested change and allow 30 days for the transfer and release.
11.1 If requested to do so, FL may arrange the printing of a Project. If not already contained within the Proposal, a quote for the supervision of printing will be supplied for your approval. It will be your responsibility to approve print samples.
11.2 Colour and print interpretation may be a matter of opinion. You acknowledge that output of print colour may vary between 2-5% from what is viewed on screen. If an exact colour match is required, FL recommends that a print sample be ordered first before a large print run is carried out.
11.3 If FL is not responsible for arranging the printing of a Project, you may request that FL prepare all artwork for high resolution printing and send the relevant files directly to your preferred print house or publication. Once artwork has been released to the printer, it is your responsibility to further manage printing.
12 Ownership, Copyright and Intellectual Property
12.1 FL will maintain the confidentiality of any information supplied by you, but only if you advise in writing that such information is confidential.
12.2 No copyright or any other intellectual property rights in the Materials will be assigned to you until FL has been paid in full all fees and expenses due. If FL has engaged the services of a third party in relation to the Project, the assignment may be subject to the third party’s terms of business.
12.3 Subject to clause 12.2, all intellectual property contained in any website, application, product or service developed for you by FL or provided to you by FL remains the property of FL until all payments due to FL have been paid in full.
12.4 Once all FL’s fees and expenses have been paid, FL will licence to you copyright in the Materials, limited to the purpose and media described in the Proposal. FL’s fees are based upon this limited licence of copyright.
12.5 If you require a more encompassing licence or assignment, this must be subject to further negotiations between you and FL. An assignment of copyright will only be granted if FL provides this in writing.
12.6 Despite clauses 12.4 and 12.5 above, FL retains moral rights in the Materials. Further, FL always retains the right to use and display the Project or any of the Materials for any self-promotional, awards, press releases, credential documents or competitive purposes.
13 Warranties and Indemnities
13.1 You will obtain all necessary consents and approvals to ensure that the Materials may be lawfully used by you (including names and trade marks), but FL will not be responsible for any misrepresentation made by or conduct of independent contractors or third parties involved in the Project.
13.2 You will indemnify FL against all claims arising from FL’s use of any information or documents supplied by you or for any act or thing done by FL on your instructions or with your approval.
13.3 You warrant that you have not relied on any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by FL or anyone on its behalf in respect of the Materials other than those that are expressly contained in the Proposal.
13.4 FL makes no warranty regarding the suitability or otherwise of any of the Materials for your purposes and it is your responsibility to ensure that the Materials comply with the requirements of any legislation regarding marketing, labelling, packaging or otherwise.
13.5 FL makes no guarantee of search engine registration, website functionality or statistics where the website or service is hosted externally.
13.6 Each party will not, without the prior written approval of the other, disclose or use any information of the other party which by its nature or the circumstances of its disclosure could reasonably be expected to be regarded as confidential. A party will not breach this obligation where it is legally compelled to disclose the other party’s confidential information or where the other party’s confidential information was or became part of the public domain other than through disclosure in breach of this obligation.
13.7 Any specific restrictions in relation (but not limited to) illustrations, typography and/or images will be listed within the Proposal. It is your responsibility to adhere to these restrictions. FL will not be liable for your breach of the relevant licence agreements.
13.8 To the extent the law permits, FL excludes all liability whatsoever to you arising out of or in any way connected with the Project and the Services including any liability for consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort. Consequential or indirect losses will be taken to include:
i. Any loss of income, profit or business;
ii. Any loss in the nature of overhead costs; and
iii. Any loss of goodwill or reputation.
13.9 You will indemnify FL against all claims arising from FL’s use of any Materials, information or documents supplied by you or for any act or thing done by FL on your instructions or with your approval, including but not limited to any claims arising from any information or documentation supplied by you.
13.10 You agree that all representations made in any Finished Product are made by you and not FL, and you agree to indemnify FL in respect of any claims, including losses and expenses, made in relation to your use of the Finished Product.
13.11 You further agree to indemnify and hold harmless FL of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including reasonable legal fees and costs, arising out of or relating to any breach by you of these Terms.
14 Privacy and Digital Marketing
14.2 You consent to and authorise FL to collect and store your personal information for use in direct marketing by FL. If you do not wish to receive marketing material from FL, you can opt-out by contacting FL. All emails, SMS messages and newsletters from FL allow you to opt out of further communications.
14.3 FL do not take responsibility for your safe-keeping of passwords and/or login details to access your website, email, or other sensitive information. If you lose this information and/or request the password details to be changed, FL will require a written request to do so and may charge you an administration fee.
14.4 FL do not take any responsibility for damages caused to the client due to their loss of passwords.
15 Retention of Files
FL will retain all client files on completion of the Project for a period of 3 years. If files are required to be kept for a longer period, which must be separately agreed to in writing, FL reserves the right to charge an appropriate fee for that purpose.
These terms are not intended to, nor do they, create a partnership, agency, employment, joint or fiduciary relationship between you and FL.
17 Governing Law
You and FL agree that this agreement is governed by, and will be interpreted in accordance with, the laws of the State of Victoria. You agree that the Courts of Victoria have exclusive jurisdiction to determine any dispute arising under or in connection with these terms.