1. Definitions
“Agreement” means the agreement which is governed by these Terms and Conditions
“Associated Documents” means any documents created by Mink Media on the reading of which contains terms which relate to the relationship between Mink Media and its Customer.
“Customer” means the person who engages the Services of MINK 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” means pay per click services and products such as Google Adwords, Bing that MINK MEDIA may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto.
“MINK MEDIA” means MINK MEDIA Pty Ltd or any other related entity or company trading under the MINKMEDIA.com.au brand name.
“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 Mink 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 MINK MEDIA’s Terms and Conditions or by any other form of written communication:
2.1.2 by placing an order with MINK MEDIA or instructing MINK MEDIA to provide the Services after:
(a) MINK MEDIA’s Terms and Conditions received by the Customer; or
(b) the availability of MINK MEDIA’s Terms and Conditions on MINK MEDIA’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
2.2 The Terms and Conditions comprise the terms in MINK MEDIA’s Terms and Condition read in conjunction with the Customer proposal , Schedule to Customer Proposal and Associated Documents if any and where there is a conflict between MINK MEDIA’s Terms and Conditions and the other contractual documentation created by MINK 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 MINK MEDIA’s Terms and Conditions;
2.2.4 Associated Documents.
2.3 Where there are PPC Services provided by Mink 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 MINK 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 MINK 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 provide MINK MEDIA with such access to the Website and to provide all necessary assistance to enable MINK MEDIA to change and modify the Website which is reasonably required to enable MINK MEDIA to provide the Services safely in accordance with the Agreement;
2B.1.4 make available as soon as is reasonably possible to MINK MEDIA all material required to complete the Services;
2B.1.5 notify MINK 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 MINK MEDIA.
3. Performance Levels
3.1 The Customer acknowledges that:
3.1.1 MINK MEDIA is unable to guarantee improved rankings in Australia’s major search engines;
3.1.2 MINK MEDIA is unable to guarantee improved traffic to the Customer’s website(s).
3.1.3 MINK MEDIA makes no warranty that the Services will generate any increase in sales, business activity, profits or any other form of improvement for the Customer’s business or any other purpose;
3.2 The use of the MINK MEDIA Services is at the Customer’s own risk.
3.3 MINK MEDIA reserves the right to add links to clients sites and web 2.0 assets for its own marketing purposes.
3.4 MINK MEDIA leverage Google Tag Manager to install MINK MEDIA conversion tracking code into your site for enhanced tracking, this remains the property of MINK MEDIA. Base Pixels e.g. Google Analytics/Facebook Pixel etc may need to be re-installed following cessation of services.
3.5 MINK MEDIA will endeavor to ensure that any development/design site or application will function correctly on the server 2 which it is initially installed on when viewed with the latest version of the web browsing software Microsoft Internet Explorer or Mozilla browsers or Chrome browsers. MINK MEDIA can offer no guarantees of the correct functioning with all browsers.
3.6 MINK MEDIA operate & install premium plugins and services to support our efforts, these tools are licensed by MINK MEDIA and will be removed from service on cancellation of our service.
3.7 MINK MEDIA endeavor but can not Guarantee to ensure digital assets are fully associated with the business through a business email or generic email service.
4. Exclusion of Liability of Mink Media
4.1 To the fullest extent permissible by law, MINK 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 MINK MEDIA or otherwise. Where liability cannot be legally excluded, the liability of MINK MEDIA shall be limited to the cost of supplying the Services again.
4.2 The Customer agrees to indemnify MINK 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 MINK 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 MINK MEDIA or otherwise including any claims arising from or in connection with the Customer’s information and the Customer’s use of MINK 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 MINK 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;
4.3.7 the use or the results of the use of the materials available through the MINK 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 MINK MEDIA;
4.3.9 the functioning of any software created for the Customer whether database, e-commerce applications or otherwise;
4.3.10 unavailability, malfunction or interruption of services; and
4.3.11 changes made by MINK MEDIA to the Customer’s website.
4.3.12 MINK MEDIA are not responsible for data management, back ups or retention of campaign data outside of Google Analytics, Facebook Ad Accounts or Google AdWords accounts. Within these accounts the publishers maintain this data not MINK MEDIA.
4.4 MINK 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 MINK 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 Upon acceptance of the Terms and Conditions, the Customer is liable to pay the total monthly amount within 15 days for MINK MEDIA’s Services. However, MINK MEDIA may agree at its sole option to accept in lieu of payment of the total amount, 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.
5.2 If additional work is performed by MINK 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 an algorithm penalty or by changes made to the website by a third party, MINK MEDIA may make a reasonable additional charge for the additional work performed by it.
5.3 In the event that the Customer fails to make payment of MINK MEDIA invoices, without prejudice to any other rights MINK MEDIA has, interest will accrue at the rate of 2% per month on any outstanding amount and the Customer indemnifies MINK 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 MINK MEDIA.
5.4 MINK 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 MINK MEDIA for the period of 30 days;
5.5 There are no refunds available on Services by MINK MEDIA.
5.6 All MINK MEDIA charges will be invoiced monthly
5.7 All media spend will be paid directly to the publishers
5.8 If the Customer disputes an invoice including disputing an item in an invoice, the Customer must notify MINK 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 MINK MEDIA’s trading terms, failing which the Customer waives all rights to dispute the invoice at a later date.
5.9 Payments over 90 days will be handed over to our third party debt collectors. Additional fee’s may be added at this stage.
6. Termination
6.1 Subject to clause
6.2, Both MINK 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 MINK MEDIA may give the Customer written notice of variation of the Agreement (including the fees and charges of MINK 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 MINK 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 MINK 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 MINK MEDIA does give such notice, the Customer must pay MINK MEDIA the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
7. Mink Media’s Rights
7.1 Any remedy of MINK MEDIA under these Terms and Conditions is in addition to and not in substitution for any remedy which MINK MEDIA has in law.
7.2 If the Customer unlawfully terminates, MINK MEDIA can remove data or other matters which it placed on the Website.
7.3 Any scripts, cgi applications or software (unless specifically agreed) written by MINK MEDIA remain the copyright of MINK MEDIA and may only be commercially reproduced or resold with the permission of MINK MEDIA.
8. Privacy
8.1 The Customer agrees that the Customer’s personal data may be used and retained by MINK 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 unauthorized use or disclosure to any unauthorized 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 Victoria and the parties hereto agree to submit to the non exclusive jurisdiction of the courts of Victoria. 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 MINK MEDIA can assign it 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 MINK MEDIA.
PPC Terms
This schedule provides additional specific terms and conditions for the provision of PPC Services by MINK 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 PPC Services by MINK MEDIA to the Customer.
Fees
2.1 The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2.2 There is an additional first month fee plus GST payable for setting up the account as a one off charge
2.3 Monthly fees will be fixed as per proposal or package selected and only adjusted if the campaign package either broadens or narrows
MINK MEDIA will offer a managed Adwords service with the following provisions:
3.1 MINK MEDIA will utilise an existing or setup a new Adwords account for the Customer associated with the companies domain name.
3.2 MINK MEDIA will have joint access of the Adwords account and will link to a Google campaign manager and Mink Medias Agency Client centre.
3.3 MINK MEDIA will provide the Customer via Google Analytics and Raven tools with access 24/7 to reporting and regular monthly automated performance reports.
3.4 MINK MEDIA will endeavour to spend the predetermined Google click cost budget each month. MINK MEDIA will not be liable for any under or over spend.
3.5 The Customer is liable for all Adwords charges generated from the Adwords account.
Payment
4.1 All fees are payable within 15 days
4.2 All fees including Click costs payable to Google shall be paid by the Customer directly by credit card in the adwords account:
Termination of service at any time with 30 days notice, to terminate the PPC services, 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.
