1. Engagement

b.        These Terms and Conditions together with an Actual Marketing Agreement constitute an agreement between Actual Marketing and the Client and applies to all services provided to the Client by Actual Marketing.

c.        The Client acknowledges that Actual Marketing is engaged under as an independent contractor and not as an employee, partner, and agent or otherwise.

d.        Unless otherwise specified, any offer issued by Actual Marketing that is contained within a proposal, quotation, agreement or invoice must be accepted in writing by the client within thirty (30) days from the date of issue, after which the offer lapses.

2. Services

b.        Each project will have set technical features described in the proposal. Upon approval of this proposal the client authorises Actual Marketing to begin work.

c.        On commencement the development team will proceed in accordance with the exact specifications as set out in this document. If there are any amendments to these features after the project has commenced, Actual Marketing will consider this to be an additional component or customisation of the project and will charge for this work at our standard hourly rates.

d.        All projects are tested for compatibility on the following browsers:

i.            Internet Explorer

ii.            Firefox

iii.            Apple Safari

iv.            Opera

v.            Google Chrome

vi.            Browser Plug-ins

vii.            Current version of Flash Player is recommended to be installed on your browser

2.1 Project Staging

Design

Stage 1 – The client is to provide as much corporate identity materials as possible, such as a logo, photos, colour schemes and text information in digital format. If Actual Marketing has to source such information additional costs may incur.

Stage 2 – The client must thoroughly review the design concept/s, providing feedback within five business days.

Stage 3 – The client must carefully review the completed design/s including all content, providing feedback on any changes within five business days.

Final review – The client will review any changes made in stage three and authorise Actual Marketing to finalise order and/or proceed to printing. Any changes requested after the final review will be considered additional and charged at our standard hourly rate. Errors found once order/s have been printed will be at client’s expense.

Stage 1 – The client is to provide as much corporate identity materials as possible, such as a logo, photos, colour schemes and text information in digital format. If Actual Marketing has to source such information additional costs may incur.

Stage 2 – The client must thoroughly review the websites design, providing feedback within five business days.

Stage 3 – The client must carefully review the completed website including all content, providing feedback on any changes within five business days.

Final review – The client will review any changes made in stage three and authorise Actual Marketing to launch the project. Any changes requested after the final review will be considered additional and charged at our standard hourly rate.

Technical Features/Specifications (Website).

2.3 Compatibility

a.        Actual Marketing will ensure that any site or application will function correctly:

i.            On the server to which it is initially installed

ii.            When viewed with Internet Explorer

iii.            When viewed with Firefox

iv.            When viewed with Apple Safari

v.            When viewed with Opera

vi.            When viewed with Google Chrome

b.       Actual Marketing can offer no guarantee of correct function with other browser software including future releases of the listed software.

2.4 Database, application and e-commerce development

a.        Actual Marketing cannot take responsibility for any losses incurred using any software created for the client. The client is expected to fully test any application or program relating to a site developed by Actual Marketing before being made available for general use. Whilst every care has been taken to ensure products are bug free and accurate, the ultimate responsibility lies with the client in ensuring that all software is functioning correctly before use.

b.        Any scripts, CGI applications, php scripts or software written by Actual Marketing remain the property of Actual Marketing and may only be commercially reproduced or resold with the permission of Actual Marketing.

c.        Where applications or sites are developed on servers not recommended by Actual Marketing, the client is expected to provide information, software and support relating to the server to assist with the correct development of the application. Any assistance or work required from Actual Marketing for external hosting will incur additional charges.

d.        Where a large application is to be developed, the client is responsible for providing a testing environment as similar as possible to the final production environment.

e.        When a project has been delivered and approved, the client will have a three-month grace period where Actual Marketing will address any reported system errors or bugs free of charge. After this grace period any required maintenance will be billed at our standard hourly rates.

2.5 Website hosting

a.        Actual Marketing cannot guarantee the availability or continuity of this service and cannot accept liability for loss of revenue caused by the unavailability, malfunction or interruption of this service.

b.        Actual Marketing reserves the right to refuse handling of material which may be deemed offensive, illegal or controversial. In this instance, hosting services may be terminated.

2.6 Hosting terms

a.        Actual Marketing offers a hosting service. Any client requesting hosting on another server will be charged a fee for the time taken to transition the website to the preferred hosting provider.

2.7 Training

a.        Training, when required, will be carried out as specified in the project outline.

b.        Training shall be co-ordinated in writing between both parties at a time suitable for Actual Marketing representatives.

3. Client obligations

b.        Any information provided must be updated by the Client for any material changes which affect the scope or performance by Actual Marketing of the Services.

c.        The Client has sole responsibility for ensuring all information and content supplied to Actual Marketing has been review by the client. Actual Marketing takes no responsibility for any information supplied to them by the client and all wording shall be entered as supplied unless otherwise agreed to.

4. Specified personnel

b.        remain on the engagement until the completion or termination of the Services.

c.        Should the persons assigned to perform the Services no longer be available during the engagement for any reason, Actual Marketing will inform the Client promptly of that change and will identify the persons who have been assigned to perform the Services.

5. Non-Solicitation

b.        If the Client breaches the above-mentioned clause the Client must pay Actual Marketing liquidated damages equal to 50% of that person’s proposed total annual remuneration with the Client.

c.        The Client acknowledges that it is difficult to assess accurately losses Actual Marketing may suffer if the Client breaches the clause and the foregoing liquidated damages constitute a genuine pre-estimate of such loss in the circumstances

6. Use of reports and advice

b.        Actual Marketing will use its best endeavours to ensure the accuracy and reliability of any reports or advices provided to the Client in connection with the performance of the Services, however, Actual Marketing does not guarantee the accuracy of any such information nor does Actual Marketing guarantee the safety of any particular person or property.

c.        The Client may not make any claim against Actual Marketing in respect of the death or injury of any employee, agent, representative, partner, director or consultant of the Client who has relied on any advice or report prepared by Actual Marketing, and the Client indemnifies Actual Marketing in respect of any loss or liability suffered or incurred by Actual Marketing and arising due to any claim made as a result of the same.

7. Payment Terms

7.1 Payment Schedule

a.        Actual Marketing shall issue a tax invoice upon the client’s acceptance of an agreement for forty (40) percent of the total quoted project. The remaining sixty (60) percent shall be invoiced to the client and completion of the project.

a.       Other payment schedules/arrangements can be made and will be stated in writing before work commences.

7.2 Expenses

a.        Expenses incurred by Actual Marketing in connection with these Terms and Conditions (which are not specified in the Agreement as being included in the Fees) including travel and subsistence, and goods and services

b.        purchased on the Client’s behalf, are to be reimbursed by the Client and are subject to a 20% administration fee. For air travel, Actual Marketing will use economy class within Australia and business class or equivalent for overseas travel.

7.3 Payment Terms

a.        Unless otherwise specified in the Agreement, the Client must pay each tax invoice within seven days (7 days) of the date of the invoice.

b.        Actual Marketing reserves the right to charge interest on overdue amounts at an annual rate of five (5) per cent over the Reserve Bank of Australia base rate ruling on the date payment is due.

7.4 Taxes and Charges

a.        The Client must pay any tax or other charge imposed on Actual Marketing (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, these Terms and Conditions. This includes (but is not limited to) any goods and service tax (“GST”) imposed under the A New Tax System (Goods and Service Tax) Act 1999 (Cth) or any replacement or other relevant legislation or regulations as amended (hereafter, “GST Law”).

b.        Any fees charged by Actual Marketing under these Terms and Conditions will be initially calculated exclusive of GST. Where GST is payable on any supply provided under these Terms and Conditions, the Client agrees that the fee payable for this supply will be increased by an amount equivalent to the GST payable by Actual Marketing in respect of that supply.

c.        Terms in this clause have the meanings given in GST Law

7.5 Delays

a.        Where a project is delayed by a client exceeding 60 days Actual Marketing shall issue written notice of contract delay and terminate the contract. Full payment shall be required by the client to Actual Marketing in accordance with these Terms and Conditions.

7.6 Review of Fees

a.        Unless the Agreement specifies otherwise, Actual Marketing reserves the right to review the Fees, disbursements and expenses periodically and will notify the Client of any changes and when these changes will take effect.

8. Variations

b.        Where the Client requests a Variation, Actual Marketing shall, within ten (10) Business Days, submit to the Client in writing:

i.            pricing of, or methodology for calculating the price of, the Variation.

ii.            full supporting details for the pricing of the Variation.

iii.            the agreed price; or

iv.            in the absence of any agreement on the price of the Variation, or on calculating the price of the Variation:

v.            the reasonable valuation of the Variation; and

c.        Where the Client requests a Variation omitting some of the Works, the Variation shall be valued as a nett deduction excluding any allowance for overheads and profit.

9. Access to individuals and information

b.        engagement to any person other than as necessary to perform the Services or where Actual Marketing is legally required to disclose it.

c.        The Client shall have full responsibility to supply Actual Marketing with all content and assets required to perform their duties unless otherwise stated within the agreed agreement.

d.        The Client shall ensure all content is provided within agreed times set out within writing between Actual Marketing and the Client.

e.        In carrying out the Services it may be necessary for Actual Marketing to obtain the Client’s personnel records and other sensitive information about employees of the Client or of other persons connected with the Client’s business.

f.         The Client warrants that it has obtained such consents as may be required under the Privacy Act 1988 (Cth) to release such information to Actual Marketing.

g.        Actual Marketing must deal with any information provided by the Client under this clause in accordance with the National Privacy Principles under the Privacy Act 1988 (Cth).

10. Confidential Information & intellectual property

b.        Unless otherwise agreed, Actual Marketing retains all Intellectual Property Rights in all material provided to the Client or created for the Client in the course of performing the Services (Work Product).

c.        Nothing in these Terms and Conditions will be taken to transfer ownership of any Work Product to the Client. However, Actual Marketing grants to the Client a personal, non-transferable, non-exclusive, perpetual, royalty-free licence to use the Work Product solely for the purposes for which it was created pursuant to these Terms and Conditions.

d.        The Client must not, under any circumstances, on- supply Work Product or any component of the Work Product for use by third parties without Actual Marketing’s prior written consent. Actual Marketing may withhold that consent without giving reasons, and may grant such consent subject to conditions, including the payment of further fees by the Client.

e.        In these Terms and Conditions, ‘Intellectual Property Rights’ mean all copyright, trade mark, design, patent, semi – conductor or circuit layout rights; trade, business, company or domain names; any right to have confidential information kept confidential; other proprietary rights; any rights to registration of such rights existing anywhere in the world, whether created before, on or after the date of these Terms and Conditions.

11. Indemnities

b.        To the maximum extent permitted by law, the Client indemnifies Actual Marketing from any liability it may have to a third party as a result of any information supplied to Actual Marketing by the Client or any of its agents, where such information and documentation is false, misleading or incomplete.

c.        The Client indemnifies, and will keep indemnified, Actual Marketing against any claim, loss expense or liability arising out of:

i.            any negligent act or omission of the Client, the Client’s consultants, agents, employees or other Clients;

ii.            any breach of contract or statutory duty by the Clients, the Client’s consultants, agents, employees or other Clients;

iii.            any defect of the Works;

iv.            any defect in the design of the Works provided by the Client.

d.        The Client shall take reasonable steps to mitigate any loss or damage caused or contributed to.

12. Limitation of liability

b.        Notwithstanding any other provision of these Terms and Conditions, Actual Marketing shall have no liability whatsoever to the Client regardless of the basis for that liability (whether in contract, tort, including negligence or on any other legal or equitable basis) for loss of use, production, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or any economic loss or financial loss or cost (whether similar to the foregoing or not, and whether suffered by the Client itself or as the result of a claim by a third party) or for any special, indirect or consequential loss or damage.

13. Force majeure

b.        The Client hereby grants a transferable, non- exclusive, royalty-free licence to Actual Marketing to use any materials that it supplies to Actual Marketing

c.        The performance of Actual Marketing’s obligations under these Terms and Conditions will be suspended for the period of the delay due to an event or circumstance beyond its reasonable control.

d.        If a delay due to an event or circumstances beyond Actual Marketing’s reasonable control exceeds thirty (30) days, the Client may terminate these Terms and Conditions immediately by giving notice in writing to Actual Marketing.

e.        If the Client gives such notice to Actual Marketing:

i.            Actual Marketing must refund any moneys previously paid by the Client under these Terms and Conditions for which no services have been provided; and

ii.            The Client shall pay Actual Marketing a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Client.

14. Termination

b.        Either party may terminate these Terms and Conditions immediately on notice in writing to the other party if:

i.            the other party becomes unable to pay its debts as they fall due, or threatens or resolves to become or is in jeopardy of becoming or subject to any form of insolvency administration, including receivership, liquidation, provisional liquidation, bankruptcy;

ii.            the other party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

iii.            the other party, being a person, dies; or

iv.            the other party ceases or threatens to cease conducting its business in the normal manner.

v.            Notwithstanding clauses all other mentioned clauses, either party may terminate these Terms and Conditions by giving thirty (30) days’ notice in writing to the other.

c.        If notice is given by either party pursuant to above clauses:

i.            Actual Marketing is entitled to retain any amounts paid by the Client pursuant to these Terms and Conditions;

ii.            The Client shall pay Actual Marketing for work performed up to the date of termination in respect of which no sum has been previously charged, at the rates specified in these Terms and Conditions or if none are specified in respect of such work, at reasonable rates;

iii.            Actual Marketing may retake possession of any property of Actual Marketing in possession of the Client;

iv.            Actual Marketing shall be regarded as fully discharged from any further obligations under these Terms and Conditions;

d.        Actual Marketing may require the Client to return or destroy any confidential information of Actual Marketing.

e.        Actual Marketing must notify the Client as soon as practicable of any anticipated delay due to an event or circumstances beyond its reasonable control.

14.1 Either party may terminate Terms and Conditions for insolvency

a.        Either the Client or Actual Marketing may terminate the Terms and Conditions immediately on giving written notice to the other party, if the other party:

i.            commits an act of bankruptcy, or is made bankrupt;

ii.            makes a composition or other arrangement with creditors;

iii.            assigns assets for the benefit of creditors generally;

iv.            a company, becomes insolvent, enters into a deed of company arrangement, has a controller, administrator or receiver appointed, or is in liquidation.

14.2 Requirements of notice

a.        A written notice must set out the ground or grounds relied on by the relevant party for the termination.

b.        Enforceability if the other party is a company If ‘the other party’ is a company and enters into certain arrangements for the purpose of avoiding being wound up in insolvency or appoints an administrator, then the right to terminate the Terms and Conditions may be limited by the Corporations Act 2001 (Cth).

15. Extension of Time

i.            an act or omission of Actual Marketing, Actual Marketing’s consultants, agents or Clients;

ii.            a Variation of the Works;

iii.            a breach of the Terms and Conditions by Actual Marketing;

iv.            a strike, lockout, civil commotion or industrial action

v.            an act of prevention by Actual Marketing not otherwise covered by this Clause; or

b.        If, at any time prior to the Works reaching Completion, the Client believes that the progress of the Works was delayed, the Client shall give Actual Marketing a written notice within five (5) Business Days of the delay occurring setting out:

i.            the cause of the delay;

ii.            the time during which the carrying out of the Works was delayed; and

iii.            the extension of the Date for Completion that the Terms and Conditions claims as a result of the delay.

c.        On the giving of a notice, Actual Marketing shall:

i.            give the Client a written notice granting the extension of the Date for Completion that the Client claims in the notice; or

ii.            if Actual Marketing disputes the Client’s entitlement to all or any part of the extension of the Date for Completion that the Client claims in the notice, give the Client a written notice:

iii.            stating that Actual Marketing disputes the Client’s claim for an extension of the Date for Completion;

iv.            setting out full details of the dispute; and

v.            granting any part of the Client’s claim for an extension of the Date for Completion that is not disputed by Actual Marketing, within five (5) Business Days after the giving of the notice.

d.        Notwithstanding that the Client is not entitled to an extension of the Date for Completion under this Clause, Actual Marketing may in its sole discretion and for its benefit, at any time prior to the submission by the Client of a final claim in accordance with, extend the Date for Completion for any reason by giving the Client a written notice setting out the extension of the Date for Completion.

e.        Where the progress of the Works is delayed as a result of a cause set out in any Clauses any increase in the cost to the Client in carrying out the Works, including supervision and off-Site overheads, arising directly or indirectly out of the delay shall be added to the Terms and Conditions Sum.

16. System and Functionality Defects

b.        Actual Marketing shall only warrant the Defect period for Three (3) months from completions.

c.        Where works are required outside this time Actual Marketing shall invoice at an hourly rate or as agreed by both parties in writing.

17. Waiver

18. Severability

19. Dispute Resolution

b.        If a dispute or difference arises out of, or in connection with, the Terms and Conditions, either party may give the other party a written notice of dispute setting out the details of the dispute including any amount in dispute.

c.        The parties shall arrange, and participate in, a ‘without prejudice’ conference between them, or their authorised representatives, in an attempt to resolve the dispute or difference set out in the notice of dispute within five (5) Business Days after the giving of the notice of dispute.

21.1 Mediation or Arbitration

If the parties fail to resolve all of the dispute or difference set out in the notice of dispute during the ‘without prejudice’ conference, or if the party given the notice of dispute fails to participate in a ‘without prejudice’ conference within five (5) Business Days after the giving of the notice of dispute, then either party may give the other party a written notice referring all or any part of the dispute or difference to mediation or arbitration.

a.        If the parties refer all or any part of the dispute or difference set out in the notice of dispute to mediation or arbitration but fail to agree on the person to be appointed as the mediator or the arbitrator, then either party may give a written notice to the President and the other party requesting that the President appoint (as the case may be):

i.            a mediator to facilitate the mediation; or

ii.            an arbitrator to decide all or that part of the dispute or difference referred to arbitration.

b.        If either party gives a notice the President shall give to the parties a written notice setting out the name and contact details of (as the case may be):

i.            the mediator appointed by the President to facilitate the mediation; or

ii.            the arbitrator appointed by the President to decide all or that part of the dispute or difference referred to arbitration.

c.        On the giving of a notice, the parties shall:

i.            request the mediator or the arbitrator named in the notice to make suitable arrangements for (as the case may be) the mediation or the arbitration; and

ii.            participate in (as the case may be) the mediation or the arbitration and pay the costs of the mediation (including the costs of the mediator) or the costs of the arbitration (including the costs of the arbitrator) in equal shares unless otherwise agreed by the parties or decided by the arbitrator.

d.        If the parties fail to:

i.            refer any part of the dispute or difference set out in the notice of dispute to mediation or arbitration within:

i.            five (5) Business Days after the ‘without prejudice’ conference; or

ii.            if the party given the notice of dispute fails to participate in a ‘without prejudice’ conference, ten (10) Business Days after the giving of the notice of dispute, or

iii.            resolve all of the dispute or difference set out in the notice of dispute during any mediation, then either party may commence litigation in relation to any part of the dispute or difference set out in the notice of dispute that is not:

iv.            referred to mediation or arbitration; or

v.            resolved during any mediation.

e.        Notwithstanding the giving of a notice of dispute, the parties shall, subject to the Terms and Conditions, continue to perform the works in accordance with the Terms and Conditions.

20. Notices, Electronic Communications and Exchange of Contract

22.1 Methods for giving notices and other documents

a.        Unless expressly stated otherwise elsewhere in the Terms and Conditions, and subject to, any written notice, or other document, to be given by a party under the Terms and Conditions is deemed to have been given and received:

i.            if delivered by hand to the other party, at the time of delivery;

ii.            if the other party is a company and the notice is left at its registered office or a principal place of business, at the time that the notice is left at the registered office or principal place of business;

iii.            if sent by pre-paid or registered post to the other party at the address of the other party stated in the Terms and Conditions, or another address notified by the other party in writing, at 9.00am on the date that is two (2) Business Days after the date of posting;

iv.            if sent by facsimile transmission to the other party at the facsimile number of the other party stated in the Terms and Conditions, or another facsimile number notified by the other party in writing, at the time set out in a written confirmation of the successful transmission of the facsimile; or

v.            if sent by email to the other party at the email address of the other party stated in the Terms and Conditions, or another email address notified by the other party in writing, at the time when the email leaves the relevant system for generating, sending, receiving, storing or otherwise processing electronic communications used by the party whom, or on whose behalf, the email has been sent

22.2 Notices given outside of usual business hours

a.        If any written notice, or other document, is given at a time after 5.00pm on a Business Day, or during a Day that is not a Business Day, the notice, or other document, is deemed to have been given at 9.00am on the next Business Day.

22.3 Consent to electronic communications

a.        The parties agree that email communications from either party to the other constitute an ‘electronic communication’ as that term is defined in the Electronic Transactions Act 1999 (Cth) and corresponding State legislation including the Electronic Transactions (Queensland) Act 2001.

b.        The parties agree that any written notice, or other document, to be given by a party under the Terms and Conditions may be given and received via email.

22.4 Exchange of Contract

a.        This Terms and Conditions may be executed in counterparts.

b.        A counterpart may be a copy of this Terms and Conditions printed from a facsimile or email transmission.

c.        All counterparts together are taken to constitute one instrument and will not be binding until executed counterparts are exchanged.

d.        A copy of this Terms and Conditions which has been executed by a party may be relied upon by a party to the same extent as if it was an original of this Terms and Conditions executed by the party.

21. Governing law and Jurisdiction

b.        Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts for determining any disputes or proceedings arising out of or in connection with these Terms and Conditions and to any courts competent to hear appeals from such courts.

22. Definitions

has the meaning given in section 36 of the Acts Interpretation Act 1954 (Qld), but does not include 27, 28, 29, 30 or 31 December of any Year.

a.        changing the nature or scope of the work that is required to be carried out, including the omission of work from any Agreement, Quotation, Proposal or Invoice; or

b.        changing the manner or sequencing in which the project is required to be carried out.