Terms and Conditions of Marketing One Group Pty Ltd (ABN: 99 675 415 924)

These Terms of Service (“Terms”), are entered into by and between Marketing One Group Pty Ltd (ABN: 99 675 415 924) and or its associates, related parties, successors and assigns (collectively referred to as ‘Provider’) and the Client. You also accept the Terms of Service when you undertake any Google Ads campaign or service.

By using the website and its Google Ads services, products, and software (collectively, the “Site”), you agree to be bound by these terms (“Conditions of Trade”). You also accept the Conditions of Trade when you create an account, sign in as a guest, or log in to the Site. We may make changes to the Site and Conditions of Trade. It is your responsibility to review the Conditions of Trade for updates and changes. This document forms part of The Agreement. It needs to be read in addition the Scope and / or Quote as per the Proposal presented.

Effective from 1 November 2016

MARKETING ONE TERMS & CONDITIONS GOOGLE ADS

The following terms relate to the supply of Google Ads Management services (“the Services”) by “the Company” to the “Client” for the “Website”.

1. The Company agrees to provide the Client with the Services and is authorised to use Key Phrases, bidding strategies and optimisation as determined by the Company, to attempt to improve the search presence of the Website within the Google Search results.
2. The client acknowledge Marketing Ones and agrees that:
3. If work is delayed or campaigns offline through no fault of the Company, no refund or compensation will be offered.
4. Monthly management fees are prepaid.
5. Payment of the Initial Set Up Fee or retaining of Marketing One Group’s services does not create any rights of ownership or other proprietary rights in any Google Ads account or any other services provided to you by Marketing One Group pursuant to these Terms.
6. If monthly management fees are overdue, campaigns will be paused until payment is made and no refund or compensation will be offered.
7. There are no guarantees on campaign performance made by the Company
8. It is the responsibility of the client to post a privacy policy on the website and comply with such privacy policy. The privacy policy must comply with all applicable laws. The client shall ensure that the privacy policy does not contain provisions that are inconsistent with the nature of the services being provided by the “company”. The client understands and acknowledges that failure to maintain a privacy policy that complies with the foregoing requirements may (a) result in the services not being run or being suspended and (b) expose the client and the company to liability which you shall fully indemnify the company for.
9. The Client agrees that this agreement shall continue on a month by month “term”, to the value as detailed in this agreement. Either party may terminate this agreement by giving each other 30 days written notice. In the event that the client terminates the Company’s services, the next Monthly Management Fee is due to be paid in full if it falls within the notice period.
10. There are no refunds available on services provided by the Company.
11. Payment Default:
    a) If the Client defaults in payment by the due date of any amount payable to Marketing One then Marketing One may, without any prejudice to any other remedy available to it:
    i. charge the Client for, and the Client must indemnify Marketing One against, all costs and expenses (including without limitation all legal and debt collection costs and expenses) incurred by Marketing One resulting from any default, in taking any action to enforce compliance with the Terms;
    ii. cease or suspend all Works until full payment is made; and
    iii. unless alternative arrangements are agreed to by Marketing One in writing, Marketing One may by prior written notice to the Client, terminate this Agreement where the default in payment subsists for more than fourteen (14) days

12. Early Cancellation and Pre-Service Costs:

    1. Early Cancellation Policy: In the event that the Client wishes to cancel the service agreement prior to the commencement of the live campaign, the Client acknowledges and agrees to compensate the Service Provider for any and all preparatory work and incurred costs. This includes, but is not limited to, the following:
       • Call tracking setups
       • Landing page setups
       • Connection & configuration of Google Analytics
       • Conversion tracking setups
       • Initial setup of ad campaigns
       • Strategy development
    2. Compensation for Preparatory Work: The Client agrees that any cancellation request prior to the launch of the live campaign will result in a minimum charge equivalent to one month’s service fee. This fee is intended to cover the costs and time invested by the Service Provider in preparing the campaign, as detailed above.
    3. Acknowledgment of Terms: By entering into this agreement, the Client acknowledges and agrees to these terms, and understands that the compensation for early cancellation is a fair and reasonable estimate of the damages and costs incurred by the Service Provider due to such cancellation.
    4. Non-Refundable Fees: Any fees associated with preparatory work, including but not limited to domain registration and call tracking setup, are non-refundable.
13. Ownership of Google Ads Account:
    As part of our services, Marketing One Group will create a new Google Ads account under Marketing One Group’s Master Client Centre (MCC) for each client. Marketing One Group always retains full ownership of the MCC and the Client’s Google Ads account, including but not limited to all associated data, performance metrics, and configurations. The client will have access to view the Google Ads performance through read-only access via Marketing One Group’s Agency Analytics reporting portal. Read-only access is granted by Marketing One Group for the duration that Marketing One Group provides services to the Client. Upon termination of services for any reason, Marketing One Group will retain full ownership of the Google Ads account established for the Client and the Client’s access to the Google Ads account, reporting dashboard and any data contained within it will cease. Marketing One Group reserves the right to delete the Google Ads account at any time from the date services are terminated for any reason.
14. This agreement is subject to the jurisdiction of all states within Australia and the parties irrevocably submit to the jurisdiction of the courts.
15. The Client may not offer any form of employment to Marketing One’s staff whilst using the Company services, or within 12 months of ceasing services.
16. Reporting is provided via 3rd Party Reporting Tools and is available at any time to the client.
17. Any tracking telephone numbers remain property of the company

Limitation of Liability

The services and the work product of Marketing One are sold “as is.” In all circumstances, the maximum liability of its Designers, Developers, Directors, Officers, Employees, Design Agents and Affiliates (“Marketing One parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project. In no event shall Marketing One be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Marketing One even if Marketing One has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy. Once the project has, in the opinion of Marketing One been completed, Marketing One will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to thoroughly review the project. It is the CLIENT’S responsibility to check carefully for accuracy in all respects, ranging from spelling, product/service information and contact details. Whilst we take all care in ensuring accuracy of all information, Marketing One is not liable for errors or omissions. The CLIENT indemnifies Marketing One against any loss or damage arising directly or indirectly from any errors and omissions.

Advertising Program Terms – Google

These Advertising Program Terms (“Terms”) are entered into by Google Australia Pty Ltd (“Google”) and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Google’s advertising programs and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that reference or are referenced by these Terms (collectively, “Programs”). In consideration of the foregoing, the parties agree as follows:

1 Programs. Customer authorizes Google and its affiliates to place Customer’s advertising materials and related technology (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by Google or its affiliates on behalf of itself or, as applicable, a third party (“Partner”). Customer is solely responsible for all: (i) Creative, (ii) Ad trafficking or targeting decisions (e.g., keywords) (“Targets”), (iii) Properties to which Creative directs viewers (e.g., landing pages) along with the related URLs and redirects (“Destinations”) and (iv) services and products advertised on Destinations (collectively, “Services”). The Program is an advertising platform on which Customer authorizes Google or its affiliates to use automated tools to format Ads. Google and its affiliates may make available to Customer certain optional Program features to assist Customer with the selection and generation of Targets and Creative. Customer is not required to authorize use of these optional Targeting and Creative features and, as applicable, may opt-in to or opt-out of usage of these features, but if Customer uses these features then Customer will be solely responsible for the Targets and Creative. Google or Partners may reject or remove a specific Ad or Target at any time for any reason. For example an Ad or Target may be rejected or removed by Google if it violates the Policies or if Google believes the Ad or Target would expose Google or a Partner to liability. Google and its affiliates may modify or cancel Programs at any time. Customer acknowledges Marketing Ones that Google or its affiliates may participate in Program auctions in support of its own services and products. Some Program features are identified as “Beta,” “Ad Experiment,” or as otherwise unsupported or confidential (collectively, “Beta Features”). Customer may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features.

2 Policies. Customer is solely responsible for its use of the Programs (e.g., access to and use of Program accounts and safeguarding usernames and passwords) (“Use”). Program Use is subject to applicable Google policies available at www.google.com/ads/policies and all applicable Partner policies made available by Google to Customer (in each case, as modified from time to time, “Policies”). Some frequently asked Policy questions are answered by the following Policies: the Google Privacy Policy available at www.google.com.au/privacy.html; the Advertising Cookies Policy available at www.google.com/ads/cookies; and the Trademark Guidelines available at www.google.com.au/permissions/guidelines.html. In connection with the Program, Google will comply with the Google Privacy Policy. Customer authorizes Google or its affiliates to modify Ads as described in Policies. Customer will not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions, (ii) conceal conversions for Programs where they are required to be disclosed or (iii) use any automated means or form of scraping or data extraction to access, query or otherwise collect Google advertising related information from any Property except as expressly permitted by Google. Customer will direct communications regarding Ads on Partner Properties under these Terms only to Google.

3 Ad Serving. (a) Customer will not provide Ads containing malware, spyware or any other malicious code or knowingly breach or circumvent any Program security measure. (b) Customer may utilize an Ad server solely for serving or tracking Ads under Programs that permit third party Ad serving and only if the Ad server has been authorized by Google to participate in the Program. Google will implement Customer’s Ad server tags so that they are functional. (c) For online display Ad impressions billed on a CPM basis (“Display Ads”), if Google’s impression count (“IC”) for a Program is higher than Customer’s third party Ad server (“3PAS”) IC by more than 10% over the invoice period, Customer will facilitate reconciliation efforts between Google and 3PAS. If this discrepancy is not resolved, Customer must make a claim within 60 days after the invoice date (“Claim Period”). If Google determines that the claim is valid then, subject to Section 8(b), (i) Google will issue to Customer advertising credits equal to (90% of Google IC – 3PAS IC) multiplied by Google-reported campaign average CPM over the invoice period which must be used by Customer within 60 days of issuance of the credits (“Use By Date”) and (ii) Google may suspend Customer’s permission to utilize that 3PAS provider and the effectiveness of the discrepancy resolution provisions of this Section for that 3PAS provider. Metrics from 3PAS whose Ad server tags are provided to Google will be used in the foregoing discrepancy resolution calculations. Google may require that discrepancy records be provided directly by 3PAS to Google. Customer will not be credited for discrepancies caused by 3PAS’ inability to serve Ads.

4 Ad Cancellation. Unless a Policy, the Program user interface or an agreement referencing these Terms (an “IO”) provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Customer cancels an Ad after a commitment date provided by Google (e.g., a reservation-based campaign), then Customer is responsible for any cancellation fees communicated by Google to Customer (if any) and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO, and Customer remains obligated to pay all charges resulting from served Ads (e.g., fees based on conversion). Customer must effect cancellation of Ads (i) online through Customer’s account if the functionality is available, (ii) if this functionality is not available, with notice to Google via email to Customer’s account representative or (iii) if Customer does not have an account representative, with notice to Google via email to [email protected] (collectively, the “Ad Cancellation Process”). Customer will not be relieved of any payment obligations for Creative not submitted or submitted by Customer after the due date provided by Google. Google will not be bound by a Customer provided IO.

5 Warranty and Rights. Customer warrants that (a) it holds, and hereby grants Google, its affiliates and Partners, the rights in Creative, Destinations and Targets for Google, its affiliates and Partners to operate the Programs and (b) all information and authorizations provided by Customer are complete, correct and current. Customer authorizes Google and its affiliates to automate retrieval and analysis of Destinations for the purposes of the Programs. Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, third parties, if any, for which Customer advertises in connection with these Terms (“Advertiser”). If for any reason Customer has not bound an Advertiser to these Terms, Customer will be liable for performing any obligation that the Advertiser would have if it had been bound to these Terms. Customer will provide Advertiser with reporting data as frequently as existing reporting from Customer to Advertiser, but no less than on a monthly basis, that discloses absolute dollars spent on Google and performance (at a minimum cost, clicks and impressions of users on the account of that Advertiser) in a reasonably prominent location. Google may, upon request of an Advertiser, share Advertiser-specific information with Advertiser. If Customer is using a Program on its own behalf to advertise and not on behalf of an Advertiser, for that use Customer will be deemed to be both Customer and Advertiser.

6 Make-Goods. For reservation-based Display Ads, Google will deliver any agreed upon aggregate number of Display Ads by the end of the campaign. If Google fails to do so, then subject to Section 8(b), any Customer disputing payment made to Google for such Display Ads must make a claim during the Claim Period. If Google confirms the accuracy of the claim, then Google will not charge Customer for the undelivered Display Ads or, if Customer has already paid, at Google’s reasonable discretion and subject to Section 8(b), Google will provide for (i) advertising credits, which must be used by the Use By Date, (ii) later placement of the Display Ads in a comparable position or (iii) an extension of the term of the campaign. Google cannot assure that any auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.

7 Payment. Customer will pay all charges incurred in connection with the Program, in immediately available funds or as otherwise approved by Google, within a commercially reasonable time period specified by Google (e.g., in the Program user interface or IO). Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and attorneys’ fees Google incurs in collecting late payments. Charges are solely based on Google’s measurements for the Programs and the applicable billing metrics (e.g., clicks or impressions). Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms. Google may, in its sole discretion, extend, revise or revoke credit at any time. Google is not obligated to deliver any Ads in excess of any credit limit. If Google does not deliver Ads to the selected Targets, then subject to Section 8(b), Customer must make a claim for advertising credits within the Claim Period, after which Google will issue the credits following claim validation which must be used by the Use By Date. Customer understands that third parties may generate impressions or clicks on Customer’s Ads for prohibited or improper purposes and that if this occurs, subject to Section 8(b), Customer must make a claim for advertising credits within the Claim Period, after which Google will issue the credits following claim validation which must be used by the Use By Date. TO THE FULLEST EXTENT PERMITTED BY LAW, ADVERTISER AND CUSTOMER WAIVE ALL CLAIMS RELATING TO ANY PROGRAM CHARGES UNLESS A CLAIM IS MADE WITHIN THE CLAIM PERIOD.

8 Disclaimers. (a) TO THE FULLEST EXTENT PERMITTED BY LAW AND SUBJECT TO 8(b) BELOW, EACH PARTY ON BEHALF OF ITSELF AND ITS AFFILIATES EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW AND SUBJECT TO 8(b) BELOW, THE PROGRAMS AND GOOGLE, ITS AFFILIATES, AND PARTNER PROPERTIES ARE PROVIDED “AS IS” AND AT CUSTOMER’S AND ADVERTISER’S OPTION AND RISK AND NONE OF GOOGLE, ITS AFFILIATES OR GOOGLE’S PARTNERS MAKE ANY GUARANTEE OR REPRESENTATION IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS. (b) CERTAIN LAWS OF THE JURISDICTION IN WHICH CUSTOMER RESIDE, SUCH AS THE AUSTRALIAN CONSUMER LAW, MAY CONFER RIGHTS AND REMEDIES AND IMPLY TERMS INTO THESE TERMS THAT CANNOT BE EXCLUDED. THOSE RIGHTS, REMEDIES, AND IMPLIED TERMS ARE NOT EXCLUDED BY THESE TERMS. TO THE EXTENT THAT THE RELEVANT LAWS PERMIT GOOGLE TO LIMIT THEIR OPERATION, GOOGLE’S LIABILITY UNDER THOSE LAWS WILL BE LIMITED AT ITS OPTION, TO THE SUPPLY OF THE SERVICES AGAIN, OR PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

9 Limitation of Liability. EXCEPT FOR SECTION 10 AND CUSTOMER’S BREACHES OF SECTIONS 3(a), 12(d) OR THE LAST SENTENCE OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW BUT ALWAYS SUBJECT TO SECTION 8(b): (a) NO PARTY OR ITS AFFILIATES MAY BE HELD LIABLE UNDER OR IN CONNECTION WITH THESE TERMS (WHETHER IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR OTHERWISE) FOR ANY: (I) LOSS OF PROFIT; (II) LOSS OF ANTICIPATED SAVINGS: (III) LOSS OF BUSINESS OPPORTUNITY; (IV) LOSS OF OR CORRUPTION OF DATA; (V) LOSS OR DAMAGE RESULTING FROM THIRD PARTY CLAIMS; OR (VI) INDIRECT, SPECIAL OR CONSEQUENTIAL LOSSES; SUFFERED OR INCURRED BY THE OTHER PARTY (WHETHER OR NOT SUCH LOSSES WERE IN CONTEMPLATION OF THE PARTIES AT THE DATE THESE TERMS WERE ACCEPTED BY CUSTOMER); AND (b) SUBJECT TO SECTION 9(a) OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FROM ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS UNDER OR IN CONNECTION WITH THESE TERMS, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT PAYABLE TO GOOGLE BY CUSTOMER UNDER THE TERMS IN THE TWO MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT (OR FIRST IN A SERIES OF CONNECTED EVENTS) OCCURRED; AND (II) AUD $10,000.

10 Indemnification. Customer will defend, indemnify and hold harmless Google, its Partners, agents, affiliates, and licensors (each an “Indemnified Person”) from any third party claim or liability arising out of or related to Ads, Targets, Creative, Destinations, Services, Use and breach of these Terms by Customer, except in relation to each Indemnified Person, to the extent that the third party claim or liability arises as a direct result of: (a) that Indemnified Person’s negligence or misconduct; or (b) that Indemnified Person’s breach of the Terms. Partners are intended third party beneficiaries of this Section.

11 Term. Google may make non-material changes to these Terms at any time without notice, but Google will provide advance notice of any material changes to these Terms. The changes to the Terms will not apply retroactively and will become effective no less than 7 days after notice. However, changes made for legal reasons may be effective immediately upon notice. Either party may terminate these Terms at any time with notice to the other party, but (i) campaigns not cancelled under Section 4 and new campaigns may be run and reserved and (ii) continued Program Use is, in each case subject to Google’s then standard terms and conditions for the Program available at www.google.com/ads/terms. Google may suspend Customer’s ability to participate in the Programs at any time, for example, in the event of payment issues, suspected or actual violations of the Policies or these Terms or for legal reasons. In all cases, the running of any Customer campaigns after termination is in Google’s sole discretion.

12 Miscellaneous. (a) ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. (b) Nothing in these Terms will limit a party’s ability to seek equitable relief. (c) These Terms are the parties’ entire agreement relating to its subject and supersede any prior or contemporaneous agreements on that subject. (d) No party may make any public statement regarding the relationship contemplated by these Terms (except when required by law). (e) All notices of termination or breach must be in writing and addressed to the other party’s Legal Department (or if it is not known if the other party has a Legal Department then to the other party’s primary contact). The email address for notices being sent to Google’s Legal Department is [email protected]. All other notices must be in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). These notice requirements do not apply to legal service of process, which is instead governed by applicable law. (f) Except for modifications to these Terms by Google under Section 11, all amendments must be agreed to by both parties and expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms. If any provision of these Terms is found unenforceable, the balance of the Terms will remain in full force and effect. (g) Neither party may assign any part of these Terms without the written consent of the other party, except to an affiliate but only where (I) the assignee agrees in writing to be bound by these Terms, (II) the assigning party remains liable for obligations under these Terms if the assignee defaults on them, and (III) the assigning party has notified the other party of the assignment. Any other attempt to transfer or assign is void. (h) Except as expressly listed in Section 10, there are no third-party beneficiaries to these Terms. (i) These Terms do not create any agency, partnership or joint venture among the parties. (j) Sections 1 (last sentence only) and 7 to 12 will survive termination of these Terms. (k) Except for payment obligations, no party or its affiliates is liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.