These terms and conditions (“Terms”), together with the Loudmouse Pricing Proposal constitute a legally binding agreement between you (the Client) and Loudmouse Digital of 402 Rokeby Rd – Subiaco WA 6008 (“Loudmouse“), for the provision of website optimisation services, website production and online advertising services and/or other services set out in your Loudmouse Pricing Proposal (the “Services”) effective from the date the last party signs the Loudmouse Pricing Proposal OR starts using the Services.
The following definitions apply to this agreement (unless the context otherwise requires):
‘Agreement’ means these Terms, the Loudmouse Pricing Proposal and any documents, schedules or annexures referenced or incorporated into this agreement as amended from time to time;
‘Australian Consumer Law’ means the consumer protections set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time;
‘Loudmouse Pricing Proposal’ means the document titled the “Loudmouse Pricing Proposal” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Loudmouse, as agreed in writing by the Client and approved by Loudmouse.
‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.
‘Commencement Date’ means the date the Services are to commence as specified in the Loudmouse Pricing Proposal
‘Completion Date’ means the date the Services will cease as specified in the Loudmouse Pricing Proposal;
‘Confidential Information’ means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:
(a) is or becomes public knowledge other than by breach of this Agreement;
(b) is required to be disclosed by law;
(c) was known by the recipient as at the date of this Agreement;
(d) has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information; or
(e) is Data collected, stored, used and retained by Loudmouse in accordance with clause 2.3,
where the burden of establishing any of the exceptions referred to in (a) to (e) will be upon the recipient;
‘Data’ has the meaning given in clause 2.2.
‘Fee’ means the money payable to Loudmouse for the Services and any incidental costs as set out in Loudmouse Pricing Proposal.
‘Intellectual Property Rights’ or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
‘Material’ means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material.
‘Services’ means the services described in Schedule 1;
‘Services Material’ means any Material that is created during the performance of the Services but does not include the Client Content;
‘Special Conditions’ means the special conditions set out in the Loudmouse Pricing Proposal (if any);
Term and extension
1.1 This Agreement will commence on the Commencement Date and continue until the Completion date (the ‘Term”) unless terminated earlier in accordance with clause 24.
1.2 The parties agree that the Agreement will run for the Minimum Term in order to maximise the results and benefits of the Services. Should the Client wish to terminate the Services during the Minimum Term, it can do so in accordance with clause 24.1 noting however that Loudmouse reserves the right to charge a Cancellation Fee (or part thereof) in its absolute discretion.
1.3 The parties may choose to extend the Term for a further 12 months or as agreed by the Parties in writing. In absence of any further agreement, the term will automatically continue to a monthly agreement.
Provision of the Services
2.1 During the Term Loudmouse will:
(a) provide the Services to the Client with all due care and skill and in a professional manner;
(b) assist the Client in the establishment of a digital strategy in order to maximise the effectiveness of the Services;
(c) keep the Clients nominated contact(s) informed of the progress of the Services;
(d) inform the Client of any issues, which Loudmouse reasonably believes may impact on the provision of the Services; and
2.2 Provision of the Services may require the collection of website performance data (sourced from Google Analytics and other third-party service providers) which will include, but is not limited to:
(a) user number records, session number and session length details, conversion rates, goal completions, bounce rates, demographic and geolocation data, scroll depth, document downloads, error rates, page views, average time on page, exit percentage and raw data such as browser type, operating system type, network location and IP address; and
(b) any other performance data that may be reasonably required in connection with the provision of the Services, including keyword traffic volumes, search engine ranking data, call tracking records, advertising performance, customer lifetime value, and content performance (together, the “Data”).
2.3 The Client agrees that Loudmouse will, and permits Loudmouse to:
(a) collect, store and use Data pertaining to the Client during the provision of the Services for the purposes of providing the Services;
(b) retain any Data collected, stored and used pursuant to sub-clauses (a) and (b) above at Loudmouse’s discretion indefinitely or until such time as Loudmouse elects, in its sole discretion, to destroy such Data, for the purposes of Loudmouse’s internal analysis, use and review, provided that Loudmouse warrants and agrees not to disclose such Data to any third party or publicly without the prior authorisation of the Client.
2.4 Loudmouse reserves the right to collect and share aggregated data relating to the Client’s performance during their engagement with Loudmouse, including but not limited to, traffic and revenue growth by channel and date. Loudmouse uses this data to monitor and forecast Client’s performance. This data will remain anonymous to all persons other than Loudmouse employees.
3.1 The Client warrants that:
(a) it owns the rights or has the right to use the Client Content;
(b) it owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);
(c) its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure;
(d) has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content;
(e) it will check the integrity of the Client Content on a regular basis; and
(f) it will use its best endeavours to comply with its obligations under this Agreement.
3.2 Loudmouse does not take any responsibility for the Client Content and it is the Client’s sole responsibility to ensure the integrity of the Client Content.
3.3 During the term of this Agreement, the Client should:
(a) Provide all necessary information to Loudmouse upon request;
(b) Provide access to locations, systems and Infrastructure including relevant passwords and/or data required by Loudmouse in order to perform the Services;
(c) regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.
(d) provide other such access, documents, information or data as Loudmouse reasonably requires in order to perform the Services; and.
(e) comply with the terms and conditions of this agreement, including any Special Conditions set out in Schedule 1.
3.4 The Client agrees to comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of Loudmouse obstructs the nature and goodwill of the Services.
3.5 During the Term of this Agreement, Loudmouse may elect to electronically monitor the Services for adherence to these terms and may disclose to the extent permitted by law (and subject to our obligations of confidentiality) any content, records or electronic communication of any kind:
(a) As required by law;
(b) if such disclosure is necessary to perform the Services, or
(c) to protect the rights or property of Loudmouse.
3.6 The Client agrees to not duplicate, copy, reuse, sell, resell, or exploit any portion of the Services without express written permission from the Company.
Fee and Payment
4.1 The Fees for the Services are set out in the Pricing Proposal.
4.2 Unless otherwise indicated the Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to Loudmouse any GST relating to the Services.
4.3 Any disbursements incurred as a result of providing the Services will be reimbursed in full to Loudmouse upon submission of receipts to the Client.
4.4 If there is a change in the scope, timing or order of the Services, then Loudmouse will be entitled to additional payment of any amount which is reasonable in the circumstances.
Paid Advertising Management
5.1 Loudmouse will set up paid advertising campaigns and deliver paid traffic to the Client’s website. This can be from a variety of networks including Google, Facebook and Bing. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. Loudmouse is not to be held liable in this situation. When subscribing to remarketing services through Loudmouse, it is the responsibility of the Advertiser to ensure that relevant Privacy Laws and Policies (Google, Facebook) are in place regarding direct marketing.
5.2 Costs associated with media and clicks generated from running this service will be charged directly to the Client by the respective platform. The Client authorises Loudmouse to provide your credit card details to the advertising platform for this purpose. These fees will appear as separate charges on the Clients credit card statement.
5.3 The Client agrees that Loudmouse is not responsible or liable for any incorrect payments charged by third party advertising platforms. The Client agrees to communicate directly with the advertising platform should any incorrect charges be made on your nominated account by a third party advertising platform. Loudmouse agrees to provide its reasonable assistance to facilitate communication between the Client and advertising platforms should this situation arise.
5.4 If Loudmouse elects to use a paid platform account owned by the Client, changes to the account should only be made by Loudmouse staff. The Client can request changes to the account via the nominated Loudmouse account manager.
5.5 Please note that Loudmouse is not directly affiliated with Google™. All Google™ related services, claims and guarantees are performed and underwritten by Loudmouse.
Upload of Content to Customer Websites
6.1 Loudmouse will upload optimised content and tags to the Client’s website where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.
6.2 During the provision of the Services, the Client may provide Loudmouse with access to make changes to their website. However, the Client agrees that Loudmouse is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3. This excludes websites which have been developed by and still hosted with Loudmouse.
7.1 If website design services are provided as per our Pricing Proposal an approximate timing schedule will be provided. Failure to provide content or other items within the specified time will delay the setup of the website.
7.2 After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website is hosted by Loudmouse. In the event that the Client’s website goes down and it is hosted on a website server other than the Loudmouse server, we are not responsible for bringing the website back online.
Search Engine Optimisation (SEO)
8.1 Loudmouse will undertake the optimisation of the Client’s website as per best practise techniques used in the industry.
8.2 Although Loudmouse are specialists, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Clients website history, industry and many more factors. The Client agrees to release Loudmouse and any employee, owner, or director of Loudmouse from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
8.3 Loudmouse makes no guarantee the targeted phrases will move in a positive direction, especially if the targeted website has:
8.4 SEO services do not include the consultation required in the launching of a new website, on the domain being worked on. An additional fee will be payable for this service, which will be quoted prior to commencement of this consultation. Organic Search Marketing services are exempt of this fee.
9.1 Some of the Services may contain links to other websites (“linked websites”) which are not owned or operated by Loudmouse. Those links are provided for convenience only and may not remain current or be maintained. Loudmouse is not responsible for the content or the terms and conditions and privacy practices associated with linked websites.
9.2 Loudmouse’s links with linked websites should not be construed as an endorsement, approval or recommendation by Loudmouse of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless written and authorised endorsements have been made by Loudmouse in relation to those specific links, products and/or services.
10.1 Each party must at all times:
(a) maintain the secrecy and confidentiality of any Confidential Information of the other party;
(b) not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;
(c) refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and
(d) use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.
11.1 The Client agrees to comply with the Privacy Act 1988 (Cth) in its dealings with Loudmouse. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Loudmouse in connection with this Agreement. The Client indemnifies and keeps indemnified Loudmouse from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.
Ownership of Data and Services Material
12.1 No Background IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable license to use its Background IPR for the purposes of this Agreement. For the avoidance of doubt, the Client owns all IPR in the Client Content and grants Loudmouse a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.
12.2 All IPR in the Services Material is owned by Loudmouse upon creation. Subject to the payment of the Fee, Loudmouse hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.
12.3 The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.
12.4 The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.
12.5 The Client indemnifies, saves and holds Loudmouse harmless from any loss, liability, claim, damage or expense Loudmouse suffers or incurs as a result of the Client’s failure to comply with its obligations under this clause.
13.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Loudmouse’s control and could result in a breach of security. The Client hereby expressly waives any claim against Loudmouse arising out of the loss of data through corruption, piracy, and breach of security or for any other reason.
Warranties and Indemnities
14.1 Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
14.2 Subject to clause 14.1, any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.
14.3 Any liability Loudmouse may have for any failure to comply with a consumer guarantee imposed by the Australia Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at Loudmouse’s option) in the case of the Services:
(a) re-supplying the Services;
(b) paying the cost of re-supplying the Services
14.4 To the extent that Loudmouse’s liability cannot be or is not otherwise limited according to this clause 22, under no circumstances will Loudmouse’s total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Loudmouse by the Client under this Agreement.
14.5 The Client assumes sole responsibility for the use of the Services in its business operations and hereby indemnifies (and keeps indemnified) Loudmouse, its officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:
(a) the Client’s use of, or reliance on, any part of the Services and/or Services Material; or
(b) any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.
(c) a breach or failure to perform by the Client of its obligations under this Agreement; or
(d) any wilful, unlawful or negligent act or omission of the Client.
14.6 The Client’s liability under clause 14.5 will be reduced proportionately to the extent that Loudmouse’s negligent act or omission contributed to that loss or liability.
14.7 For the avoidance of doubt and to the fullest extent permitted by law, Loudmouse is not liable for:
(a) any special, indirect or consequential loss including (but not limited to) loss of opportunity and/or loss of profits, savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Material under this Agreement; or
(b) Any loss or damage suffered by the Client or any third party due to the Clients negligent or improper use or of the Services and/or Services Material.
14.8 Loudmouse is not responsible for URLs dropped or excluded from search engine results pages for any reason.
14.9 Loudmouse does not represent, warrant, or guarantee that the Client’s URLs will achieve a favourable position, or any position, in search engine results pages. Loudmouse cannot control or guarantee which, if any, search engines will accept the submission of the Client’s website. Loudmouse will not be responsible for delays or failure of performance resulting from internet service provider delivery problems or failure, or any communication or delivery problems associated with the Client’s order details, such as incorrect email address or URL address.
15.1 The parties must work in good faith to resolve any dispute between them arising from this Agreement.
15.2 Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/CEO or authorised delegate or equivalent of each party.
16.1 Each party may terminate this agreement by giving 30 days’ written notice to the other party.
16.2 Without limiting any other rights or remedies Loudmouse may have against the Client arising out of or in connection with this Agreement, Loudmouse may terminate the Agreement with immediate effect if the Client:
(a) Commits a serious breach of this Agreement including (but not limited to) posting offensive material or material promoting or suggestive of illegal or criminal activity;
(b) the Client breaches a provision of this Agreement and fails to remedy the breach within 30 days of receiving notice to do so; or
(c) the Client becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
16.3 A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.
17.1 Loudmouse is an independent contractor and not an employee or agent of the Client.
17.2 The manner of performance of the Services will be at all times within the judgement and discretion of Loudmouse.
17.3 Neither Loudmouse nor any employee, contractor, representative, agent of Loudmouse will by virtue of this Agreement be deemed to be an employee of the Client.
17.4 The parties to this Agreement will not be or be deemed to be in any partnership, collaboration or joint venture and neither party will hold itself out as being in any way a partner or joint venturer of the other party and neither party will pledge the credit or warrant the authority of the other party.