The client (herein the “Client”) named in the attached Marketing Proposal (“the MP”) agrees with MOBLE Media Pty Ltd (ACN 610 655 126) (“MOBLE”) that in consideration of MOBLE agreeing to provide the Services to Client the following terms and conditions shall apply:
2. Definitions and Interpretation
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in NSW, Australia.
Business Hours means 9:00am – 5:00pm on Business Days.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
MP means Marketing Proposal. This is the pre-sales document provided to you by MOBLE, out lining the agreed pricing for our services.
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
The Client means you, the person who accesses the our services for any reason.
We, Our and Us means MOBLE MEDIA PTY LTD, ACN 610 655 126, Suite 34, Jones Bay Wharf, 26-32 Pirrama Road NSW 2009.
You means you, the person who accesses the our services for any reason, whether or not You are a Registered User of the Platform services.
(c) Currency refers to Australian dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in NSW, Australia.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
This is our agreement for the period set out in the MP
3. Legal Agreement
This agreement (which includes the MP) shall be a legal agreement between Client and MOBLE. The agreement shall constitute the entire agreement between Client and MOBLE in relation to the Services and the MP and it shall not include any terms and conditions of Client (including on any purchase order or other document submitted by Client) unless agreed to in writing by MOBLE.
Quotes are valid for 30 days.
4.1 All quotations are valid only for a period of thirty (30) days and MOBLE may, in its discretion, refuse any purported acceptance by the Client which occurs after that time.
4.2 This agreement commences on the start date specified in the MP (start date) and is for an indefinite term unless a finish date is specified in the MP or the agreement is ended earlier in the matter permitted by this agreement.
MOBLE reserves the right to review and vary its Fees
5. Fees and Pricing
5.1 In the event of an increase in the costs of providing the Services, including without limitation the imposition of a new direct or indirect tax or impost, legislative change (including changes that directly impact minimum employee entitlements and employer obligations), exchange rate fluctuations or supplier cost increase, MOBLE reserves the right to review and vary its Fees to take into account the impact of such changes.
5.2 In addition to clause 5.1, MOBLE may review and adjust its Fees and charges for any Services, once each year on or after each anniversary of the date from which those Services are first provided. Any Fee increase may not be less than the percentage increase during the immediately preceding year, if any, of the Consumer Price Index (All Groups Weighted Average of eight capital cities) as published by the Australian Bureau of Statistics.
5.3 The Fees cover work set out in the MP. Any change to the MP including a change to:
(a) the scope, nature, location or volume of the Services; or
(b) the assumptions upon which the Fees are based; may lead to an adjustment in the Fees.
Fees must be paid within a 14 day notice period
6. Payment Terms
6.1 The Client acknowledges and agrees that invoices must be paid to the MOBLE company member supplying the Services unless a different MOBLE Affiliate is stipulated in the MP.
6.2 In consideration for the provision of the Services the Client agrees to pay the Fees for the full amount invoiced without set off or deduction, within 14 days of the date of invoice unless the relevant Product Terms provide otherwise.
6.3 If the Client disagrees with any amount claimed in an invoice, it must notify MOBLE within 7 days of invoice receipt. The Client must pay any undisputed balance in accordance with this clause.
6.4 If an undisputed invoice is not paid when due MOBLE may, in its sole discretion, suspend supply of the Services.
3.5 All pricing is exclusive of goods and services tax (“GST”). MOBLE reserves the right to recover from the Client all “GST” payable in respect of the supply of Services to the Client.
MOBLE has no control over the policies of internet search engines and third party software, we can not guarantee or predict performance where third party systems are being used
7. Service Limitations
7.1 Where the Services include search engine optimisation services, MOBLE does not represent, warrant, or guarantee that the Client URLs will achieve a favourable position, or any position, within search engines. MOBLE cannot control or guarantee which, if any, search engines will improve the rankings, or even accept inclusion of the site; nor shall MOBLE be responsible for URLs dropped or excluded.
7.2 MOBLE has no control over the policies of internet search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s websites may be excluded from any directory at any time at the sole discretion of the search engines or directories
7.3 Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, MOBLE does not guarantee listing, positions or ranking on search engines for any webpage in relation to any particular keyword, phrase or search term;
7.4 Search engines may re-rank or exclude websites and webpages for no apparent or predictable reason. Often a webpage will reappear without any additional submissions. Should a webpage not reappear, MOBLE will, at the cost of Client, re-submit the site based on the current policies of the search engine in question.
7.5 Where the Services include data analytics and reporting services by MOBLE or the provision of data to the Client for its own performance-tracking or other analytics purposes, the Client acknowledges that there is no guarantee of 100% accurate analytical prediction, and that the outcomes are subject to the type and quality of data supplied to MOBLE.
7.6 Where the Services include outbound email communications, the Client acknowledges that MOBLE cannot guarantee or control the delivery or the rate of delivery of these services, which are dependent upon accurate and up to date email addresses, upon suitable internet availability and connectivity, on various anti spam and junk mail policies adopted by recipient email service providers as well as restrictions regarding the content, wording and graphics on the receiving server.
7.7 Where the Website or Social Media allows comments to be posted by visitors, the Client acknowledges that MOBLE has no responsibility for monitoring or controlling such comments. MOBLE reserves the right to remove Inappropriate Content from the Website.
4.8 The Client shall indemnify MOBLE against all damages, losses and expenses arising as a result of any action or claim (a) that any Content approved by the Client infringes the Intellectual Property Rights or other rights of a third party and/or (b) that any Content or any comment posted to, or linked to, the Website constitutes Inappropriate Content.
4.9 Client acknowledges that MOBLE relies on third party interfaces and databases to deliver the Services and as a result MOBLE cannot guarantee uninterrupted access to and use of those third party internet interfaces and databases at all times.
You must notify us of any changes that may affective our service to you
8. Client Responsibilities
8.1 Client must notify MOBLE each time any modification to Client’s websites is made where that modification may affect the delivery of the Services by MOBLE;
8.2 Client shall ensure that all legislative or other requirements which have particular application to the Client's business, products or services are drawn to MOBLE’s attention in the Project Summary and in any event as soon as is reasonably practicable.
All parties must keep confidential information confidential.
9. Confidential Information
9.1 Each party shall, and shall use its best endeavours to ensure that its employees and agents, keep the Confidential Information confidential and not use or disclose the Confidential Information to any person other than:
(a) in confidence to that party's professional advisers to obtain professional advice;
(b) as may be properly required for the purpose of the provision of the Services and the performance of any obligations under the Agreement;
(c) with the consent of the other party;
(d) as may be required by any Law, the rules of any stock exchange or any court of competent jurisdiction; or
(e) to the extent that any part of the confidential information is in the public domain otherwise than through the breach by a party of its obligations under this clause 6.
9.2 Each party must as reasonably required by the other party, destroy or return to the other party any Confidential Information, at the requesting party’s cost.
9.3 Client agrees that the identity of Client is not Confidential Information and that MOBLE may disclose to third parties that MOBLE has been engaged by Client.
Your privacy is important to us. Any Personal Information provided should comply with the Privacy Act and any other applicable law in respect of that Personal Information.
10.1 If a party is provided with, or has access to Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information.
10.2 If Personal Information is provided to MOBLE by or on behalf of the Client, then the Client:
(a) must do all things necessary, including but not limited to: (i) obtaining all appropriate consents from individuals; (ii) providing notifications to individuals; and (iii) maintaining accurate, up to date and complete records; to ensure that MOBLE may lawfully use, process and disclose the Personal Information (and any changes made to any of them) in connection with the provision of the Services;
(b) acknowledges and agrees that except as may be required by this Agreement, MOBLE is not
required to take steps to ensure that any Personal Information has been collected in accordance with the Privacy Act;
(c) must do all things reasonably requested by MOBLE to assist MOBLE to comply with the Privacy Act in the course of its provision of the Services under this Agreement including: (i) assisting MOBLE in the updating of an individual’s records in circumstances where an individual elects to “opt out” and not receive direct marketing materials and services; (ii) providing MOBLE with access to information held by the Client in respect of an individual when the individual makes a request for such access; and (iii) providing MOBLE with the policies and procedures the Client has put into effect pursuant to the Privacy Act if requested to do so by MOBLE.
10.3 If MOBLE collects Personal Information in the name of or on behalf of the Client:
(a) the Client must provide to MOBLE such collection statements, scripts for use, privacy policies and other materials necessary to ensure compliance with the Privacy Act in the collection of such Personal Information; and
(b) the Client acknowledges and agrees that where MOBLE is authorised or required by the Client to collect or otherwise deal with Personal Information in the name of or on behalf of the Client in connection with providing the Services, that MOBLE does so as agent for the Client.
10.4 If MOBLE processes any Personal Information in the name of or on behalf of the Client:
(a) the Client acknowledges and agrees that the Personal Information may be disclosed or stored outside Australia in order to provide the Services. The Client consents for MOBLE to receive, share and disclose Personal Information arising from use of the Services with telecommunication or other providers used in conjunction with the Services, or as may be required by Law;
(b) MOBLE shall process the Personal Information in accordance with this Agreement and any lawful instructions reasonably given by the Client from time to time; and
(c) each party shall take appropriate security and organisational measures against unauthorised or unlawful processing of the Personal Information or its accidental loss, destruction or damage.
MOBLE will take reasonable steps to ensure that appropriate confidentiality and security measures are in place to protect the data from unauthorised access, use or disclosure
11. Data Use & Security
11.1 The use of the Services by the Client may require the processing of the Client Materials and other data generated in connection with the Services by third party suppliers. During the provision of the Services, this data may be transferred to or accessed from other jurisdictions outside of Australia by MOBLE’s third party suppliers. MOBLE will take reasonable steps to ensure that appropriate confidentiality and security measures are in place to protect the data from unauthorised access, use or disclosure. If the data includes any Personal Information, the Client consents to its use as set out in this clause.
11.2 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside MOBLE's control and could result in a breach of security. Client hereby expressly waives any claim against MOBLE arising out of the loss of content or data through corruption, piracy, and breach of security or for any other reason outside of MOBLE’s reasonable control.
11.3 MOBLE shall be permitted to use Aggregated Data for any purpose or disclose Aggregated Data to any third party. The foregoing shall not limit in any way MOBLE’s confidentiality or privacy obligations under the Agreement. In the event MOBLE wishes to use or share any Aggregated Data that contains Personal Information, such information shall be de-identified so that it cannot be linked specifically to the Client or an individual.
MOBLE limits its liability. Each party must do what is reasonable in the circumstances to mitigate and minimise any costs, damages, expenses and/or losses.
12. Limitation of Liability
12.1 To the extent that any Law implies certain non-excludable conditions and warranties into the Agreement for the supply of goods and services, then to the extent permitted by Law, MOBLE limits its liability in relation to the provision of the Services under the Agreement to the supplying of the Services again or the payment of the costs of having the Services supplied again, at MOBLE’s option.
12.2 MOBLE shall not be liable for any loss or damage, whether arising in contract, tort (including negligence), under product liability legislation, under any other statute, under any indemnity or otherwise, sustained by the Client or any other person directly or indirectly from or in connection with the supply of goods or services or otherwise arising out of the Agreement.
12.3 The liability of a party is reduced proportionately to the extent to which the liability is caused, or contributed to, by the other party.
12.4 Each party must do what is reasonable in the circumstances to mitigate and minimise any costs, damages, expenses and/or losses incurred or suffered by the other party in connection with any claim under the Agreement.
Subject to clause 13.3, during the Term MOBLE will indemnify and defend the Client from and against all liabilities.
13.1 Subject to clause 13.3, during the Term MOBLE will indemnify and defend the Client from and against all liabilities, damages, and costs (including reasonable legal costs) arising out of a third party claim that the Services infringe the Intellectual Property Rights of such third party. Notwithstanding the foregoing, in no event shall MOBLE have any obligations or liability under this clause 13.1 in connection with:
(a) the Client’s use of any Services in a modified form not approved by MOBLE or in combination with materials not furnished by MOBLE, or
(b) the Client Materials.
13.2 Subject to clause 13.3, during the Term the Client will indemnify and defend MOBLE from and against all liabilities, damages, and costs (including reasonable legal costs) arising out of a third party claim that MOBLE’s use of the Client Materials for the provision of the Services, infringe the Intellectual Property Rights of such third party.
13.3 The party seeking the indemnity must:
(a) give the other party prompt written notice of the claim;
(b) permit the other party to have full and complete control over the defence and settlement of the claim;
(c) provide assistance in connection with the defence and settlement of the claim as the other party may reasonably request; and
(d) comply with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
13.4 The indemnities above are a party's only remedy under this Agreement for violation by the other party of a third party's Intellectual Property Rights.
Neither party will be responsible for any delay, non-performance or degradation of performance
14.1 Each of the parties warrants to the other that:
(a) it has full power and authority to enter into and perform the Agreement;
(b) it shall comply and shall ensure that its employees and agents comply, with any Law; and
(c) it has or will acquire all Intellectual Property rights needed to perform its obligations under the Agreement.
14.2 The Client warrants that:
(a) it will not do, and it will not direct or request MOBLE to do, anything which may breach any Law or applicable industry code;
(b) it will make any decisions and provide any approvals, data, documentation and information reasonably required by MOBLE, promptly;
(c) it will carry out any tasks assigned to it and its agents or contractors in a timely manner and in such a way as to not delay MOBLE in the provision of the Services;
(d) the Client Materials
(i) do not contain any matter which is obscene, defamatory, or illegal;
(ii) are not false, misleading or deceptive or likely to mislead or deceive;
(iii) are up to date, technically accurate, complete and correctly formatted for any distribution or use by MOBLE in the provision of the Services;
(iv) are free from viruses and do not contain malware, spyware or any other code which could alter or disrupt any program, product, service or device;
(e) the use of the Client Materials by MOBLE for the purposes of providing the Services and all matters incidental thereto will not breach any Law or infringe the Intellectual Property rights or other rights of any person or entity; and
(f) it will pay to MOBLE any additional costs incurred by MOBLE in converting or processing Client Materials which are not in compliance with this clause
(a) To the extent that the law permits, MOBLE makes no representation of any kind, express or implied, with respect to the Services.
(a) The Client acknowledges and agrees that MOBLE makes no guarantee regarding the results, outcomes or profitability of any campaigns conducted by MOBLE for or on behalf of the Client.
Either party may terminate the Agreement in writing.
15.1 Either party may terminate the Agreement without prejudice to its other remedies by notice in writing to the other (Defaulter):
(a) if the Defaulter commits a material breach of the Agreement and the Defaulter has not remedied the breach within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied;
(b) if the Defaulter is or becomes insolvent or bankrupt, becomes an externally-administered body corporate under the Corporations Act 2001 or steps are taken by any person towards external administration; or
(c) if any monies to be paid under the Agreement are not paid by their due date and remain unpaid for a period of 7 days after notice has been served requiring the payment default to be remedied.
15.2 On termination of the Agreement the Client’s right to use the Services ceases.
15.3 At any time prior to the termination or expiry of the Agreement, the Client may submit a written request for disengagement services and/or assistance with transitioning to a new provider. Unless these services are agreed, scoped and costed pursuant to a Change Request or a separate MP, such services are provided in MOBLE’s absolute discretion at MOBLE’s then current rates and charges.
15.4 Termination of the Agreement does not affect the accrued rights or liabilities of either party.
15.5 The Client acknowledges and agrees that:
(a) MOBLE may recover from the Client any costs reasonably incurred and notified to the Client in connection with the retrieval of Client Data; and
(b) any Client Data in electronic form requested for retrieval under clause 10.1(b), will be made available in the format on MOBLE’s systems at the date of termination. If the Client requires data conversion, such services may be provided by MOBLE at additional cost.