“Agreement” means the agreement between the Customer and Circle Labs which is governed by the Terms, Customer Proposal, Schedule to Customer Proposal and Associated Documents.
“Associated Documents” means any documents created by Circle Labs which contains terms which relate to the relationship between Circle Labs and its Customer.
“Customer” means the person, company or organisation who engages Circle Labs pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms.
“Customer Proposal” means any proposal or quote issued by Circle Labs to the Customer from time to time.
“Initial Term” means the term of the Agreement which is 12 months from the commencement date unless otherwise stated in the Customer Proposal.
“Circle Labs” means People Can Fly Pty Ltd or any other related entity or company trading under the circlelabs.com.au brand name.
“PPC Services” means pay per click services and products such as Google Adwords or Bing that Circle Labs may manage on behalf of the Customer, the terms of which are governed by the PPC Terms set out in the Schedule to these Terms.
“Services” means the services to be provided by Circle Labs to the Customer of the type and nature described in the Customer Proposal.
“Service Fee” means the specified rate, price or lump sum amount for the Services that is set out in any Customer Proposal.
“Terms” means these terms and conditions.
“Total Contract Price” means the sum of all Service Fees for all Services to be provided to the Customer by Circle Labs pursuant to this Agreement as outlined in the Customer Proposal, including but not limited to Website design and development, online marketing package/s, content management packages, SEO package and Adwords package.
“Website” means the Customer’s website(s) or the website which is to be the subject of the Services.
1.1 Circle Labs may from time to time issue Customer Proposals for the provision of its Services. All Proposals issued by Circle Labs are subject to these Terms.
1.2 All amounts and prices provided in a Customer Proposal are exclusive of GST unless otherwise stated. Where the Service provided by Circle Labs is subject to GST, it will be added and charged to the Customer.
1.3 Any Customer Proposal will remain open for acceptance by the Customer for 30 days, unless withdrawn by Circle Labs earlier.
1.4 The Customer is deemed to have accepted the Customer Proposal and these Terms in any of the following ways:
1.4.1 by providing a written acceptance of the Terms or Customer Proposal, or by any other form of written communication; or
1.4.2 by placing an order with Circle Labs or instructing Circle Labs to provide the Services after Circle Labs’s Terms and/or the Customer Proposal is received by the Customer.
1.5 This Agreement comprises the Terms read in conjunction with the Customer Proposal , Schedule to Customer Proposal and Associated Documents (if any), and where there is a conflict between Circle Labs’s Terms and Conditions and the other contractual documentation created by Circle Labs the documentation will prevail in the following priority to the extent of such inconsistency:
1.5.1 Customer Proposal.
1.5.2 Circle Labs’s Terms and Conditions;
1.5.3 Associated Documents.
2. WARRANTIES BY CUSTOMER
2.1 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract Circle Labs 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 these Terms.
2.2 The Customer warrants that it has given Circle Labs all necessary information for it to perform its work including details of all parties which have access to make changes to the website.
2.3 The Customer warrants that all logos, designs, graphic and related materials provided to Circle Labs by the Customer to enable Circle Labs to perform the Services pursuant to this Agreement is either owned by the Customer or the Customer has obtained express authority for Circle Labs to incorporate such material into the Services.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer will:
3.1.1 disclose to Circle Labs all information in the Customer’s possession relevant to the provision of the Services;
3.1.2 comply with all legal requirements and the requirements of all relevant statutory authorities relating to the Services;
3.1.3 provide Circle Labs with such access to the Website, and to provide all necessary assistance to enable Circle Labs to change and modify the Website, which is reasonably required to enable Circle Labs to provide the Services safely in accordance with the Agreement;
3.1.4 make available as soon as is reasonably possible to Circle Labs all material required to complete the Services;
3.1.5 notify Circle Labs in writing within 14 days prior to any proposed change in the legal entity, structure, management, or control of the Customer’s business or change of the registered proprietor of the domain name of the Website, in the event of which the Customer will remain liable under the Agreement unless released in writing by Circle Labs.
4. FEES AND PAYMENTS
4.1 From the commencement of this Agreement, the Customer must pay:
4.1.1 The lump sum amount set out in the Proposal for any of the Circle Labs services; and
4.1.2 The monthly Service Fees for any of the Circle Labs services purchased by the Customer commencing from the commencement date of this Agreement until the expiry or termination of this Agreement in accordance with clause 5.
4.2 If additional work is required to be performed by Circle Labs 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, Circle Labs will provide the Customer with a quote for the additional work for acceptance prior to commencing the additional work.
4.3 There are no refunds available on any Services by Circle Labs.
4.4 Circle Labs will issue invoices to the customer each month and the customer must pay the invoice within 7 days of receipt.
4.5 All media spend charges invoiced to the Customer must be paid by the Customer directly to the publishers.
4.6 In the event that any Circle Labs invoice is outstanding for more than 14 days then, without prejudice to any other rights Circle Labs has, interest will accrue at the rate of 10% per annum on any outstanding amount.
4.7 The Customer indemnifies Circle Labs against all costs and expenses however arising from such default including legal costs on a solicitor/own client basis, and any such liability shall be deemed to be part of the indebtedness of the Customer to Circle Labs.
4.8 Circle Labs has the right to suspend the provision of the Services to the Customer in the event that any invoice is outstanding for more than 30 days.
4.9 Payments overdue for a period of more than 90 days will be handed over to our third party debt collectors, and the Customer indemnifies Circle Labs for all costs incurred in relation to such debt recovery.
4.10 As security for payment of any amount owing to Circle Labs under these Terms, the Customer hereby charges in favour of Circle Labs any real property and any personal property in which the Customer has an interest at any time, and the Customer irrevocably authorises Circle Labs to:
4.10.1 Lodge a caveat against any such real property to set out the terms of the charge contained in this Clause; and
4.10.2 Register a security interest, as that term is defined in the Personal Property Securities Act 2009 (PPSA), over any personal property in which the Customer has an interest and to treat that interest as continuing and subsisting security with priority over any unsecured creditors.
4.11 The Customer hereby waives, to the maximum extent possible at law, the right to receipt of a verification statement pursuant to Section 157 of the PPSA, and any other right in favour of the Customer that can be lawfully contracted out of under the PPSA (including, but not limited to, the items listed in Section 115 of that Act).
4.12 If the Customer disputes an invoice including disputing an item in an invoice, the Customer must notify Circle Labs in writing of the issue in dispute within 7 days of receipt of the invoice and must pay such part of the invoice which is not disputed in accordance with these Terms, failing which the Customer waives all rights to dispute the invoice at a later date.
5. INITIAL TERM AND TERMINATION
5.1 The Agreement shall commence on the date the Customer Proposal is signed and continue for an initial fixed period of 12 months (Initial Term).
5.2 The Customer acknowledges that:
5.2.1 The prices quoted by Circle Labs for its Services are based on the Customer entering into a 12 month fixed-term contract with Circle Labs for the Initial Term;
5.2.2 Circle Labs has not charged its usual upfront fees for building the Website on the basis that the Customer will enter into the Agreement for the Initial Term.
5.3 Prior to the end of the Initial Term, the parties may by agreement in writing agree to renew the Agreement for a further fixed term.
5.4 Upon expiration of the Initial Term the Agreement shall continue on a month to month basis until terminated by either party on one month’s written notice.
5.5 Either party may terminate the Agreement during the Initial Term immediately by written notice if:
5.5.1 The other party enters into liquidation whether compulsorily or voluntarily, otherwise than for the purposes of amalgamation or reconstruction, or compounds with their creditors, or has a receiver appointed of all or any part of their assets, or takes or suffers any similar action in consequence of debt;
5.5.2 The other party (being an individual) should die or become subject to the provisions of the Mental Health Act 2007 or become insane or incapable of managing his/her affairs, or if a trustee in bankruptcy is appointed; or
5.5.3 The other party commits a substantial breach of the Agreement and fails to rectify such breach within 14 days of receiving notice of the breach.
5.6 Circle Labs may terminate this Agreement at any time by giving 14 days notice in writing to the Customer. If such notice is given, this Agreement ends at midnight on the day on which that notice expires.
5.7 Except if Circle Labs is in breach of this Agreement, the Customer will be charged a Termination Fee if this Agreement is terminated by the Customer for any reason or terminated by Circle Labs pursuant to clause 5.5 prior to the end of the Initial Term, calculated as follows:
5.7.1 Where the Services do not include building a Website:
a. If the Agreement is terminated within 6 months of commencement, the Customer must pay an amount equivalent to 75% of the balance of the Total Contract Price to be paid pursuant to this Agreement; or
b. If the Agreement is terminated after 6 months from commencement, the Customer must pay an amount equivalent to 1 month of the Service Fee plus 50% of the balance of the Total Contract Price to be paid pursuant to this Agreement.
5.7.2 Where the Services include building a Website for which Circle Labs has not charged the customer a separate fee on the basis that the customer entered into a fixed-term agreement for continuing Services for the Initial Term, the Customer must pay Circle Labs:
a. If the Agreement is terminated within 6 months of commencement, the Customer must pay an amount equivalent to 90% of the balance of the Total Contract Price to be paid pursuant to this Agreement; or
b. If the Agreement is terminated after 6 months from commencement, the Customer must pay an amount equivalent to 1 month of the Service Fee plus 65% of the balance of the Total Contract Price to be paid pursuant to this Agreement.
5.8 The Customer acknowledges that the Termination Fee constitutes the liquidated damages that Circle Labs will suffer and is a genuine pre-estimate of loss arising from the Customer’s breach of this Agreement.
5.9 Upon termination of the Agreement:
5.9.1 The Customer must pay Circle Labs all amounts due and payable but unpaid;
5.9.2 Circle Labs shall remove its tracking code, premium plugins and other services licensed to Circle Labs from the Website.
6. PERFORMANCE LEVELS
6.1 The Customer acknowledges that:
6.1.1 Circle Labs is unable to guarantee improved rankings in Australia’s major search engines;
6.1.2 Circle Labs is unable to guarantee improved traffic to the Customer’s website(s); and
6.1.3 Circle Labs 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;
6.2 Circle Labs reserves the right to add links and web 2.0 assets to the Website for its own marketing purposes.
6.3 In the event that Circle Labs leverages Google Tag Manager to install Circle Labs conversion tracking code into the Customer’s Website for enhanced tracking, such code remains the property of Circle Labs. Base Pixels e.g. Google Analytics/Facebook Pixel etc may need to be re-installed following cessation of services.
6.4 Circle Labs will endeavour to ensure that any development/design site or application will function correctly on the server to 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). Circle Labs can offer no guarantees of the correct functioning with all browsers.
6.5 Circle Labs operate & install premium plugins and services to support our efforts, these tools are licensed by Circle Labs and will be removed from service on termination of the Agreement.
6.6 Circle Labs will endeavour to ensure, but cannot guarantee, that digital assets are fully associated with the business through a business email or generic email service
7. EXCLUSION OF LIABILITY OF Circle Labs
7.1 To the fullest extent permissible by law, the Customer releases Circle Labs 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 Circle Labs or otherwise. Where liability cannot be legally excluded, the liability of Circle Labs shall be limited to the cost of supplying the Services again.
7.2 The Customer agrees to indemnify Circle Labs, 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 legal costs and disbursements) by any third party claim for damages arising out of or in any way connected with the supply of Services by Circle Labs 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 Circle Labs or otherwise including any claims arising from or in connection with the Customer’s information and the Customer’s use of Circle Labs Services.
7.3 The exclusions and indemnities in clauses 7.1 and 7.2 above apply to but are not limited to the following instances:
7.3.1 malfunctioning of the Website or any part of it;
7.3.2 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.
7.3.3 failure to meet agreed deadlines;
7.3.4 URLs dropped or excluded by a search engine for any reason;
7.3.5 acts or causes beyond Circle Labs’s control, including but not limited to acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters;
7.3.6 failure of URLs to achieve specific positions within a particular search engine;
7.3.7 the use or the results of the use of the materials available through the Circle Labs Services from third parties or otherwise not being correct, accurate, timely or reliable;
7.3.8 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 Circle Labs;
7.3.9 the functioning of any software created for the Customer whether database, e-commerce applications or otherwise;
7.3.10 unavailability, malfunction or interruption of services; and
7.3.11 changes made by Circle Labs to the Customer’s website.
7.4 Circle Labs are not responsible for data management, backups 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 Circle Labs.
7.5 Circle Labs 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 Circle Labs 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.
8. RIGHTS OF Circle Labs
8.1 Any remedy of Circle Labs under these Terms and Conditions is in addition to and not in substitution for any remedy which Circle Labs has in law.
8.2 Circle Labs may remove data or other matters which it placed on the Website upon termination or expiry of this Agreement.
8.3 Any scripts, cgi applications or software (unless specifically agreed) written by Circle Labs remain the copyright of Circle Labs and may only be commercially reproduced or resold with the permission of Circle Labs.
8.4 The Customer acknowledges that the Agreement does not constitute any assignment of ownership by Circle Labs of any intellectual property rights owned by Circle Labs that are incorporated into any of the Services including the Website.
8.5 The Customer is responsible for ensuring any intellectual property submitted by the Customer to Circle Labs for use as part of the Services does not infringe any third party intellectual property rights.
9.1 The Customer agrees that the Customer’s personal data may be used and retained by Circle Labs for the following purposes:
9.1.1 provision of good & services
9.1.2 marketing of good & services
9.1.3 processing any payment instructions.
10.1 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 purposes of the Services, save where such Confidential Information is:
10.1.1 in the public domain at the time it is disclosed; or
10.1.2 known to the receiving party at the time of disclosure; or
10.1.3 used or disclosed with the prior, written approval of the disclosing party; or
10.1.4 independently developed by the receiving party; or
10.1.5 known to the receiving party from a source other than the disclosing party without a breach of the Agreement by the receiving party.
11.1 These Terms shall be governed by, performed under, and construed in accordance with the laws of the State of New South Wales and the parties hereto agree to submit to the exclusive jurisdiction of the courts of New South Wales.
11.2 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.
11.3 Circle Labs 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 Circle Labs.
SCHEDULE – PPC
1. This schedule provides additional specific terms and conditions for the provision of PPC Services by Circle Labs. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail.
2. There is no minimum term for the supply and charging of PPC Services by Circle Labs to the Customer.
1. The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2. There is an additional first-month fee plus GST payable for setting up the account as a one off charge.
3. Monthly fees will be fixed as per proposal or package selected and only adjusted if the campaign package either broadens or narrows.
1. Circle Labs will offer a managed Adwords service with the following provisions:
1.1 Circle Labs will utilise an existing or setup a new Adwords account for the Customer associated with the companies domain name.
1.2 Circle Labs will have joint access of the Adwords account and will link to a Google campaign manager and Circle Labs Agency Client centre.
1.3 Circle Labs will provide the Customer via Google Analytics with access 24/7 to reporting and regular monthly automated performance reports.
1.4 Circle Labs will endeavour to spend the predetermined Google click cost budget each month. Circle Labs will not be liable for any under or over spend.
2. The Customer is liable for all Adwords charges generated from the Adwords account.
1. All PPC fees are payable within 14 days of the issue of each invoice by Circle Labs.
2. All fees including Click costs payable to Google shall be paid by the Customer directly by credit card in the Adwords account.
3. To terminate the PPC services, the Customer must 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 PPC Services to the expiration of the notice period.