All goods and services delivered or provided by Impact Automotive Pty Ltd (Impact Automotive Pty. Ltd.) to any customer (the Customer) are provided subject to the following conditions.
1. Impact Automotive Pty. Ltd. provides the following services:
1.1. The following services:
1.1.1. Website hosting;
1.1.2. Website Development;
1.1.3. Search Engine Optimisation support;
1.1.4. Social Media marketing on a pay per
220.127.116.11. Campaign (Social Media Campaign);
18.104.22.168. Click (PPC), or
22.214.171.124. Lead (PPL) basis; and
1.1.5. General Internet marketing consultancy (the Services)
1.2. On the basis that all services are delivered on:
1.2.1. a wholly pre-paid basis;
1.2.2. with a fee that is based on professional skills and third party costs
1.3. Any quote and/or delivery estimate for the Services should be taken as indicative only.
Impact Automotive Pty. Ltd.’s Obligations
2. In delivering Services, Impact Automotive Pty. Ltd. shall:
2.1. Ensure that all work performed is of a fit and proper standard undertaken with all due diligence, care and attention;
2.2. Comply with the reasonable direction of the Customer at all times in respect of access to the Customer’s site;
2.3. Preserve the integrity and confidentiality of the Customer’s data and other confidential information which may be disclosed to Impact Automotive Pty. Ltd.;
2.4. Ensure that all of its employees, agents and sub-contractors are legally obliged to preserve the integrity and confidentiality of the Customer’s data and other confidential information which may be disclosed to Impact Automotive Pty. Ltd.;
2.5. Review all images and phrasing provided by the Client to avoid incorporating any that are not of a standard that in Impact Automotive Pty. Ltd.’s sole opinion to maximise the probability of a good outcome.
3. Times given for delivery or installation of the Services are stated in good faith but are not to be treated as a condition of the sale. Impact Automotive Pty. Ltd. takes all care but no responsibility in regard to late installation and no claim may be made by the Customer on account of wrongly delivered Services or late delivery of Services however caused. Late delivery does not constitute a breach of this contract by Impact Automotive Pty. Ltd. and the Customer will not be entitled to cancel the contract because of late delivery. When Impact Automotive Pty. Ltd. receives an order it may estimate a delivery date or time, however, this is understood to be an indication only, and cannot be relied upon. Furthermore, any delay in delivery or installation shall not excuse or relieve the Customer from his obligation to accept or pay for the Services. Impact Automotive Pty. Ltd. undertakes to promptly communicate with its Customers regarding any delays or additional professional efforts or third party costs (and thus fees) that will be required to deliver the Services to allow instructions to be given and, if required, more funds to be pre-paid to cover the cost of the Services.
The Customer’s Obligations
4. The Customer shall:
4.1. Promptly pre-pay:
4.1.1. For website hosting, search engine optimisation support, Social Media Campaigns, and general internet marketing consultancy services for the period of the service which for the avoidance of doubt will be a minimum of three months for a new Social Media Campaign.
4.1.2. For Web site development:
126.96.36.199. 50% of the quoted fee on initially briefing Impact Automotive Pty. Ltd.;
188.8.131.52. 30% of the quoted fee on receiving a working prototype for testing and review; and
184.108.40.206. The balance of quoted fees and any fees for out of scope work before the web site is deployed for public access;
4.1.3. For PPC and PPL at least one month in advance;
4.1.4. In the event that a time sensitive result is required, the negotiated expedition fee.
4.2. Grant Impact Automotive Pty. Ltd. prompt access to:
4.2.1. management, executives and owners of the Customer as required to deliver the Services.
4.2.2. install tracking software on all their digital assets to allow better refinement of marketing.
4.3. Acknowledge that Impact Automotive Pty. Ltd.:
4.3.1. makes no promise regarding conversion rates and has offered to introduce the Customer to an expert in conversion rate optimisation if the Customer needs assistance with that aspect of their marketing.
4.3.2. Cannot control changes to Facebook or other social media marketplaces and accordingly is not able to guarantee results but by using its professional skills aims to deliver an incremental improvement of results experienced.
4.4. Upon receipt of the Services, test any functions created and provide feedback on any design and function testing undertaken within a timely manner and prior to deployment of any product generated by the Services created.
4.5. Assert no claim over any intellectual property rights relating to the Services (IP Rights) until any outstanding amounts, including for the avoidance of doubt any costs incurred by Impact Automotive Pty. Ltd. on behalf of the Customer, are paid.
4.6. Do all things reasonably required by Impact Automotive Pty. Ltd. to allow Impact Automotive Pty. Ltd. to reclaim all IP rights
4.6.1. In the event that any payments are recovered pursuant to insolvency or bankruptcy actions; and
4.6.2. Pending satisfaction in full of all amounts owing to Impact Automotive Pty. Ltd.
4.7. The customer agrees to indemnify and hold Impact Automotive Pty. Ltd. and any of its associates harmless from any claims resulting for the use of hosting services or material provided to Impact Automotive Pty. Ltd. for use in delivering the Services, including claims relating to damage to the Customer or to any other party.
4.8. In relation to web site hosting only:
4.8.1. Use of Servers
Customers should not attempt to access the sites of other Customers, and should not attempt to hinder the operation of our servers in any way. We reserve the right to refuse or cancel service to any Customer. All passwords must be kept confidential. The Customer may not make any password available to the public or to groups of people. This includes POP, FTP and Telnet passwords. You may not allow the public or groups of people to access any of your POP, FTP or Telnet accounts in any manner as this presents an unacceptable security risk.
4.8.2. Acceptable Content
The Customer’s site must not contain material, or contain any link to material, which is unlawful, pornographic, gambling-related, threatening, hateful, obscene or which encourages unlawful behaviour. This includes any site with depictions of nudity, as well as material relating to hacking or pirated software. Impact Automotive Pty. Ltd. has sole discretion to determine whether a site’s content is acceptable. Sites with unacceptable content will be removed from our servers.
4.8.3. Use of Disk Space
The Customer may not resell or give away disk space to any third party without written permission from Impact Automotive Pty. Ltd.. The Customer should set mail software to delete mail from the server once retrieved. This will speed up mail retrieval and will help avoid excess disk space requirements. It will also help to ensure that mail is not lost due to a mailbox being over quota.
4.8.4. Resource-Intensive Programs
If the Customer installs and runs a resource-intensive program on the servers there may be an additional monthly charge, or Impact Automotive Pty. Ltd. may prohibit execution of the program.
4.8.5. Spam (Unsolicited Bulk Email)
Spamming, or sending of unsolicited bulk email, from a Impact Automotive Pty. Ltd. server is strictly prohibited. Additionally, the Customer agrees not to use an email address or domain name which is hosted by Impact Automotive Pty. Ltd. to send unsolicited bulk email.
4.8.6. Technical Support
Impact Automotive Pty. Ltd. will provide unlimited technical support relating to the operation of the server and the use of the server’s facilities at no additional cost. Please note though that Impact Automotive Pty. Ltd. do not provide free support for problems with website code, or content, or databases, or designs and accordingly such requests for assistance will require that the Customer hold pre-paid credits for Impact Automotive Pty. Ltd.’s time and will be charged on an hour or part thereof basis.
4.8.7. Invoices and Payments
The Customer agrees that if a hosting payment is overdue then the account(s) may be suspended and/or removed from the Impact Automotive Pty. Ltd. servers without notice. Any breach of Impact Automotive Pty. Ltd. trading terms or overdue invoice payments will result in account suspension of Services.
4.8.8. Refusal of Service
Impact Automotive Pty. Ltd. reserves the right to refuse or cancel the Services at their sole discretion. If the Customer breaches any of the above terms and conditions, the Customer agrees that Impact Automotive Pty. Ltd. is permitted to deactivate and/or remove the account from the servers and charge at Impact Automotive Pty. Ltd.s normal service rate for any services required to provide copies of the data before service was refused.
Intellectual Property and Confidentiality
5. In the event that Impact Automotive Pty. Ltd. deliver images, text software or other data or information as part of the Services, Impact Automotive Pty. Ltd. warrants that:
5.1. It has all rights in the materials supplied and that inclusion of such materials for publication upon the website will not infringe the intellectual property rights of any third party; and
5.2. such materials are not unlawful.
6. In the event that the Customer or an agent of the Customer delivers images, text, software or other data or information for use in the Services, the Customer warrants that:
6.1. They have all rights in the materials supplied and that inclusion of such materials for publication upon the website will not infringe the intellectual property rights of any third party;
6.2. such materials are not unlawful;
6.3. such materials are not offensive or defamatory; and
6.4. to the extent that materials published on the website were in breach of the rights of any third party or offensive, defamatory or unlawful, the Customer shall indemnify Impact Automotive Pty. Ltd. and keep it indemnified against any claim, costs, demand or liability arising out of such publication.
7. Copyright in all work prepared under this Agreement remains with Impact Automotive Pty. Ltd., unless otherwise agreed in writing, until the Customer has, to the satisfaction of Impact Automotive Pty. Ltd., paid all invoices and copyright in all work licensed by Impact Automotive Pty. Ltd. for inclusion in any services is not transferred by this agreement.
8. Unless compelled to do so by law, the parties must not divulge any information concerning the other party including but not limited to business transactions, trade secrets, intellectual property, prices, price structures, operations, dealings, finances or affairs of the other party and shall not use or attempt to use any such information in any manner except as provided for by this Agreement. This restraint shall survive the termination of this contract and applies to all information which has not entered the public domain.
9. If default is made in the payment of any moneys due and payable to Impact Automotive Pty. Ltd., the Customer agrees to pay to Impact Automotive Pty. Ltd. in addition to any such money interest on the amount in default at a rate 3% above the rate for the time being prescribed under the Penalty Interest Rates Act 1983 computed from the date upon which those moneys became due and payable until the date on which they are paid in full, such sum not being a penalty, but a genuine predetermined estimate of damage in those circumstances. Payment will be credited first against interest accrued.
10. In the event of default of the Customer’s obligations under this agreement, the Customer irrevocably appoints Impact Automotive Pty. Ltd. or it’s agent as its attorney and authorises Impact Automotive Pty. Ltd. or it’s agent to disable the Website until such time as the default is rectified and for the avoidance of doubt, the Customer authorises Impact Automotive Pty. Ltd. to insert such software devices as Impact Automotive Pty. Ltd., in it’s sole judgement, determines are necessary to facilitate its rights under this clause.
11. The Customer hereby grants a charge over itself to Impact Automotive Pty. Ltd. securing any and all indebtedness under this Agreement. In the event of non-payment or default of payment of any amounts owed under this Agreement, the Customer authorises Impact Automotive Pty. Ltd. to issue any and all recovery proceedings available to it by law including, but not limited to, lodging a charge over the Customer securing the amount of the indebtedness, and/or issuing a statutory demand and winding up proceedings and the Customer acknowledges it shall be liable for Impact Automotive Pty. Ltd.’s recovery costs of the indebtedness. At any time following default of payment, the Customer acknowledges that Impact Automotive Pty. Ltd. may at its sole discretion appoint a receiver or controller pursuant to the charge created pursuant to this agreement.
12. In the event of any defect in the Services delivered pursuant to this Agreement, the liability of Impact Automotive Pty. Ltd. shall be limited to the maximum extent permitted by law. To the maximum extent permitted by the applicable law, any conditions or warranties imposed or implied pursuant to Australia Consumer Law or another legislation in respect of which liability may not be excluded. Insofar as liability may not be excluded then to the maximum extent permitted by law, such liability is limited at the exclusive option of Impact Automotive Pty. Ltd. to either:
12.1. replacement of the Services; or
12.2. correction of defects in the Services; or
12.3. the costs of having defects in the Services repaired.
13. Under no circumstances shall Impact Automotive Pty. Ltd. be liable for any direct or indirect or consequential loss or damage arising in any manner whatsoever out of the provision of the Services by the Customer or end user.
14. Except as may otherwise be provided by law, Impact Automotive Pty. Ltd. shall not be under any liability whether in contract, tort or otherwise for any injury, damage or loss, including consequential damage or loss whether to persons or property, arising out of this Agreement or the products supplied pursuant thereto including any defects therein or workmanship thereof.
15. Any act of bankruptcy or insolvency on the part of the Customer shall be deemed a breach of this agreement.
The parties agree that the terms of this Agreement may only be varied, modified or deleted by written agreement.
17. No Merger
The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
The waiver by any part of a breach or default of any provision of this Agreement by the other party is not to be construed as a waiver of any succeeding breach of the same or other provisions. Any delay or omission on the part of either party to exercise or avail itself of any right, remedy or power hereunder does not operate as a waiver of any breach or default by the other party.
In the event of any of the clauses of sub-clauses of this Agreement being held to be invalid or ineffective by any court for any reason whatsoever the agreement shall be construed and shall be binding on the Parties as if the offending clause, sub-clause, or condition has been deleted from the Agreement altogether.
A notice, demand, consent, approval or communication under the agreement must be
20.1. In writing, in English and signed by a person duly authorised by the sender; and
20.2. Hand delivered or sent by prepaid post to the recipients address for Notices specified in the Details, as varied by any notice given by the recipient to the sender
and is taken to be delivered:
20.3. If hand delivered, on delivery
20.4. If sent by prepaid post, two business days after the date of posting
but if the delivery is not on a day which is not a Saturday, Sunday which banks are open in Melbourne (a Business Day) or is after 5:00pm on a Business Day, the Notice is taken to be received at 9:00 am on the next Business Day.
21. Entire Agreement
This agreement contains all the (written or oral) agreements, arrangements, negotiations, discussions and understanding of the Parties relating to the subject matter of this agreement. This agreement supersedes any prior (written or oral) agreement, arrangement, negotiation, discussion or understanding between the Parties.
22. Oral Communications
No oral explanation or information provided by a Party to the other Party is to:
22.1. affect the meaning or interpretation of this agreement; or
22.2. constitute any collateral document, warranty or understanding between the Parties.
23. Governing Law And Jurisdiction
The law of this agreement is the law of Victoria. The Parties irrevocably and unconditionally submit themselves to the exclusive jurisdiction of the courts of Victoria and of all courts competent to hear appeals from those courts. The Parties waive any rights to any proceedings being brought in those courts. All proceedings arising in connection with this agreement must be issued in Victoria.
24. Enforcement Costs
All enforcement costs, including for the avoidance of doubt legal charges and internal clerical costs (charged at Impact Automotive Pty. Ltd.’s stated hourly rate) incurred by Impact Automotive Pty. Ltd. in regard to any action taken to enforce this Agreement and/or obtain overdue payments shall be born by the Customer on an indemnity basis.