Standard Terms and Conditions

1. Terms and their meanings

In these Terms and Conditions, the following words have the following meanings.

Agreement has the meaning as set out in clause 5.10.

Confidential Information means all information (whether or not it is described as confidential) in any form or medium that relates to the business, corporate, legal and financial affairs, technology, know-how, processes, products, pricing and/or customers of a party, its related bodies corporate or its customers, including without limitation information disclosed by a party to another party in connection with the provision of the Services whether written, oral or in electronic form and whether exchanged, disclosed or learnt before, on or after the date of the Agreement, but excludes information: (a) which is in or becomes part of the public domain other than through the breach of the Agreement or an obligation of confidence owed by one party to another party; (b) which the party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the other party; or (c) which a party learns from a third party under no duty of confidence.

Consulting means working with your business on tailored solutions and bespoke consulting needs, including discussion, planning, strategy, training, audits and reporting.

Content Marketing means a type of marketing that involves the creation and sharing of online material (such as videos, blogs, and social posts) that does not explicitly promote a brand but is intended to stimulate interest in its products or services and build brand awareness.

Creative can apply to any of the following services: Persona Development; Branding; Brand Story / Identity development; Brand Messaging; Copywriting; Design; Development HTML; Graphic Design; Landing Pages; Motion Design; UX; Video. These service streams can be applied stand alone or in compliment to an existing digital performance strategy.

Email Marketing means the email marketing services provided by Webprofits under the Agreement designed to promote your business to your customers via email.

Growth Marketing means any service related to the development for you of a marketing strategy.

GST means Goods and Service Tax imposed in Australia under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related or similar legislation, regulations, rulings and determinations.

Intellectual Property Rights means all current and future intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including (in relation to the Services): all texts, graphics or digital components; all layouts, logos, structures or arrangements or other components of any materials presented to you as part of the Services; and all copyrights, patents, inventions, any analogous rights, trade secrets, know-how and any right to apply for registration of, or any application for, such rights.

Loss means any direct, indirect, consequential or incidental loss, costs, damages or expenses of any nature whatsoever and howsoever caused including, but not limited to, loss of profits, loss of savings or other incidental or consequential damages, and any claims, actions, or demands in relation to any of the foregoing.

Paid Search means an advertising model in which advertisers pay for clicks to their website from Search Engines and advertising networks predominantly, but not limited to Google Ads Suite and Microsoft Ads.

Paid Social means any service which is designed to promote your brand through a platform such as, but not limited to Meta (Facebook, Instagram), LinkedIn, TikTok and/or Pinterest.

PPSA means the Personal Property Securities Act 2009 (Cth).

Quote means the written communication setting out the Services to be undertaken and the fees payable in respect to such Services and may include additional terms and conditions of trade.

Research means undertaking general research in relation to the potential marketing strategy that should be developed for you, which may include comparing marketing strategies used by similar service offerings.

Search Engine means a tool designed to search for information on the Internet, such as Google and Bing.

Search Engine Optimisation / SEO means any service which is designed to assist your Website gain a higher organic listing in Search Engines.

Services means the provision of services by Webprofits, including but not limited to any services in relation to: Consulting; Content Marketing; Creative; Email Marketing (see clause 2.2); Growth Marketing; Paid Search (see clause 2.3); Paid Social (see clause 2.5); Search Engine Optimisation (see clause 2.4); Strategy (see clause 2.6); and Web Design (see clause 2.7).

Standard Fee means the fee charged by us for the provision of Services identified in the Quote.

Strategy means any service related to the research and creation of a marketing strategy aligned with your marketing goals.

Web Design means the design, modification and/or development of a Website.

Webprofits means Webprofits Pty Limited (ACN 118 897 886) as Trustee for Webprofits Unit Trust (ABN 62 505 397 869) and any of its related entities.

We, our and us means Webprofits.

Website means your website or the website which Webprofits is designing and/or marketing for you.

You and your means the entity which requests the Services from Webprofits or to which the Services are delivered by Webprofits and includes that entity's agents and permitted assigns.

2. Provision of services

2.1 Provision and acceptance of Quotes

2.1.1 Provided that we receive an acknowledgement and order confirmation of a Quote within one (1) month of receipt of a Quote by you, we will use all reasonable endeavours to provide the Services in accordance with the Quote. The information contained in any Quote is valid for 30 days from the date of the Quote.

2.1.2 If you require additional Services to those outlined in the Quote after the Quote has been provided to you, the additional Services will incur additional charges or fees. All additional charges or fees must be approved by you before we agree to provide you with the additional Services.

2.1.3 While we will endeavour to keep to our delivery dates as set out in our Quotes, any delay in delivery of any Services for any reason whatsoever will not entitle you to claim for any Loss whatsoever, or provide you with a right to cancel, rescind or terminate the Agreement.

2.1.4 You agree to:

provide us with all information in your power, control or possession that we may reasonably require in order to perform and provide any Services to you or be able to meet any obligations under the Agreement;
not unreasonably delay any approval, direction, action, determination or decision that you are required to make in order for us to provide Services to you or be able to meet any obligations under the Agreement; and
without limiting anything contained in this clause 2.1, notify us of any matter or thing that comes to your attention that is or may be material to the provision by us of the Services to you or would or may affect the capability or ability for us to meet any of our obligations under the Agreement.

2.2 Email Marketing terms

2.2.1 Email Marketing Services may include emails prepared by us for you, which you must ensure will comply with all applicable laws, and codes of practice governing the use of the Internet and related services, including, without limitation, data privacy and spam laws under the laws of any relevant jurisdiction.

2.2.2 We will keep secure any of your Confidential Information and will notify you immediately of any known or suspected unauthorised use of or access to your Confidential Information, or any or suspected breach of security related to the Email Marketing Services.

2.3 Paid Search terms

2.3.1 Paid Search Services include management of your Paid Search budget.

2.3.2 Payment of the Paid Search budget will be made by you directly to the publisher, Search Engine provider (in particular Google), or advertising network, and you agree to indemnify us from all liability or claims made against us as a consequence of the provision of any services to you by such third parties.

2.3.3 Confirming advertising budgets is the responsibility of the Client and must be presented in writing. When the advertising budget is "unlimited" based on Return-on-Ad-Spend or Cost-Per-Lead/Sales goals these targets must be clearly outlined in writing. Without written confirmation of budgets and/or budget changes, Webprofits cannot be held responsible for any overspend or incorrect allocation of advertising funds.

2.3.4 We will not be responsible for any errors or miscalculation of fees made by Google or other advertising networks or publishers for which you are liable or in the alternative for which you indemnify us under clause 2.3.2 above. However, we will use reasonable endeavours to assist in rectifying any errors on your behalf.

2.3.5 We will not be responsible for any loss of your Paid Search budget due to non-functioning downtime of your Website or Website hosting.

2.4 Search Engine Optimisation / SEO terms

2.4.1 Our SEO services are focused primarily on achieving improvements in the position of your Website when undertaking certain keyword searches using the Google Search Engine.

2.4.2 You acknowledge that, unless the Quote provides for exclusive dealing, Webprofits may at its discretion offer SEO Services to businesses in competition with you and/or businesses in the same or a similar industry as you.

2.4.3 We use both paid and free methods in an attempt to raise the ranking of your Website in Search Engine results. We disclose, and you acknowledge, that without notice Search Engines, in particular Google, can devalue a particular method which may lead to a lower ranking of your Website in Search Engine results, which is outside of our control.

2.5 Paid Social terms

2.5.1 Paid Social Services include management of your Paid Social budget.

2.5.2 Payment for Paid Social budget will be made by you directly to the social platform (in particular Meta) and you agree to indemnify us from all liability or claims made against us as a consequence of the provision of any services to you by such third parties.

2.5.3 Confirming advertising budgets is the responsibility of the Client and must be presented in writing. When the advertising budget is "unlimited" based on Return-on-Ad-Spend or Cost-Per-Lead/Sales goals these targets must be clearly outlined in writing. Without written confirmation of budgets and/or budget changes, Webprofits cannot be held responsible for any overspend or incorrect allocation of advertising funds.

2.5.4 We will not be responsible for any errors or miscalculation of fees made by Meta or other advertising networks or publishers for which you are liable or in the alternative for which you indemnify us under clause 2.5.2 above. However, we will use reasonable endeavours to assist in rectifying any errors on your behalf.

2.6 Strategy

Strategy means any service related to the research and creation of a marketing strategy including but not limited to any of the following services:

2.6.1 Meetings held with you in relation to your marketing strategy, including but not limited to a scope meeting to determine your marketing goals.

2.6.2 Research.

2.6.3 The development of a marketing strategy.

2.6.4 Reporting to you on the performance of your marketing strategy.

2.6.5 Monitoring the results of your marketing strategy and varying it when required.

2.7 Web Design terms

2.7.1 We retain ownership of any Website designed and/or developed by us on your behalf until such time as payment of all amounts owed to us is received.

2.7.2 Until all amounts that may be owing at any time to us are received by us, we shall grant to you a revocable, non-transferable and exclusive licence to use any Website that we develop on your behalf for the intended purpose of the Website. However, we reserve the right to revoke this licence at any time until all amounts owing to us are received by us.

2.7.3 If any Website is used or attempted to be used by you other than in accordance with the Agreement, then you must cease to use the Website if directed by us and you agree that we may seek an order from a court for injunctive relief against you to prevent you from continuing to use the Website against the terms of the licence provided to you.

2.7.4 Upon receipt of all amounts owed by you to us, all right title and interest in your Website will automatically be transferred from Webprofits to you, including, unless otherwise agreed with Webprofits, a licence to use source files and codes developed by Webprofits for your Website. If agreed in the Quote, source files and code developed by Webprofits for your Website will be transferred from Webprofits to you upon payment in full for the same. Otherwise, such source files and codes developed by Webprofits shall remain the property of Webprofits and used by you under licence from Webprofits.

2.7.5 You will be solely responsible for maintaining backups of your Website and any customer data which is generated from your Website marketing. We will not be liable for corrupt, incomplete or outdated data recovered from any backup that we may decide to keep of your Website.

2.7.6 You will be the sole owner of, and responsible for, all images purchased and displayed by you on your Website (with the exception of content developed by Webprofits and associated Intellectual Property Rights, ownership of which shall vest in Webprofits unless otherwise agreed in writing between you and Webprofits).

2.7.7 We acknowledge that we do not have any proprietary rights whatsoever in your Intellectual Property Rights, however you agree that you grant to us a licence to use your Intellectual Property Rights for any purpose we may reasonably require in order to perform and provide any Services to you or be able to meet any obligations under the Agreement.

2.7.8 You warrant to us that:

you will only use your Website for lawful purposes in accordance with any laws in force in any jurisdiction;
you will not knowingly or recklessly post, link to or transmit on your Website any material that: (i) is unlawful in accordance with any laws in force in any jurisdiction; (ii) contains a virus or other hostile computer program; (iii) constitutes or encourages a criminal offense; (iv) gives rise to civil liability; or (v) violates or infringes any trademark, other intellectual property rights or similar rights of any person under the laws of any jurisdiction;
any transactions within your Website which are or cause to be created any form of contracts for sale of goods or services will be between you as the merchant and your end-user customer, and we will not be held responsible or liable for any Loss that may occur whatsoever under any of these contracts;
the information contained within your Website will comply with all applicable laws, and codes of practice governing the use of the Internet and related services of any jurisdiction, including, without limitation, those codes of practice governing distance selling and data from time to time in force; and
you will keep secure any identification, password and other Confidential Information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any or suspected breach of security, including loss, theft or disclosure of your password information.

2.7.9 Notwithstanding notification of any breach of security as required pursuant to the warranty in clause 2.7.8.e, you will be liable for any and all uses of your Website including but not limited to any fraudulent or improper use of your password or any other access to any of the facilities or Services provided by Webprofits with the exception of unauthorised use or access by Webprofits.

2.7.10 It is your responsibility to ensure that you have appropriate virus protection software in place.

3. Confidentiality

3.1 Subject to clause 3.2, each party:

3.1.1 must not use, disclose or copy any Confidential Information of the other party in any form or in any manner; and

3.1.2 must use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that third parties do not use, disclose or copy Confidential Information, except for the purpose of and to the extent necessary to perform its obligations or exercise its rights under the Agreement.

3.2 The obligations in clause 3.1 do not apply if:

3.2.1 a party has agreed in writing to the specific disclosure, use or copying of its Confidential Information;

3.2.2 disclosure of specific Confidential Information is required to comply with any applicable law; or

3.2.3 a party is compelled by an authority, court or tribunal to disclose information it would otherwise be required to keep confidential.

3.3 This clause 3 will continue to bind each party after the Agreement has been terminated, rescinded or otherwise expired.

4. Exclusion and limitation of liability

4.1 Whilst we make every effort to ensure that the Services will achieve your desired outcomes, with the exception of any warranties that are unable to be excluded at law, all conditions and warranties, whether express or implied and whether arising under legislation or otherwise, as to the condition, suitability, quality, accuracy, availability, effectiveness or fitness of the Services or otherwise are expressly excluded.

4.2 The liability of Webprofits:

4.2.1 for a breach of a condition or warranty, whether express, implied by law or otherwise, and which cannot be excluded; and

4.2.2 in respect to any Loss suffered or incurred by you or any person or entity related to or associated with you arising out of or in connection with the performance of the Services, will be limited to any one of the following as determined by Webprofits:

4.2.3 the supplying of the Services again; or

4.2.4 the payment of the cost of having the Services supplied again, provided that such liability does not arise by virtue of the gross negligence, wilful default or fraud of Webprofits.

4.3 Notwithstanding anything to the contrary contained within these Terms and Conditions, these Terms and Conditions will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any Services pursuant to the Agreement of all or any of the provisions of Chapters 2 and 3 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other provisions of that Act or of any other Act of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia which by law cannot be excluded, restricted or modified.

4.4 You indemnify, on a full indemnity basis, and agree to keep indemnified Webprofits against all Loss suffered by Webprofits directly or indirectly arising as a result of the provision of the Services to you, including but not limited to, any Loss arising from any action, claims, demands or suits commenced or made against Webprofits by any third party, save for losses arising as a result of our gross negligence, wilful default or fraud.

5. General terms and conditions

5.1 Availability

We shall use reasonable endeavours to provide continuing availability of the Services, but we shall not, in any event, be liable for any Service interruptions that may occur.

5.2 Property Rights and other consents

You are solely responsible for obtaining any and all necessary consents and authorisations in relation to all material, images and content whatsoever that appears on or is used in your Website and/or Paid Social pages, including without limitation in respect of your proposed domain name, logos, pictures, text, merchant services agreements and any other information you provide to us.

5.3 Termination

5.3.1 Subject to any fixed term as set out in the Quote, either party may terminate the Agreement by giving thirty (30) days written notice to the other party. You will be liable for any fees incurred during the notice period.

5.3.2 In the event the Agreement is terminated by you, or by us pursuant to clause 5.3.4 or clause 5.3.5, then you will be liable to pay us on demand the aggregate of:

all unpaid fees pursuant to the Quote to the date of the termination of the Agreement together with any monies which are payable to Webprofits pursuant to the Terms and Conditions hereof; and
the balance of fees payable from the date of the termination to the end of any fixed term which would have been payable had the Agreement not been terminated.

5.3.3 You acknowledge the monies we notify you that are payable under clause 5.3.2 in writing represent a true and accurate assessment of our liquidated damages arising from any termination of the Agreement and you agree to pay the amount set out by us in any notice in writing pursuant to this clause.

5.3.4 We may terminate the Agreement immediately by notice in writing to you if you fail to make payments in relation to the Services to us as and when they fall due and you fail to rectify the failure to pay within five (5) working days from receipt of notice from us requesting rectification.

5.3.5 We may terminate the Agreement immediately by notice in writing to you if you:

are in breach of any of these Terms and Conditions and you fail to rectify such breach within five (5) working days from receipt of notice from us requesting rectification of same; or
you are in breach of clause 5.7 of this Agreement; or
if you are a company and you go into liquidation, administration or receivership; or
if you are a person and you are declared bankrupt; or
you fail to provide us with satisfactory instructions in relation to the provision of the Services (as determined by us acting reasonably) for a continuous or aggregate period of 90 days.

5.4 Payment

5.4.1 Subject to any increase in accordance with clause 5.4.2, all fees payable by you to us for the Services shall be as outlined in the Quote and shall be due and payable within seven (7) days of receipt of our invoice in relation to such Services.

5.4.2 We reserve the right to:

review our fees for the provision of Services at the end of the initial term of engagement set out in the Quote; and
increase our fees for the provision of the Services following such review by giving you a minimum of thirty (30) days written notice, provided that should such notice be given you will be entitled to terminate the Agreement by giving thirty (30) days written notice should you not agree to the increased fees.

5.4.3 The provision, or continued provision, by us of the Services is contingent upon our receipt of payment in full from you in accordance with the applicable Quote. Without prejudice to any other rights and remedies we may have, including those rights and remedies we may have under the Agreement, we reserve the right to suspend the provision of the Services to you in the event of late payment of any amounts owed by you to us.

5.4.4 In the event that any amount has not been paid by you as it falls due in accordance with clause 5.4.1 or otherwise pursuant to the Agreement ("Due Date"), interest on the outstanding amount will be payable by you in accordance with this clause. Such interest shall accrue on the outstanding amount from time to time at the rate of five percent (5%) per annum from the Due Date until the outstanding amount is paid to Webprofits in full, such interest to be calculated on a daily basis and paid monthly in arrears. For the avoidance of doubt, the first of such interest payments will be due one month after the Due Date, or as otherwise directed by Webprofits.

5.4.5 In addition to interest payable pursuant to clause 5.4.4 above, you will be liable, and you agree to immediately reimburse Webprofits upon demand, for any costs incurred by Webprofits in relation to collection of any outstanding amounts owed by you to us, including but not limited to legal costs.

5.4.6 In addition, to the extent of any outstanding amounts, you grant us a security interest over your business assets (defined as personal property in the PPSA) pursuant to the interest created by these Terms and Conditions.

5.4.7 Upon provision of a credit card account, you give us authorisation to automatically debit your credit card in relation to all amounts owed by you to us for provision of the Services and as set out in applicable invoices.

5.5 Severability

If any clause of these Terms and Conditions is held to be invalid and/or unenforceable in whole or in part, the invalid or unenforceable clause or part shall be deemed to be omitted.

5.6 Force Majeure

5.6.1 Webprofits shall not be liable for failure to provide the relevant Services if the failure is attributable to any cause which is reasonably beyond Webprofits' control, including but not limited to:

war (declared or undeclared), riot, terrorism, political insurrection, rebellion or revolution, or act of sabotage;
pandemic, epidemic, or quarantine restrictions;
strike, lockout, boycott or other labour disputes, which interfere with the provision of Services by Webprofits; or
fire, flood, explosion, earthquake, hurricane, tornadoes or other natural disasters,

(hereinafter known as "Force Majeure").

5.6.2 If Webprofits experiences any event of Force Majeure that will result in its non-performance, it shall promptly notify you in writing of the existence of that event and the anticipated period of non-performance.

5.6.3 If the actual period of non-performance by Webprofits because of an event of Force Majeure exceeds (or is reasonably likely to exceed) 3 months from the date of such notice of Force Majeure, you shall be entitled to terminate this Agreement as of the end of such 3 month period or at any time thereafter during the continuance of the event of Force Majeure conditions based on sixty (60) days written notice to Webprofits. Neither party shall have any claim against the other party as a result of such termination.

5.7 Non Poach

During the term of the Agreement and for a period of six (6) months after the termination of the Agreement for any reason, each party must not directly or indirectly, without prior written consent from the other party:

induce or assist in the inducement of any director, manager, employee or contractor of the other party to leave, or terminate, his or her employment or engagement, whether or not that person would commit a breach of that person's contract of employment or engagement; or
employ or engage any person who during the term of the Agreement was a director, manager, employee of or contractor to the other party.

Each party acknowledges this clause is necessary to protect each party's business.

5.8 Assignment

The benefit of the Agreement may not be assigned by either party, without prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

5.9 Change to Terms

We reserve the right to review and change the Terms and Conditions by providing you thirty (30) days' notice in writing setting out details of the change, provided that should such change be notified you will be entitled to terminate the Agreement within the thirty (30) days' notice period should you not agree to the amendment. If Webprofits does not receive such notice from you within the required time frame and continues to provide Services to you thereafter, you are deemed to have accepted the change to these Terms and Conditions.

5.10 Entire Agreement

These Terms and Conditions together with the Quote, constitute the entire agreement with you ("the Agreement"), and supersede all prior agreements, understandings, representations whether oral or written. No oral explanation or information given by any party shall alter the interpretation of these Terms and Conditions.

5.11 Governing Law

The Agreement shall be governed by the laws in force in the state of New South Wales, Australia. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.

5.12 Inconsistency

In the event of any inconsistency between these Terms and Conditions and the terms and conditions contained in the Quote, the terms and conditions of the Quote will prevail.

5.13 Waiver

5.13.1 A single or partial exercise or waiver by a party of a right relating to the Agreement does not prevent any other exercise of that right or the exercise of any other right.

5.13.2 Any failure or delay to exercise a power or right by a party under these Terms and Conditions does not operate as a waiver of that power or right unless it is signed in writing.

5.13.3 A party is not liable for any Loss of the other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

5.14 Relationship of the parties

5.14.1 Nothing in the Agreement gives a party authority to bind any other party in any way.

5.14.2 Nothing in the Agreement imposes any fiduciary duties on a party in relation to any other party.

5.15 General terms

5.15.1 You accept and acknowledge that at no time will we provide to you any advice, warranty or assurance that any product or service you offer as a result of the provision of the Services by us or otherwise is in compliance with any law of any country, state or jurisdiction in the world in which you conduct business and that you warrant to us that you have taken all steps and done all things to ensure that any product or service that you provide is compliant with all relevant laws, regulations and rules in any jurisdiction in which you provide any product(s) or service(s).

5.15.2 In addition to the indemnity you provide to us as a term of entering into this Agreement as set out in clause 4.4 above, you agree to hold us harmless from any claim you have or may have in relation to non-compliance by you in the sale of any product or service in any jurisdiction or place whatsoever.

Standard terms and conditions