RESURGE DIGITAL
STANDARD TERMS AND CONDITIONS
1. Definitions
In these Conditions, unless the context requires otherwise:
(a) Agreed Pricing means the prices and charges shown in the Contract Details Document (as amended from time to time in accordance with clause 6(e)).
(b) Conditions mean these Standard Terms and Conditions.
(c) Contract means the agreement between the Customer and Resurge Digital in relation to the Services, as evidenced by the Contract Details Document and these Conditions.
(d) Contract Details Document means the proposal document, online sign-up form or other document under which the Customer agrees to be bound by these Conditions or that incorporates these Conditions by reference (and which describes the relevant Services to be provided by Resurge Digital to the Customer and the associated Agreed Pricing for those Services).
(e) Customer means the party named as the customer in the Contract Details Document.
(f) GST means a tax, levy, duty, charge or deduction (together with any related additional tax, interest, penalty, fine or other charge) imposed by or under the GST Act.
(g) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(h) Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
(i) PPC means pay-per click.
(j) Privacy Act means the Privacy Act 1988 (Cth).
(k) Resurge Digital means Resurge Digital Pty Ltd ACN 633 712 302.
(l) Services means the services ordered by the Customer in the Contract Details Document that are to be provided to the Customer by Resurge Digital (which may include one or more of website design services, website hosting services, website maintenance services, social media marketing services, search engine optimisation services and/or PPC campaign management services using Google Ads or Microsoft Advertising).
(m) Termination Notice has the meaning given in clause 13.
(n) Third Party Services has the meaning given in clause 5.
2. Application of the Contract
(a) Unless otherwise agreed in writing, the Contract applies to all Services provided by (or on behalf of) Resurge Digital to the Customer.
(b) The Contract constitutes the whole agreement and understanding between Resurge Digital and the Customer in relation to the Services.
(c) If there is any conflict or inconsistency between the Contract Details Document and these Conditions, the Contract Details Document will prevail to the extent of that conflict or inconsistency.
3. Services
(a) From the date of formation of the Contract until the earlier of:
(i) Resurge Digital completing all work contemplated by the Services; and
(ii) The date that the Contract is terminated in accordance with these Conditions,
Resurge Digital will provide the Services to the Customer.
(b) Resurge Digital agrees to use reasonable endeavours to complete any parts of the Services in accordance with any applicable timetable agreed in the Contract Details Document (but subject to clause 4(b)).
(c) If the Services include web design services:
(i) If the Customer requests assistance in relation to designing or creating additional pages or content, adding additional features or third-party applications/integrations or setting up or modifying domain name server settings for any domain name used by the Customer (in each case, to the extent not contemplated by the Contract Details Document), then Resurge Digital reserves the right to charge additional fees (to be agreed with the Customer on a case by case basis and paid by the Customer upfront before the work on the requested task is commenced by Resurge Digital); and
(ii) After the date that the Customer is given control of the relevant website (Go Live Date), the Services will include up to 2 hours of training and reasonable assistance by Resurge Digital for 30 days after the Go Live Date in relation to the maintenance of the website and the installation of required plugin updates. After this 30-day period has ended, the Customer will be responsible for the maintenance and management of the website (including making changes to the website that are necessary for it to function as intended after any changes to the server, plugins or other integrations) unless the Services include an ongoing monthly website maintenance package for the website at the relevant time.
(d) If the Services include website hosting services, then Resurge Digital will cause the relevant website to be hosted on a dedicated instance of WordPress operating on a cloud server located in Australia and will be responsible for the maintenance and operation of the relevant server infrastructure and hardware upon which that instance is hosted. However, except to the extent provided for in clause 3(c)(ii) during the 30-day period after the Go Live Date, the Customer will be responsible for all maintenance and management of the features and functions within that instance (unless the Services include an ongoing monthly website maintenance package for the website at the relevant time). No website hosting services are provided by Resurge Digital for any websites that are hosted using the Shopify or Neto platforms (it being acknowledged and agreed by the Customer that those platforms are owned and operated by third parties and constitute “Third Party Services” for the purposes of clause 5).
(e) If the Services include Resurge Digital registering a domain name on behalf of the Customer, after the initial registration of the domain name by Resurge Digital (on behalf of the Customer) it will be the responsibility of the Customer to manage (including renewing registration for) and pay all fees associated with that domain name (and the ongoing management of that domain name will not form part of the Services).
(f) If the Services include social media marketing services:
(i) After any proposed content has been approved by the Customer, Resurge Digital will arrange for that content to be posted on the relevant social media platform(s) on behalf of the Customer unless the Customer revokes that approval in writing before it is posted; and
(ii) Resurge Digital will not be responsible for replying to posts or comments made on the relevant social media platform(s) by users of those platforms in response to posts or advertisements published on behalf of the Customer by Resurge Digital.
(g) If the Services include any PPC campaign management services, after the relevant campaign has been commenced in Google Ads and/or Microsoft Advertising, the Customer must provide 1 weeks’ written notice of any required change to (or cancellation of) the relevant campaign in order to allow Resurge Digital to revise and load (or remove) the campaign materials to/from Google Ads and/or Microsoft Advertising in a timely manner. Changing or cancelling a campaign is not the same as terminating the Contract (which can only occur in accordance with clause 13 of the Contract).
(h) If the Customer requests assistance in relation to any Services that are outside of the scope of the Services described in the Contract Details Document or requests that certain parts of the Services be performed sooner than contemplated by the Contract Details Document, then Resurge Digital reserves the right to:
(i) Charge additional fees to the Customer for those Services (with those additional fees to be agreed with the Customer prior to the provision of any out of scope Services); and/or
(ii) If the Services are charged to the Customer under a recuring monthly retainer, defer or delay the performance of other parts of the Services to subsequent months.
4. Customer input and responsibilities
(a) In order for Resurge Digital to perform the Services, the Customer must promptly provide Resurge Digital with:
(i) Any digital assets (including artwork, logos, video files, audio files and copy) that are necessary for Resurge Digital to perform the Services (unless Contract Details Document explicitly states that Resurge Digital is required to develop or source those digital assets as part of the Services);
(ii) Login details to any social media platforms, content management systems, payment gateways or other online platforms/systems that are to be used in connection with (or integrated with) the Services (unless the Contract Details Document explicitly states that Resurge Digital will setup and create those accounts on behalf of the Customer as part of the Services) and assistance to access any of these systems where multi-factor authentication is required;
(iii) A valid street address that can be attached to any PPC campaign forming part of the Services;
(iv) The details of a current and valid credit card to be used to pay the charges to Google and/or Microsoft for any PPC campaign forming part of the Services;
(v) Copies of any legal documents (such as terms and conditions, terms of use, returns/refunds policies and/or privacy policy documents) that are to be incorporated into any website, advertisement or social media campaign being developed as part of the Services; and
(vi) Any other instructions, authorisations or approvals reasonably requested by Resurge Digital from time to time.
(b) Resurge Digital reserves the right to extend (or delay) any agreed milestones or deadlines for delivery of the Services where any delay is caused or contributed to by the Customer failing to comply with clause 4(a). If the relevant Services are web design services and the relevant website has not been completed 4 months after the scheduled date for completion in the Contract Details Document as a result of delays caused or contributed to by the Customer failing to comply with clause 4(a), then Resurge Digital reserves the right to invoice the Customer for any remaining charges that would have been payable by the Customer under the Contract for completing that website (on the basis that Resurge Digital will have allocated staff and other resources to the project and will still incur the associated overhead costs during periods of delay).
5. Third Party Services
(a) Many third party services, applications, servers and sites (collectively, the Third Party Services) may be required to perform the Services, including:
(i) Third party website hosting platforms such as Shopify and Neto (together with plugins that integrate with those platforms);
(ii) Open source web hosting server software such as WordPress (together with the open source and/or proprietary plugins that integrate with WordPress);
(iii) Cloud server hosting environments and infrastructure such as those provided by Amazon AWS and Microsoft Azure;
(iv) Domain name registries and domain name servers;
(v) Payment gateway platforms such as PayPal, Stripe and Square;
(vi) Social media marketing platforms such as Facebook, Instagram, Snapchat and LinkedIn; and
(vii) Online advertising platforms such as Google Ads and Microsoft Advertising.
(b) The Third Party Services may have their own terms and policies, and the Customer’s use of them will be governed by those terms and policies.
(c) Resurge Digital does not have control of the Third Party Services, and to the maximum extent permitted by law, Resurge Digital is not liable for any Third Party Services or for the Customer’s use of any Third Party Services.
(d) Without limiting clause 5(c), Resurge Digital:
(i) Cannot adjust or provide detailed information on settings utilised by third party website hosting platforms or server hosting environments;
(ii) Cannot guarantee that software used to deliver the Services will remain error-free; and
(iii) Is not responsible for any changes made by Google or Microsoft to PPC marketing campaigns.
(e) The Customer must have its own account or licence to use the relevant Third Party Services and pay the cost for those Third Party Services (unless the Contract Details Document explicitly states that costs associated with the relevant Third Party Services have been included within the Agreed Pricing).
6. Agreed Pricing, invoicing and payment
(a) The Customer must pay Resurge Digital for the Services at the rates or amounts (and at the times) specified in the Agreed Pricing.
(b) Resurge Digital will issue tax invoices to the Customer setting out the fees and charges to be paid by the Customer.
(c) Resurge Digital may require that some payments be paid by the Customer in advance (including where Resurge Digital will incur third party costs of behalf of the Customer, such as hosting costs and licencing fees). Any advanced payments are not refundable to the Customer (unless otherwise provided in the Contract Details Document) as, in most instances, Resurge Digital will immediately incur costs and/or pay amounts to third parties that Resurge Digital does not receive any refunds for.
(d) Unless otherwise stated in the Contract Details Document, all Services that are provided and charged under a monthly retainer (including website maintenance services, social media marketing services, search engine optimisation services and/or PPC campaign management services) will be invoiced to the Customer in advance on the 15th day of the month (or the next business day if the 15th is not a business day) before the month in which the relevant part of the Services are to be provided (Service Month). If that invoice is not paid before the start of the Service Month, Resurge Digital may delay the relevant Services. If payment is received by Resurge Digital late (i.e. after the start of the relevant Service Month), then the scheduled work will be commenced by Resurge Digital within 10 business days of receiving that payment and the Customer acknowledges and agrees that a reduced scope of Services will be provided by Resurge Digital during the relevant Service Month as a result of the payment delay (and that the Customer will not be entitled to any discount or refund as a result).
(e) Resurge Digital may, in its absolute discretion, increase any part of the Agreed Pricing by providing the Customer with written notice of that increase (Pricing Notice). Unless the Customer notifies Resurge Digital otherwise, any new Agreed Pricing will be taken to have been accepted by the Customer and will become effective 30 days after the date that Resurge Digital delivers the Pricing Notice to the Customer, but acknowledging that the Customer may elect to terminate the Contract in accordance with clause 13.
(f) The Customer authorises Resurge Digital to deduct the required amounts:
(i) From any credit card or debit card provided by the Customer to Resurge Digital; or
(ii) By direct debit from any bank account nominated by the Customer,
and acknowledges and agrees that Resurge Digital may charge the Customer for any merchant fees that Resurge Digital incurs in connection with the relevant transaction. Credit card, debit card and direct debit payments will be processed on the 1st or 15th day of each month (or the following business day, if the 1st or 15th (as applicable) is not a business day).
(g) Any payment that bounces due to insufficient funds or incorrect account details being provided to Resurge Digital will result in an extra $50 administration fee being charged to the Customer (to cover bank charges and administrative costs incurred by Resurge Digital because of the bounced payment) and the Customer agrees to pay any costs and legal expenses of Resurge Digital arising from the collection of any overdue moneys from the Customer.
(h) The Customer acknowledges that Resurge Digital is incurring costs in order to provide the Services (including hosting costs, licence fees, staff costs and other overheads). If any amount due under the Contract remains unpaid 7 days or more after the due date for payment, then without limiting Resurge Digital’s other rights and remedies, Resurge Digital is entitled to do one or more of the following:
(i) Immediately suspend the Services;
(ii) Disable any website that is hosted as part of any website hosting services so that it is no longer accessible; and
(iii) Give the Customer a Termination Notice under clause 13(a).
7. Subcontracting
Resurge Digital may arrange for one or more other persons or companies to undertake some or all of the Services on behalf of Resurge Digital.
8. Limitation of liability
(a) Subject to the other provisions of this clause 8, and to the maximum extent permitted by law, Resurge Digital accepts no responsibility, and will not be liable to the Customer or any other person for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity or loss or damage relating to wasted management time, irrespective of whether that loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise, or Resurge Digital or any other person was previously notified of the possibility of that loss or damage.
(b) Any warranty, guarantee, condition, representation, undertaking or other right that would be implied in or otherwise required in connection with the Contract by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
(c) Notwithstanding the other provisions of this clause 8 and anything else in the Contract, Resurge Digital does not exclude, restrict or modify any warranty, guarantee, condition, representation, undertaking or other right under any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any part of the Contract to be void (Non-excludable Condition).
(d) Subject to the other provisions of this clause 8, the maximum aggregate liability of Resurge Digital for all proven losses, damages and claims arising out of the Contract, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to 3 times the sum of the amounts paid by the Customer to Resurge Digital under the Contract.
(e) To the maximum extent permitted by law, the liability of Resurge Digital for a breach of any Non-excludable Condition in respect of the Services is limited, at Resurge Digital’s option to:
(i) supplying the relevant Services again; or
(ii) payment of the cost of supplying the relevant Services again.
(f) Resurge Digital makes no warranty that the Services will generate an increase in sales, business activity or profits for the Customer.
9. Access and security
(a) If the Services include website hosting services, the Customer is responsible for maintaining the security of the Customer’s account(s) used to access and update the relevant website.
(b) The Customer agrees to immediately notify Resurge Digital in writing of any unauthorised use of the Customer’s account(s) or any other breaches of security.
(c) Resurge Digital will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation.
10. Intellectual property
(a) Resurge Digital acknowledges and agrees that any content (including text, photos, images, audio, video, code and other materials) supplied by the Customer to Resurge Digital belongs to the Customer or other third parties (Customer IP) and will remain the property of the Customer or the relevant third party.
(b) The Customer acknowledges and agrees that the Services may rely on (or incorporate):
(i) Intellectual Property Rights (including website templates, object code, source code and other materials) that belong to Resurge Digital (Resurge Digital IP); and
(ii) Intellectual Property Rights (including stock photos/videos, font packages, other artwork, website plugins and other object code and source code) that belong to third parties and that are required to be licenced by Resurge Digital and/or the Customer (Third Party IP).
(c) Where the Customer needs to use Third Party IP in order to use (or have the benefit of) the Services, then Resurge Digital will procure that the Customer has a valid licence to use that Third Party IP. The Customer acknowledges and agrees that it will be responsible for paying all fees and charges from the relevant third party for the licensing of the Third Party IP to the Customer (unless the Contract Details Document explicitly states that those fees and charges will be payable by Resurge Digital and form part of the Agreed Pricing).
(d) To the extent that the Services require Resurge Digital to create any new intellectual property specifically for the Customer (Developed IP), then that Developed IP will belong to the Customer (and form party of the Customer IP) and will automatically assign to the Customer on creation. However, to the extent that any such intellectual property incorporates (or is built upon) Resurge Digital IP or Third Party IP that pre-dated the creation of the Developed IP, then the portion that constitutes Resurge Digital IP or Third Party IP will remain the property of Resurge Digital or the relevant third party (as applicable).
(e) The Customer grants to Resurge Digital a non-exclusive, royalty-free worldwide licence (or sub-licence) to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes), communicate, publish, publicly display, publicly perform and distribute Customer IP during the term of the Contract for the limited purposes of allowing Resurge Digital to provide, improve, promote and protect the Services.
(f) Resurge Digital grants to the Customer a non-exclusive worldwide licence to use the Resurge Digital IP during the term of the Contract (and after the termination of the Contract to the extent permitted by clause 10(i)) for the sole purpose of using and operating any intellectual property provided by Resurge Digital to the Customer as part of the Services.
(g) The Customer is liable for (and must promptly reimburse Resurge Digital for) any expenses, charges and losses sustained by Resurge Digital as a result of any Customer IP breaching the Intellectual Property Rights of any other person, company or entity.
(h) Resurge Digital is liable for (and must promptly reimburse the Customer for) any expenses, charges and losses sustained by the Customer as a result of any Resurge Digital IP breaching the Intellectual Property Rights of any other person, company or entity .
(i) Promptly following the termination of the Contract (and provided that the Customer has paid Resurge Digital all amounts owing to Resurge Digital under the Contract at that time), Resurge Digital will provide the Customer with a compressed ZIP file containing the content of all artwork and digital assets that constitute Customer IP generated by Resurge Digital. Where the Services include website design services and/or website hosting services (in each case, using WordPress), Resurge Digital will also provide the Customer with an archived copy of the Customer’s website in a form that can be used by the Customer to migrate the website to another WordPress hosting environment (Website Archive). To the extent that the contents of any ZIP file or Website Archive delivered to the Customer under this clause contains any Resurge Digital IP, then Resurge Digital grants the Customer an irrevocable, non-exclusive, worldwide licence to use that Resurge Digital IP for its own business purposes in the future.
(j) Where the Services include website design services and/or website hosting services using a platform other than WordPress, then the Customer acknowledges and agrees that no Website Archive will be provided under clause 10(i) and the website may not be able to be migrated to another web hosting service without significant redevelopment by the Customer.
(k) The Customer acknowledges and agrees that Resurge Digital may use the Customer’s name in marketing and branding material produced by Resurge Digital.
11. Personal data privacy
(a) For the purposes of administering the Contract, the Customer consents to Resurge Digital collecting, using and disclosing personal information of or relating to the Customer in accordance with the Contract and the Privacy Act.
(b) The Customer acknowledges and agrees that the Customer’s personal credit information may be used and retained by Resurge Digital for any one or more of the following purposes (and any other purposes agreed between the Customer and Resurge Digital from time to time or otherwise required or permitted by law):
(i) the supply of Services by Resurge Digital;
(ii) the marketing of Services by Resurge Digital;
(iii) analysing, verifying and/or checking the Customer’s payments and/or status in relation to the supply of and payment for the Services; and
(iv) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer.
12. GST
12.1 Definitions
In this clause 12:
(a) the expressions Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and
(b) Supplier means any party treated by the GST Act as making a Supply under or in connection with the Contract.
12.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices (including the Agreed Pricing), charges, fees or other sums payable under or in connection with the Contract are exclusive of GST.
12.3 Payment of GST
(a) If GST is imposed on any Supply made under or in connection with the Contract, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply.
(b) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with the Contract.
13. Termination
(a) Subject to clause 13(d), either the Customer or Resurge Digital may terminate the Contract (in relation to some or all of the Services) by giving written notice to the other (Termination Notice), in which case the Contract (or the relevant part of the Contract) will terminate on the last day of the month following the month in which the Termination Notice is given.
(b) A Termination Notice given by the Customer under this clause 13 is effective only if all amounts due and payable to Resurge Digital at that time have been fully paid (except where Resurge Digital is in material breach of the Contract, in which case the Termination Notice will be effective regardless).
(c) On termination of the Contract for any reason, the Customer will not receive any refund of any fees or deposits that have been paid in advance by the Customer (except where Resurge Digital receives a refund of any third party costs incurred on behalf of the Customer, in which case only those refunded third party costs will be refundable to the Customer).
(d) If the Services include search engine optimisation services, then the Customer cannot terminate those Services during the first 12 months of Resurge Digital providing those Services unless Resurge Digital has breached this Contract and has not remedied that breach within 10 business days’ of receiving written notice from the Customer notifying Resurge Digital of the relevant breach (or if the relevant breach cannot be remedied).
(e) If the Services include PPC campaign management services, then the Customer cannot terminate those Services during the first 3 months of Resurge Digital providing those Services unless Resurge Digital has breached this Contract and has not remedied that breach within 10 business days’ of receiving written notice from the Customer notifying Resurge Digital of the relevant breach (or if the relevant breach cannot be remedied).
(f) If the Services include web design services and no deposit or other advanced payment has been paid by the Customer in relation to those Services and the Customer terminates this Contract before Resurge Digital has invoiced the Customer for any part of those Services, then Resurge Digital may invoice the Customer for an amount equal to the greater of:
(i) 10% of the total Agreed Pricing for completing the relevant website; and
(ii) $750,
on the basis that Resurge Digital will have commenced work on the Services (and therefore incurred costs) even prior to issuing any invoice.
(g) On termination of the Contract (or the relevant Services), any accounts with third party platforms that Resurge Digital operates (in its own name) on behalf of the Customer will be closed immediately. Where the Services include PPC campaign management services and campaigns are running at the time of termination and Resurge Digital has shut down those campaigns, the Customer must login to their own Google or Microsoft account to turn those campaigns back on.
(h) This clause 13 and clauses 2, 5, 6(c), 6(f), 6(g), 7, 8, 10, 11, 12 and 14 of these Conditions survive the termination of the Contract.
14. General
(a) Headings are used for convenience only and do not affect the interpretation of the Contract.
(b) Any notice to be given by a party under the Contract may be given personally, by post or by email.
(c) Words importing natural persons include partnerships, bodies corporate, associations, governments, and governmental and local authorities and agencies.
(d) References to “business days” mean days that are not Saturdays, Sundays or public holidays in Brisbane, Queensland.
(e) References to “business hours” means 9am to 5pm (Australian Eastern Standard Time) on business days.
(f) All monetary amounts referred to in the Contract are in Australian dollars.
(g) Wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”.
(h) If any provision of the Contract is or becomes invalid, void, illegal or unenforceable, then the validity, existence, legality and enforceability of the remaining provisions will not be affected.
(i) References to any legislation includes:
(i) any regulation, rule, by-law, ordinance, proclamation or judgment made under that legislation; and
(ii) that legislation as amended, consolidated, supplemented, re-enacted or replaced.
(j) A failure or delay by Resurge Digital in exercising any right conferred on Resurge Digital under the Contract does not operate as a waiver of the right.
(k) The Customer must not transfer, assign, create an interest in or deal in any other way with any of its rights under the Contract without the prior written consent of Resurge Digital.
(l) An obligation, covenant, warranty or representation given or entered into by more than one person binds them jointly and severally.
(m) The Contract is governed by and must be construed in accordance with the laws in force in Queensland, Australia. The Customer submits to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to the Contract.
