Skip to content

Engagement as Provider

  1. By electronically accepting this agreement (being the Proposal and these terms and conditions) or paying for the Services, the Client engages the Provider to provide the Services to the Client, and the Provider hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.
  2. The Provider’s engagement with the Client will:
  1. commence on the Start Date; and
  2. unless terminated earlier in accordance with this agreement, will continue:
  1. for Project Clients, until the Services are complete; and
  2. for Retainer Clients and Website Hosting Clients, indefinitely.
  1. The Provider is a service provider of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.  
  2. Pricing and invoicing
  1. The parties have agreed that the price for the relevant Services (exclusive of GST and Expenses) (the Fees) and invoicing and payment schedule will be as designated in the Proposal, which may include a total price payable in stages for Project Clients and a monthly fee for Retainer Clients and Website Hosting Clients.  The Provider will invoice the Client for all relevant Fees.
  2. The Client will pay all reasonable expenses properly and necessarily incurred by the Provider in the course of providing the Services, provided that the Provider obtains the Client’s consent before incurring the expense if the amount is not included in the Proposal.
  3. Client’s responsibilities
  4. The Client will:
  1. give the Provider timely and full instructions and other feedback when requested; and
  2. promptly advise the Provider of any changes to relevant personnel and contact details; and

acknowledges that the Fees have been set with an expectation that the Client will adhere to these requirements and a failure to do so may result in additional Charges being occurred, as notified in advance by the Provider.

  1. The Client is solely responsible for:
  1. the contents of their website and Paid Ads and may be held legally liable or accountable for those contents (including without limitation in connection with infringement of intellectual property rights of any other party);
  2. isolating software and information, executing anti-contamination software and otherwise take steps to ensure that software or information, if contaminated or infected, will not damage Client’s, Provider’s or Client’s users information or system.
  3. Payment
  4. Unless otherwise provided in the Proposal:
  1. for Retainer Clients and Website Hosting Clients, Fees are payable monthly in advance by direct debit and all invoices are immediately due and payable;
  2. for Project Client:
  1. 50% on entry into this agreement;
  2. 25% on provision of a link to the draft website to the Client; and 
  3. 25% on the Go-Live date or 14 days after the provision of the draft website to you, whichever is earlier.
  4. other Charges due under or in connection with this agreement must be paid by way of electronic funds transfer into the account nominated by the other party and invoices are payable within 7 days or receipt of the relevant invoice.
  5. Client must pay to the Provider all Charges properly invoiced pursuant to clause 2 in full.

  1. Without affecting its other rights and remedies under this agreement, where Charges, including relevant stage based Charges if set out in the Proposal, are outstanding, the Provider may: 
  1. postpone, pause or cancel delivery of Services; and 
  2. engage debt collectors to recover unpaid Charges and the Client will indemnify the Provider for any costs incurred.

  1. Retainer specific terms
  2. The Provider will endeavour to help the Client obtain its online goals by providing advice, information and technical services as described in the Proposal, however and without limitation to clause 10.4, the Client enters into this agreement at their own risk and acknowledges that the Provider’s Services may not: 
  1. lead to a particular commercial outcome; 
  2. generate any increase in sales, business activity or profits; 
  3. provide a certain return on investment or ranking; or 
  4. lead to any clicks to your business or other information.

  1. In accepting the terms of this agreement and providing credit card details, Retainer Clients also agree to the direct debit of Charges and the associated terms and conditions of Practice Ignition Limited available at: https://www.ignitionapp.com/terms

  1. The parties may agree to pause the Services, the running of Paid Ads (which the Provider will arrange) and associated Charges for no longer than 6 months with such agreement to be reached no less than 7 days prior to the next invoice and having confirmed the date the pause will end.  On the date the pause ends, the Services, the running of Paid Ads and associated invoice and billing activities will recommence.  Notice of termination pursuant to clause 11.2 can only be given after the pause has ended.

Paid Advertising specific terms

  1. The Client gives the Provider permission to access the Client’s Paid Ads account for the purposes of optimisation and management of the Client’s online business.

  1. If the Provider is setting up a Client’s Paid Ads account, the Client will provide timely assistance and acknowledges account set up may take up to a week or longer if further information is required from the Client.

  1. The Client acknowledges that while the Provider may have affiliations with Paid Ads platforms (for example, as a Google Partner and some team members being Google Certified Individuals), the Provider is a separate entity from Paid Ads platform.  The Client’s Paid Ads account with the relevant platform remains the Client’s property and responsibility at all times, including:
  1. Compliance with Paid Ads platforms’ terms and conditions; 
  2. To maintain the secrecy of your username and password and manage the use of the account using your username and password.  Should the Client become aware of a breach of security or unauthorised use of the Client’s username and password for an Paid Ads account, Client must notify the Provider immediately; and
  3. Costs payable directly from the Client to the Paid Ads Platform (for example per click fees for GoogleAds or Meta fees to boost posts).  Termination of this agreement does not automatically stop Paid Ads from running and the Client incurring costs with Paid Ads platforms.  If the Client would like the Provider to cancel advertising on termination, please notify the Provider in writing.  Alternatively, the Client can make arrangements directly with the Paid Ads platforms.

SEO specific terms

  1. The Provider’s Search Engine Optimisation services (SEO) are provided to the Client on an as is and as available basis, and any new features introduced that augment or enhance the services will be subject to this agreement.
  2. Project specific terms
  3. The Provider will endeavour to help the Client obtain its online goals by providing advice, information and technical services as described in the Proposal, however and without limitation to clause 10.4, the Client enters into this agreement at their own risk and acknowledges that:
  4. the Provider’s Services may not: 
  1. lead to a particular commercial outcome; 
  2. generate any increase in sales, business activity or profits; 
  3. provide a certain return on investment or ranking; and
  4. websites from the Provider cannot be used to disseminate, communicate, store or transmit:
  1. content sexually-explicit in nature;
  2. information that contains viruses, worms or malicious elements;
  3. copyright infringing data;
  4. trade secret protected data; 
  5. data that infringes on any intellectual property, publicity rights or privacy rights;
  6. is defamatory, harassing or threatening;
  7. relates to illegal business operations or schemes;
  8. contains deliberately misleading, incomplete or deceptive content; or
  9. is deemed inappropriate by The Web Showroom.
  10. Irrespective of anything set out in this agreement, the Provider may invoice for the final payment if the Services are complete other than that the Client has decided to delay or not proceed with the Go-Live.
  11. Website hosting and maintenance specific terms
  12. Without limitation to clause 10.4, Website Hosting Clients enters into this agreement at their own risk and acknowledges that:
  1. the Provider does not review, verify or otherwise certify or endorse the contents of Client’s website;
  2. websites hosted by the Provider cannot be used to disseminate, communicate, store or transmit:
  1. content sexually-explicit in nature;
  2. information that contains viruses, worms or malicious elements;
  3. copyright infringing data;
  4. trade secret protected data; 
  5. data that infringes on any intellectual property, publicity rights or privacy rights;
  6. is defamatory, harassing or threatening;
  7. relates to illegal business operations or schemes;
  8. contains deliberately misleading, incomplete or deceptive content; or
  9. is deemed inappropriate by The Web Showroom
  10. In accepting the terms of this agreement and providing credit card details, Website Hosting Clients also agree to the direct debit of Charges and the associated terms and conditions of Practice Ignition Limited available at: https://www.ignitionapp.com/terms
  11. Confidentiality and Intellectual Property
  12. Subject to the exceptions below, the parties agree to:
  1. keep all Confidential Information confidential;
  2. not copy or otherwise record, use or exploit any Confidential Information in any way except in the proper performance of the obligations in accordance with this agreement; and
  3. not disclose or make available any Confidential Information in whole or in part to any third party.
  1. A party may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
  2. Confidentiality obligations do not apply to information that was known on a non-confidential basis prior to receipt from the disclosing party, is or becomes generally available to the public in circumstances that do not constitute a breach of this agreement or which is required by law or court order to be disclosed.
  3. The parties agree that all Intellectual Property Rights in deliverables produced for the Client that the Provider makes or develops in the course of the provision of the Services (Relevant IP), will be owned by and vest in the Client. 
  4. On receipt of full payment of the Charges, the Provider assigns, transfers and conveys to the Client all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Client on and from creation.
  5. The Client acknowledges that any stock images incorporated in deliverables are not owned by the Provider and are not included within the Relevant IP and the Client may contravene usage rights by editing, resizing or reusing these images.  Provider will endeavour to assist Client to contacting image owners should Client wish to explore further licensing rights.
  6. The Provider may use and reproduce any Relevant IP and marketing data and analysis relevant to Services provided to the Client for the purposes of advertising and marketing its services.
  7. Non-disparagement
  8. On and from the date of this agreement, each party must not make a statement or other communication in any way (or solicit or encourage any other person to do so) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party and must take all reasonable steps to prevent its Representatives from doing so.  This clause does not apply to any statement or disclosure required by law or court order.
  9. Liability and remedies
  1. The Client irrevocably indemnifies and covenants to hold the Provider harmless from and against all Losses that may be suffered by the Provider which arise in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct of the Client.
  2. Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
  3. The Client acknowledges that internet services are inherently subject to technical failures and disruptions from time to time.
  4. To the maximum extent permitted by law, the Provider and its Representatives expressly:
  5. (Disclaimer of warranties)  disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.  Without limitation to the foregoing, the Provider and its Representatives make no representation, and provide no warranty or guarantee, that:
  1. the Client will achieve any particular results from the provision of the Services;
  2. any particular individuals will perform the Services on behalf of the Provider; or
  3. the Services will be:
  1. uninterrupted, error-free or that errors or defects will be corrected; or
  2. meet the Client’s requirements or expectations; or
  3. that any information made available from the Provider to the Client will:
  1. be free of infection by viruses, worms, Trojan horses or anything else manifesting contaminative or destructive properties; or
  2. not contain adult-oriented material or material which some individual may deem objectionable; or
  3. suitable to publish on the Client’s websites or in Paid Ads.
  1. (Force majeure) exclude liability for any damage and/or delay in the performance of any obligation of the Provider under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Provider; and  
  2. (Limitation of liability)  limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Provider under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Provider’s sole discretion):
  1. re-supply of the Services;
  2. payment of the costs of supply of the Services by a third party; or
  3. the refund of any amounts paid by the Client to the Provider under this agreement in respect to the Services,

even if the Provider has been advised of the possibility of such Losses,

and the Client acknowledges and agrees that the Provider holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

  1. Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 5 (Confidentiality and Intellectual Property), clause 9 (Non-disparagement) or clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.
  2. Termination
  1. If a party commits any material or persistent breach of this agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing.  If the Defaulting Party fails to remedy the breach within 20 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate this agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.
  2. For Retainer Clients:
  3. the Client may without limitation to its rights under clause 11.1 and after meeting with the Provider to discuss the proposed termination, terminate this agreement at any time by giving notice to the Provider and that notice will be effective:
  1. if the notice is given 14 days or more prior to the next invoice due date, the date prior to the next invoice due date;
  2. if the notice is given less than 14 days prior to the next invoice due date, one calendar month from the date of the next invoice. 
  3. the Provider may, without limitation to its rights under clause 11.1, terminate this agreement at any time by giving at least 14 days notice prior to the next invoice due date to the Client. 

  1. For Website Hosting Clients:
  2. the Client may without limitation to its rights under clause 11.1 and after meeting with the Provider to discuss the proposed termination, terminate this agreement, at any time after the date that is one year after the Start Date, by giving notice to the Provider and that notice will be effective:
  1. if the notice is given 14 days or more prior to the next invoice due date, the date prior to the next invoice due date;
  2. if the notice is given less than 14 days prior to the next invoice due date, one calendar month from the date of the next invoice. 
  3. the Provider may, without limitation to its rights under clause 11.1, terminate this agreement at any time by giving at least 14 days notice prior to the next invoice due date to the Client. 

  1. In the event of any termination of this agreement in any circumstances and for any reason whatsoever:
  1. the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and
  2. the Provider will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 3 will apply in respect thereof.
  1. Upon the cessation of the Provider’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, the Provider will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.
  2. Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
  3. The obligations of the parties under clause 5 (Confidentiality and Intellectual Property), clause 9 (Non-disparagement), clause 10 (Liability and remedies), clause 12 (Non-solicitation) and this clause 11 will survive the termination of this agreement.

  1. Non-Solicitation
  2. During the Provider’s engagement with the Client under this agreement and for each non-solicitation period (which means each of 3 months; 6 months; 9 months; 12 months) thereafter, the Client must not, without the Provider’s prior written consent (which the Provider may withhold or delay in its absolute discretion), directly or indirectly:
  1. (non-solicitation suppliers)  interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Provider and any of the Provider’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
  2. (non-solicitation of staff)  induce, encourage or solicit any of the Provider’s officers, employees, contractors or agents to cease their employment, engagement or agency with the Provider.
  3. The Client acknowledges and agrees that the restraints in this clause constitute several separate covenants and restraints, each of these is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Provider’s goodwill and business, the Client has received substantial and valuable consideration including its receipt of the Services and breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Provider’s goodwill and business and would lead to substantial loss to the Provider.
  4. Trustees
  1. Each trustee enters into this agreement only in its capacity as trustee of the relevant trust and in no other capacity, and no party may sue a trustee in any capacity other than as trustee of the relevant trust.
  2. All liabilities and obligations arising under or in connection with this agreement can be enforced against a trustee only to the extent to which it can be satisfied out of property of the relevant trust out of which the applicable trustee is actually indemnified for the liability.
  3. General

Further assurances

  1. Each party must promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

GST

  1. The terms used in the following clauses have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  2. You must pay to Gordon Digital any applicable taxes on a taxable supply made under this agreement, and other taxes or duties payable or payable by us in addition to any amounts owed under this agreement and in the same manner as making payment of any monetary consideration on which the tax is calculated.  
  3. Unless stated otherwise, any sum payable, or amount used in the calculation of a sum payable is exclusive of GST.

No set-off or deduction

  1. Unless otherwise agreed in writing, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever.

Notice

  1. A notice or other communication required or permitted to be given by a party to another must be in writing and sent to the other party’s last known email address.

Entire agreement

  1. This agreement contains the entire understanding between the parties and supersedes any previous arrangement, understanding or agreement relating to its subject matter. In case of inconsistency between these terms and conditions and the Proposal, the Proposal will prevail unless expressly provided otherwise.  

Amendment

  1. For Retainer Clients and Website Hosting Clients, this agreement (including Fees) can be modified at any time by the Provider.  Reasonable notice will be provided in writing.  You will be deemed to have accepted the variation with effect from the date of the Provider’s next invoice after you receive notice of the variation if you pay the invoice or continue to use the Services after your that invoice is delivered.
  2. Other than as set out in clause 14.8 above, this agreement may not be varied except in writing as agreed between the parties.

Assignment

  1. A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without giving prior written notice to the other party.

Subcontracting

  1. In delivering the Services, the Provider may use subcontractors, agents or other providers.

No waiver

  1. No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right or preclude any other or future exercise of it or of any other power or right under this agreement.

Severability

  1. If a provision of this agreement is invalid or unenforceable in a jurisdiction:
  1. it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
  2. that fact does not affect the validity or enforceability of, that provision in another jurisdiction, or of the remaining provisions.

Counterparts and electronic exchange        

  1. This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.  
  2. Delivery of an executed counterpart including via email, Ignition, Docusign or similar, in PDF or other image format will be equally effective as delivery of an original signed hard copy of that counterpart.

Governing law and jurisdiction

  1. This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Queensland, Australia.
  2. The parties irrevocably agree that the courts of Queensland, Australia have non-exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).
  3. Definitions and interpretation

Definitions

  1. The following definitions apply in this agreement unless the context requires otherwise:
  1. Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Brisbane, Queensland are open for business.
  2. Charges means Fees and Expenses.
  3. Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise; whether direct or indirect;
  4. Client means the party that will receive the Services as named in the Proposal.
  5. Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
  1. any information that is specifically designated by any of them as confidential;
  2. any information which, by its nature, may reasonably be regarded as confidential;
  3. any information relating to any:
  1. agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
  2. customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
  3. Intellectual Property Rights,

of any of them; and

  1. any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;
  2. negotiations in relation to, and the terms of, this agreement,
  1. whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible or any other form, relating to the Provider or any related entity of the Provider including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.
  2. Expenses mean the expenses of the Provider for which the Provider is entitled to be reimbursed by the Client pursuant to clause 2.2.
  3. Fees has the meaning given in clause 2.1.
  4. Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:

  1. liabilities on account of tax;
  2. interest and other amounts payable to third parties;
  3. legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and
  4. all amounts paid in settlement of any Claim.

Paid Ads means advertisements and other social media posts on platforms described in the Proposal which may include GoogleAds, Meta, TikTok, Pinterest and LinkedIn.

  1. Project means a project if that the type of engagement described in the Proposal, for example, a project for website development and Project Clients means those Clients who engaged the Provider to undertake a Project.
  2. Proposal means the document headed “Proposal” or similar setting out the scope of the Services and Fees as provided by the Provider to the Client.
  3. Provider means Gordon Digital Services Pty Ltd (ACN 612 769 114) acting as the trustee of the Gordon Digital Trust (ABN 36 734 904 007) trading as Gordon Digital.
  4. Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Retainer means the monthly Fee for Services if that the means of engagement described in the Proposal and Retainer Clients means those Clients who are paying a Retainer.

Services means the services provided by the Provider to the Client under this agreement, as set out in the Proposal.

Start Date means the date of this agreement or such other date as the parties may agree in writing.

Website Hosting Clients means those Clients who engaged the Provider to website hosting and maintenance services if that is the type of engagement described in the Proposal.

Interpretation

  1. The following rules of interpretation apply in this agreement unless the context requires otherwise:
  1. headings in this agreement are for convenience only and do not affect its interpretation or construction;
  2. no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
  3. all monetary amounts are in Australian currency; and
  4. a reference to a “liability” includes a present, prospective, future or contingent liability.

* * * *