These terms and conditions (“Terms”), together with the Thinktank Social Services Specifications constitute a legally binding agreement between you (the Client) and Thinktank Social Pty Ltd (ACN 153 923 687) of 2/24 Stapley Crescent CHADSTONE Victoria 3148 (“Thinktank Social”), for the provision website optimisation services, website production and online advertising services and/or other services set out in your Thinktank Social Services Specifications (the “Services”) effective from the date the last party signs the Thinktank Social Services Specifications OR starts using the Services..
‘Background IPR’ means a party’s IPR that existed prior to, or created independently of, this Agreement.
‘Thinktank Social Services Specifications’ means the document titled the “Thinktank Social Services Specifications” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Thinktank Social, as agreed in writing by the Client and approved by Thinktank Social.
‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.
‘Fee’ means the money payable to Thinktank Social for the Services and any incidental costs as set out in Thinktank Social Services Specifications.
‘Material’ means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material..
‘Transfer Fee’ means the transfer fee set out in the Fee Schedule.
‘Uptime SLA’ means the uptime service level agreement for websites which Thinktank Social hosts.
1.1 This Agreement will commence on the Commencement Date and continue until the Completion date (the ‘Term”) unless terminated earlier in accordance with clause 24.
1.2 The parties agree that the Agreement will run for the Minimum Term in order to maximise the results and benefits of the Services. Should the Client wish to terminate the Services during the Minimum Term, it can do so in accordance with clause 24.1 noting however that Thinktank Social reserves the right to charge a Cancellation Fee (or part thereof) in its absolute discretion.
1.3 The parties may choose to extend the Term for a further 12 months or as agreed by the Parties in writing (including moving to a monthly agreement).
(e) provide the Client with detailed accounts of Services rendered.
(f) it will use its best endeavours to comply with its obligations under this Agreement.
3.2 For the avoidance of doubt, Thinktank Social does not take any responsibility for the Client Content and it is the Clients sole responsibility to ensure the integrity of the Client Content.
(c) regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.
(e) provide other such access, documents, information or data as Thinktank Social reasonably requires in order to perform the Services; and.
(f) ·comply with in the terms and conditions of this agreement, including any Special Conditions set out in Schedule 1.
3.4 The Client agrees to comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of Thinktank Social obstructs the nature and goodwill of the Services.
3.5 The Client agrees to use the Services only for lawful purposes and is prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state or national law.
(c) to protect the rights or property of Thinktank Social.
3.7 Thinktank Social reserves the right to remove any Client Content or other content that it deems to offensive or as otherwise described in clause 3.5. Where a series of such breaches occurs by the Client. after receiving notice to desist from Thinktank Social, Thinktank Social will terminate your Agreement with immediate effect in accordance with clause 24.2 (a).
4.1 The Fees for the Services are set out in Schedule 1.
4.2 Unless otherwise indicated in Schedule 1 the Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to Thinktank Social any GST relating to the Services.
4.3 The Client hereby gives its express authorisation for Thinktank Social to automatically debit the Clients nominated bank account (including credit card or Ezidebit Payment) on the Debit Date for the payment of the Fees.
4.4 Thinktank Social will provide the Client with a Statement of Account showing the amounts debited and any other fee or disbursement accrued on the Clients behalf.
4.5 Any disbursements incurred as a result of providing the Services will be reimbursed in full to Thinktank Social upon submission of receipts to the Client.
4.6 If there is a change in the scope, timing or order of the Services, then Thinktank Social will be entitled to additional payment of any amount which is reasonable in the circumstances.
5.1 Where Thinktank Social has attempted to debit the funds on the Debit Date and the payment has been rejected due to insufficient funds (or some other reason), Thinktank Social will contact the Client to arrange another date to debit the account. Where the second attempt to debit the account fails, Thinktank Social reserves the right to charge a Failed Payment Fee. The outstanding payment immediately becomes a debt due and payable by the Client to Thinktank Social.
5.2 Where 2 or more attempts have been made to debit the account but payment fails, Thinktank Social will suspend all services until the relevant payment(s) have been made.
5.3 The Client agrees to pay any and all costs associated with recovery of debt under this clause including (but not limited to) debt collection, outsourcing and legal costs should Thinktank Social take legal action through courts of appropriate jurisdiction.
6.1 Thinktank Social will set up paid advertising campaigns and deliver paid traffic to the Clients website. This can be from a variety of networks including Google, Facebook and Bing. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. Thinktank Social is not to be held liable in this situation. When subscribing to remarketing services through Thinktank Social, it is the responsibility of the Advertiser to ensure that relevant Privacy Laws and Policies (Google, Facebook) are in place regarding direct marketing.
6.2 Costs associated with media and clicks generated from running this service will be charged directly by respective platform. The Client authorises Thinktank Social to provide your credit card details to the advertising platform for this purpose. These fees will appear as separate charges on the Clients credit card statement.
6.3 The Client agrees that Thinktank Social is not responsible or liable for any incorrect payments charged by third party advertising platforms. The Client agrees to communicate directly with the advertising platform should any incorrect charges be made on your nominated account by a third party advertising platform. Thinktank Social agrees to provide tis reasonable assistance to facilitate communication between the Client and Google should this situation arise.
(b) A minimum of 12 payments have been made on this service.
6.5 The Client must comply with guidelines for the respective paid advertising platforms.
6.6 A Paid Advertising campaign which is still in its Minimum Term and has had a minimum of 3 payments processed, can be paused for a 1 regular payment, per 3 regular payment period. Where the campaign is suspended for a longer period of time, then Thinktank Social may choose to terminate the Agreement and charge the Client a Cancellation Fee in accordance with clause 1.3.
6.7 If Thinktank Social elects to use a paid platform account owned by the Client, changes to the account should only be made by Thinktank Social staff. The Client can request changes to the account via the nominated Thinktank Social account manager.
6.8 Please note that Thinktank Social (a Google AdWords Certified Company) is not directly affiliated with Google™. All Google™ related services, claims and guarantees are performed and underwritten by Thinktank Social.
7.1 Thinktank Social will upload optimised content and tags to the Client’s website where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.
7.2 During the provision of the Services, the Client may provide Thinktank Social with access to make changes to their website. However, the Client agrees that Thinktank Social is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3. This excludes websites which been developed by and still hosted with Thinktank Social.
8.1 Website design services are provided as per your Website Design Agreement with Thinktank Social. An approximate timing schedule is provided at the time of the Website Design Agreement. Failure to provide content or other items within the specified time will delay the setup of the website.
8.2 Website design costs may be subsidised by Thinktank Social and set out in Schedule 1. If the Client discontinues the development of the website at any stage prior to completion, the Client is liable to pay this subsidised amount. Further, if the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any fees associated with the completion of the website as outlined in their Website Design Agreement.
8.3 After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website is hosted by Thinktank Social. In the event that the Clients website goes down and it is hosted on a website server other than the Thinktank Social server, we are not responsible for bringing the website back online.
9.1 Where Thinktank Social will host a Clients existing website, the Client must pay a Transfer Fee at the outset of the web hosting service.
9.3 If in any calendar month, should Thinktank Social fail to meet the Uptime SLA, Thinktank Social will refund to the Client, as its sole right or remedy, a 20% percentage credit of the fees for the relevant Service in that month (“Service Credit”). Service Credits are calculated against that month’s webhosting fees and charges only. The Client must request a Service Credit in writing via our email address support@thinktanksocial.com.au. All requests must be made within 30 days of the Uptime SLA breach occurring, and the Client must provide Thinktank Social with details of the breach claimed for verification purposes. If the breach is confirmed by Thinktank Social (based on Thinktank Social’s records obtained from its monitoring services) to have occurred, then Thinktank Social will, within 60 days of your request being received, apply the relevant Service Credit to the Client’s nominated account.
9.4 The Client is only entitled to make 1 claim for a Service Credit per month.
9.5 Where the Client is in breach of its obligations under this Agreement, including its obligation to pay Fees, then any Service Credit will be set off and deducted from the amount owed by the Client to Thinktank Social. Nothing in this clause prevents Thinktank Social from exercising its full rights to recover monies from the Client owed to Thinktank Social under this Agreement.
9.6 Thinktank Social takes no responsibility for a websites functionality or performance that has been transferred into its hosting environment pursuant to this clause. If Thinktank Social identifies any issues with the website which may degrade the server and/or affect the stability of the Clients website, Thinktank Social will notify the Client of same and such issues must be rectified at the Clients expense in order to continue the hosting services.
10.1 Thinktank Social will assist the Client in the setup of email addresses via a preferred services provider. Instructions will be provided on the setup of the email access on your desktop and mobile devices.
10.2 Any further support regarding the setup or ongoing usage of your email will be provided via the preferred services provider.
11.1 Thinktank Social will undertake the optimisation of the Clients website as per best practise techniques used in the industry.
11.2 Although Thinktank Social are the specialists in the industry, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Clients website history, industry and many more factors. The Client agrees to release Thinktank Social and any employee, owner, or director of Thinktank Social from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
11.3 Any alterations of SEO keywords by the Client after the initial selection of the keywords will incur additional fees.
11.4 One face to face meeting is included in SEO services per year. Organic Search Marketing services include three face to face meetings per year. All meetings are to be carried out in the Thinktank Social offices.
11.5 SEO services do not include the consultation required in the launching of a new website, on the domain being worked on. An additional fee will be payable for this service, which will be quoted prior to commencement of this consultation. Organic Search Marketing services are exempt of this fee.
12.1 Ad-hoc website maintenance including content updates is charged at the hourly rates set out in Schedule 1 with a one (1) hour minimum and has a ten (10) business day turnaround time. Website maintenance packages will have content changes administered five (5) business days after requested.
13.1 Some of the Services may contain links to other websites (“linked websites”) which are not owned or operated by Thinktank Social. Those links are provided for convenience only and may not remain current or be maintained. Thinktank Social is not responsible for the content or the terms and conditions and privacy practices associated with linked websites.
13.2 Thinktank Social’s links with linked websites should not be construed as an endorsement, approval or recommendation by Thinktank Social of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless written and authorised endorsements have been made by Thinktank Social in relation to those specific links, products and/or services.
(c) provide any additional services which have been agreed to in writing between Thinktank Social and the Client, the provision of any additional services are subject to the terms of the Agreement and may incur additional fees.
(i) any other Exclusions listed in the Thinktank Social Services Specifications.
15.2 Thinktank Social may choose to provide the above services at an additional cost to the Client (which will be invoiced separately).
(d) use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.
16.2 For the avoidance of doubt all methodologies, documentation and procedures used by Thinktank Social for the provision of the Services are classified as Thinktank Social’s Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless Thinktank Social provides its express written consent (which may be withheld in its absolute discretion).
17.1 The Client agrees to comply with the Privacy Act 1988 in its dealings with Thinktank Social. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Thinktank Social in connection with this Agreement. The Client indemnifies and keeps indemnified Thinktank Social from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.
18.1 Where the Client has been introduced to Thinktank Social via a third party referrer, the Client acknowledges and agrees that some information may be shared with these partners including email, name and products purchased for reporting purposes.
doubt, the Client owns all IPR in the Client Content and grants Thinktank Social a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.
19.2 All IPR in the Services Material is owned by Thinktank Social upon creation. Subject to the payment of the Fee, Thinktank Social hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.
19.3 The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.
19.4 The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.
19.5 The Client indemnifies, saves and holds Thinktank Social harmless from any loss, liability, claim, damage or expense Thinktank Social suffers or incurs as a result of the Clients failure to comply with its obligations under this clause.
20.1 Use of Thinktank Social Trademarks are strictly prohibited unless written consent is obtained from Thinktank Social.
20.2 Where consent is provided under clause 20.1, the Client must include a statement attributing ownership of the Trademark(s) to Thinktank Social.
(d) in a manner that disparages Thinktank Social or its information, products or services.
20.4 Failure to comply with the obligations contained in this clause may result in infringement action being taken against the Client without further notice.
21.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Thinktank Social’s control and could result in a breach of security. The Client hereby expressly waives any claim against Thinktank Social arising out of the loss of data through corruption, piracy, and breach of security or for any other reason.
22.1 Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
22.2 Subject to clause 22.1, any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.
(b) paying the cost of re-supplying the Services.
22.4 To the extent that Thinktank Social’s liability cannot be or is not otherwise limited according to this clause 22, under no circumstances will Thinktank Social’s total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Thinktank Social by the Client under this Agreement.
(b) any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.
(d) any wilful, unlawful or negligent act or omission of the Client.
22.6 The Client’s liability under clause 22.5 will be reduced proportionately to the extent that Thinktank Social’s negligent act or omission contributed to that loss or liability.
(b) Any loss or damage suffered by the Client or any third party due to the Clients negligent or improper use or of the Services and/or Services Material.
22.8 Thinktank Social is not responsible for URLs dropped or excluded for any reason.
22.9 Thinktank Social does not represent, warrant, or guarantee that the Clients URLs will achieve a favourable position, or any position. Thinktank Social cannot control or guarantee which, if any, search engines will accept the submission of the Clients website. Thinktank Social will not be responsible for delays or failure of performance resulting from internet service provider delivery problems or failure, or any communication or delivery problems associated with the Clients order details, such as incorrect email address or URL address.
23.1 The parties must work in good faith to resolve any dispute between them arising from this Agreement.
23.2 Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/ CEO or authorised delegate or equivalent of each party.
23.3 If the dispute remains unresolved after a period of 60 days after the second meeting referred to in clause 23.2, the parties will agree upon an appropriate mediator. Failing agreement, the President of the Law Society of Western Australia will appoint a mediator. Agreement as to the allocation of costs will be determined through mediation.
23.4 A party may not commence court proceedings until 30 days after referral to a mediator pursuant to clause 23.3 except that nothing in this clause will prevent any party from seeking urgent interlocutory relief through courts of appropriate jurisdiction.
(d) the Client becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
24.3 A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.
24.4 The provisions of clauses 5.3, 16, 17, 19, 20, 21 22, ,27. and this clause 24.4 survives termination or expiration of this Agreement.
25.1 Thinktank Social is an independent contractor and not an employee or agent of the Client.
25.2 The manner of performance of the Services will be at all times within the judgement and discretion of Thinktank Social.
25.3 Neither Thinktank Social nor any employee, contractor, representative, agent of Thinktank Social will by virtue of this Agreement be deemed to be an employee of the Client.
25.4 The parties to this Agreement will not be or be deemed to be in any partnership, collaboration or joint venture and neither party will hold itself out as being in any way a partner or joint venturer of the other party and neither party will pledge the credit or warrant the authority of the other party.
Cancellation Fee – the total sum of the Fee payable until the end of the Minimum Term stipulated above. 25% of the Regular Payments fee multiplied by the number of Minimum Payments left in the Minimum Term, up to a maximum of 12 payments.
Note that all pricing is in Australian dollars and is exclusive of GST.