Terms & Conditions
1. Definitions
“Agreement” means the agreement which is governed by these Terms and Conditions
“Associated Documents” means any documents created by Substrate Media on the reading of which contains terms which relate to the relationship between Substrate Media and its Customer.
“Customer” means the person who engages the Services of Substrate Media pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms and Conditions.
“Period” means the duration of the Agreement which is 30 days unless otherwise stated in the Customer proposal.
“PPC Services” or “Google AdWords” or “Google Ads” means pay per click services and products such as Google Ads and / or Bing that Substrate Media may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto.
“Substrate Media” refers to Substrate Media ABN 55 11 699 2044
“Services” means all services of the type and nature as described in these Terms and Conditions, Customer Proposal, Schedule to Customer Proposal and Associated Documents provided by Substrate Media to the Customer.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions of the Agreement as provided in clause 2.2.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services.
2. Agreement
2.1 The Customer is deemed to have accepted the Terms and Conditions in any of the following ways:
2.1.1 by providing a written acceptance to the Terms and Conditions by execution of Substrate Media’s Terms and Conditions or by any other form of written communication;
2.1.2 by placing an order with Substrate Media or instructing Substrate Media to provide the Services after Substrate Media’s Terms and Conditions received by the Customer
2.2 The Terms and Conditions comprise the terms in Substrate Media’s Terms and Conditions read in conjunction with the Customer proposal and Associated Documents if any and where there is a conflict between Substrate Media’s Terms and Conditions and the other contractual documentation created by Substrate Media the documentation will prevail in the following priority to the extent of such inconsistency:
2.2.1 Service Agreement if any;
2.2.2 Customer Proposal.
2.2.3 Substrate Media’s Terms and Conditions;
2.2.4 Associated Documents.
2.3 Where there are PPC Services provided by Substrate Media to the Customer, the PPC Terms will prevail over the documents stated in subclause 2.2
2A. WARRANTIES BY CUSTOMER
2A.1 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract on behalf of the registered proprietor and both the Customer and the registered proprietor are jointly and severally liable for the obligations of the Customer under the Terms and Conditions.
2A.2 The Customer warrants that it has given Substrate Media all necessary information for it to perform its work including details of all parties which have access to make changes to the website.
2B. CUSTOMER’S RESPONSIBILITIES
2B.1 The Customer will:
2B.1.1 disclose to Substrate Media all information in the Customer’s possession relevant to the provision of the Services;
2B.1.2 comply with all legal requirements and requirements of all relevant statutory authorities relating to the Services;
2B.1.3 make available as soon as is reasonably possible to Substrate Media all material required to complete the Services;
2B.1.4 notify Substrate Media in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control of the Customer’s business or change of the registered proprietor of the domain name of the Website The Customer will remain liable under the Agreement unless released in writing by Substrate Media.
3. SEO Performance Levels
3.1 The Customer acknowledges that:
3.1.1 For Substrate Media SEO, Substrate Media is unable to guarantee improved rankings in Australia’s major search engines in
part due to external factors influencing rankings;
3.1.2 For Substrate Media SEO, Substrate Media is unable to guarantee improved traffic to the Customer’s website(s) in part due to external factors influencing rankings;
3.1.3 For Substrate Media SEO, Substrate Media makes no warranty that the Services will generate an increase in sales, business activity, profits or any other form of improvement for the Customer’s business or any other purpose;
3.2 For Substrate Media SEO, the use of the Substrate Media Services is at the Customer’s own risk.
3.3 For Substrate Media SEO and other services, Substrate Media leverages Google Tag Manager to install Substrate Media conversion tracking code into your site for enhanced tracking, this remains the property of Substrate Media. Base Pixels e.g. Google Analytics/Facebook Pixel etc may need to be re-installed following cessation of services.
3.4 For Substrate Media SEO, Substrate Media operate & install premium plugins and services to support our efforts, these tools are licensed by Substrate Media and will be removed from service on cancellation of our service.
3.5 For Substrate Media SEO, Substrate Media requires complete access to FTP details & website CMS details
3.6 For any Substrate Media SEO tag implementations from client side, these will need to be uploaded succinctly [i.e within 5 working days]
3.7 For Substrate Media SEO, Substrate Media will endeavour to make SEO changes as fast as possible however will not be held responsible for lagging performance due to client delay
3.8 For Substrate Media SEO, All external submissions are completed on sites with page ranking 2/10 and above based on the latest Panda, Penguin & Hummingbird updates
3.9 For Substrate Media SEO, Key phrases will be finalised at the start of the project. New expectations are to be created if client changes desired keywords
3.10 For Substrate Media SEO, Rankings achieved will depend on key phrases selected, their competitiveness & algorithm changes
3.11 For Substrate Media SEO, Substrate Media will not be responsible for any non performance due to change in search algorithms
3.12 For Substrate Media SEO, Substrate Media will take the credits for SEO on optimised website
3.13 For Substrate Media SEO, for the Customer to provide Substrate Media with such access to the Website where necessary and to provide all necessary assistance to enable Substrate Media to change and modify the Website which is reasonably required to enable Substrate Media to provide the Services safely in accordance with the Agreement;
4. Exclusion of Liability of Substrate Media
4.1 To the fullest extent permissible by law, Substrate Media shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of Substrate Media or otherwise. Where liability cannot be legally excluded, the liability of Substrate Media shall be limited to the cost of supplying the Services again.
4.2 The Customer agrees to indemnify Substrate Media, its subsidiaries, affiliates, officers, agents and partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) by any third party claim for damages arising out of or in any way connected with the supply of Services by Substrate Media to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of Substrate Media or otherwise including any claims arising from or in connection with the Customer’s information and the Customer’s use of Substrate Media Services.
4.3 The exclusions and indemnities in clauses 4.1 and 4.2 above apply to but are not limited to the following instances:
4.3.1 malfunctioning of the Website or any part of it;
4.3.2 copyright infringements and any other infringements of intellectual property rights including but not limited to patents and confidential information caused by materials submitted by the Customer.
4.3.3 failure to meet agreed deadlines;
4.3.4 URLs dropped or excluded by a search engine for any reason;
4.3.5 acts or causes beyond Substrate Media’s control, including but not limited to acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters;
4.3.6 failure of URLs to achieve specific positions within a particular search engine during Substrate Media SEO;
4.3.7 the use or the results of the use of the materials available through the Substrate Media Services from third parties or otherwise not being correct, accurate, timely or reliable;
4.3.8 loss of data through corruption, piracy, breach of security or for any other reason that is not based on intentional or grossly negligent actions of Substrate Media;
4.3.9 the functioning of any software created for the Customer whether a database, e-commerce applications or otherwise;
4.3.10 unavailability, malfunction or interruption of services; and
4.3.11 changes made by Substrate Media to the Customer’s website.
4.3.12 Substrate Media are not responsible for data management, backups or retention of campaign data outside of Google Analytics, Facebook Ad Accounts, Bing Ads or Google Ads accounts. Within these accounts, the publishers maintain this data, not Substrate Media.
4.4 Substrate Media reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate any free hosting service should the necessity arise and Substrate Media reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
5. Fees and Payments
5.1 All fees are payable within 15 days unless otherwise agreed in writing.
5.2 Upon acceptance of the Terms and Conditions, the Customer is liable to pay the total monthly amount within 15 days for Substrate Media’s Services unless otherwise stated on the invoice. After the initial invoice payment, the Customer will pay equal monthly payments in advance during the Period. If the Customer breaches the Terms and Conditions, the total amount will immediately become due and payable.
5.3 If additional work is performed by Substrate Media as a result of changes requested by the Customer which were not contemplated by the parties at the date of the Agreement or which resulted from a default by the Customer or in the case of Substrate Media SEO an algorithm penalty or by changes made to the website by a third party, Substrate Media may make a reasonable additional charge for the additional work performed by it.
5.4 In the event that the Customer fails to make payment of Substrate Media invoices, without prejudice to any other rights Substrate Media has, interest will accrue at the rate of 2% per month on any outstanding amount and the Customer indemnifies Substrate Media against all costs and expenses, however, arising from such default including legal costs on a solicitor/own client basis and any mercantile agent’s cost at a commission rate of not more than 18 percent and any such liability shall be deemed to be part of the indebtedness of the Customer to Substrate Media.
5.5 Substrate Media has the right to suspend the provision of the Services in the event of non-payment for the same by the Customer of accounts rendered by Substrate Media for the period of 30 days;
5.6 There are no refunds available on Services by Substrate Media unless otherwise offered by Substrate Media.
5.7 All Substrate Media charges will be invoiced monthly in advance unless otherwise arranged
5.8 If the Customer disputes an invoice including disputing an item in an invoice, the Customer must notify Substrate Media in writing of the issue in dispute within 7 days of becoming so aware and must pay such part of the invoice which is not disputed in accordance with Substrate Media’s trading terms, failing which the Customer waives all rights to dispute the invoice at a later date.
5.9 Payments overdue by 90 days and over will be handed over to our third-party debt collectors. Debt collection fees will be payable by the client at the following rates: Debt of $0 – $1000: 35% fee of the owed amount; $1000 – $6000: 25% fee of the owed amount; $6000 – $10,000: 20% fee of the owed amount; over $10,000: 15% fee of the owed amount.
5.10 To terminate the agreement, the Customer has to give at least one month’s notice in writing of termination and if notice is given during a calendar month, the notice will be deemed to have been given on the last day of that calendar month and the Customer will be liable for the cost of the Services to the expiration of the notice period.
6. Termination
6.1, Both Substrate Media and the Customer may each terminate the Agreement at any time by giving written notice of its intention to do so at least 30 days before the end of the Period. If neither party gives notice of intention to terminate, the Agreement will continue for a further Period on the same terms and conditions unless it has been agreed in writing between the parties that the Agreement shall not run for a further Period in which case the Agreement shall continue from month to month until terminated by either party on one month’s notice.
6.2 Substrate Media may give the Customer written notice of variation of the Agreement (including the fees and charges of Substrate Media) and the variation(s) will take effect 14 days after such notice is given but never any earlier than the expiration of the Period of the Agreement. If notice of variation is given, the Customer may terminate the Agreement by giving written notice to Substrate Media within 14 days of receiving notice of variation, such termination to take effect when the variation would have taken effect save for the termination by the Customer.
6.3 Substrate Media may terminate the Agreement immediately by written notice to the Customer where the Customer:
6.3.1 becomes bankrupt, or insolvent, or becomes subject to external administration; or
6.3.2 commits a substantial breach or default under the Agreement; or
6.3.3 repudiates the Agreement; and if Substrate Media does give such notice, the Customer must pay Substrate Media the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
6.4 Where Substrate Media creates the Google or Facebook Ad account, upon cancellation Substrate Media has no obligation to hand over the account to the client unless otherwise agreed.
7. Substrate Media’s Rights
7.1 Any remedy of Substrate Media under these Terms and Conditions is in addition to and not in substitution for any remedy which Substrate Media has in law.
7.2 If the Customer unlawfully terminates, Substrate Media can remove data or other matters which it placed on the Website.
7.3 Any scripts, applications or software (unless specifically agreed) written by Substrate Media remain the copyright of Substrate Media and may only be commercially reproduced or resold with the permission of Substrate Media.
8. Privacy
8.1 The Customer agrees that the Customer’s personal data may be used and retained by Substrate Media for the following purposes:
8.1.1 provision of good & services
8.1.2 marketing of good & services
8.1.3 processing any payment instructions.
9. Confidentiality
9.1 Notwithstanding the expiration or termination of the Agreement, each party agrees to keep in confidence and prevent the unauthorised use or disclosure to any unauthorised person or persons of all Confidential Information which is received under the Agreement and to use such data only for the above-stated purpose save where such Confidential Information is:
9.1.1 in the public domain at the time it is disclosed; or
9.1.2 known to the receiving party at the time of disclosure; or
9.1.3 used or disclosed with the prior, written approval of the disclosing party; or
9.1.4 used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to the Agreement; or
9.1.5 independently developed by the receiving party; or
9.1.6 known to the receiving party from a source other than the disclosing party without a breach of the Agreement by the receiving party.
10. Miscellaneous
10.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of Queensland and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Queensland.
10.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
10.3 Substrate Media can assign its rights under the Agreement upon the provision of 30 days written notice to the Customer. The Customer cannot assign its rights under the Agreement without the express written consent of Substrate Media.
11. Google Ads & Social Media MarketingTerms
This schedule provides additional specific terms and conditions for the provision of Google Ads & Social Media Marketing Services by Substrate Media. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail in accordance with clause 2.3 of the Terms and Conditions.
There is no minimum term for the supply and charging of Google Ads & Social Media Marketing Services by Substrate Media to the Customer unless otherwise stated in the Order Form.
11.1 The fee for Google Ads & Social Media Marketing Services is stated in the Order Form as a base monthly fee plus GST payable in advance unless otherwise stated in the Order Form.
11.2 There is an additional first-month fee plus GST payable for setting up the account as a one-off charge unless otherwise waived in the Order Form.
11.3 Monthly fees will be fixed or as a percentage of media spend as laid out in the Order Form (unless otherwise stated in the order form) and only adjusted if the campaign package either broadens or narrows
12. Substrate Media will offer a managed Ads service with the following provisions
12.1 Substrate Media will utilise an existing or set up a new ad account for the Customer associated with the companies’ domain name.
12.2 Substrate Media will have full access to the Ads account and will link to a Google / Facebook agency campaign manager.
12.3 Substrate Media will provide the Customer via Google Analytics and / or Google Data Studio reporting and regular monthly automated performance reports.
12.4 Substrate Media will endeavour to spend the predetermined Google click cost budget each month to the best of their ability. Substrate Media will not be liable for any under or overspend.
12.5 The Customer is liable for all Ads charges generated from the Ads account.
12.6 For Google Shopping campaigns, Substrate Media will not be libel for any issues or compensation as a result of any website / Google Merchant / product attributes that lead to fines, disapprovals, legalities or otherwise.