Meanings & Abbreviations
In this Agreement the following words have their corresponding meanings:
Agreement / Terms and Conditions means your agreement with us as contained in this document (as may be modified from time to time).
Google / Google AdWords / Search Engine means Google and Google AdWords except to the extent that you have specifically instructed us (and we have agreed to) manage your account in relation to a non-Google search engine in addition to (or in substitution of) Google.
I, You, Your / Account Holder means the person or company named as the client in this Agreement and (where applicable) the website or business that you have authority over.
We / Us means Upswing Digital Marketing ABN 14 706 868 355
General AdWords/Facebook Advertising Payment Terms
- The Initial Setup Fee is payable in full before the setup of your Google AdWords/facebook accounts will begin.
- The monthly Management Fee for your Google AdWords/Facebook advertising account will be charged 7 days after the date of sign up. The Management Fee will be charged monthly in arrears. UpSwing Digital Marketing reserves the right to charge the Management Fee monthly in advance at any time by email notice to you a reasonable time before the change occurs.
- Upswing Digital Marketing will automatically debit your supplied credit card monthly for the weekly Management Fees unless you and we have agreed to charge the Management Fee using a different basis, method and/or timeframe.
- Upswing Digital Marketing reserves the right to not set up your Google AdWords/Facebook advertising account. At which time you will receive a full refund of all Setup Fees that you have paid.
- Please note that in all cases where we have already set up your new account there can be no refund of the Setup Fee.
- Upswing Digital Marketing reserves the right to stop managing your Google AdWords/Facebook advertising account and terminate this Agreement at any time by written (or email) notice to you. If this occurs your Upswing Digital Marketing weekly management fee will stop at the end immediately after the termination date.
- If you wish to suspend or cancel your Upswing Digital Marketing management of your AdWords/Facebook advertising accounts at any time then please let us know by phone or email. We will then book a meeting (in person or by phone) with you and one of our team leaders or managers to discuss your requirements, feedback or concerns. If you still want to suspend or cancel after the meeting then your Upswing Digital Marketing weekly management fee will stop at the end of next billing cycle from the date of written notification.
Please note that if you wish to suspend (temporarily pause) your Upswing Digital Marketing management of your AdWords accounts then your Google advertising must also be suspended/temporarily pause (which we will arrange).
- Upon cancelling Upswing Digital Marketing management, all amounts owing to Upswing Digital Marketing will need to be paid in full; any outstanding amounts will be due within 7 business days of cancellation.
- Upswing Digital Marketing reserves the right to engage a debt collector at your expense if there are any unpaid invoices overdue by 60 days
General AdWords/Facebook Advertising Terms & Conditions
This is not a fixed-term contract with Upswing Digital Marketing, however, whilst Upswing Digital Marketing are managing your Google AdWords/Facebook advertising account the following terms and conditions apply:-
- By entering this Agreement with Upswing Digital Marketing you give us permission to access your Google AdWords/Facebook advertising account for the purposes of optimisation and management of your online business.
- UpSwing Digital Marketing will endeavour to set up your AdWords/facebook advertising accounts as soon as possible, however in some cases it may take up to 5-7 days to complete setup of your new account.
- If we request more information from you for the setup of your new or existing account, UpSwing Digital Marketing will not be held responsible for any delay arising from the need for further information.
- To allow us to finalise strategies started and ensure your account is not negatively affected by “half finished” optimisation techniques, we require 2-weeks’ notice to cancel management and billing.
- We would appreciate the opportunity to discuss your concerns at this time.
- UpSwing Digital Marketing management (with Upswing Digital Marketing management fees) is a separate service from the “per click” fees that Google AdWords/Facebook will charge you. Cancellation of your management does not automatically stop your Google AdWords advertising from running and incurring Google AdWords/facebook “per click” fees. Upswing Digital Marketing will not be liable for any amounts that Google AdWords/ Facebook charges you following the cancellation of your management with UpSwing Digital Marketing. If you wish to cease advertising online at the same time that you cancel your Upswing Digital Marketing management, please notify your Client Manager in writing so that we can cancel your Google Adwords/facebook advertising as well. Alternatively, you may choose to directly access your own Google Adwords/facebook advertising account to arrange cancellation.
- For clarity, please note that:-
- Upswing Digital Marketing is not Google, Google AdWords, Facebook or Yahoo;
- Google “sponsored link” is a generic term, whereas Upswing Digital Marketing is our business name;
- Your AdWords /facebook advertising account/s remain your property. We will work on your AdWords/facebook advertising account/s, but it/they remain Yours.
- UpSwing Digital Marketing will endeavour to help you obtain your online advertising goals by providing you with advice, information and technical services in relation to Search Engine advertising/marketing. Unless specifically stated to the contrary in this Agreement, Upswing Digital Marketing do not guarantee any particular rate of return or performance of any online advertising on Google AdWords/facebook advertising (including but not limited to any particular search results page/s or rankings). We cannot be held responsible for commercial outcomes which are associated with the Internet marketing or management of your Google AdWords/facebook advertising account for your business and/or websites.
- Upswing Digital Marketing is providing an internet marketing service for a competitive price. Upswing Digital Marketing is not insuring or underwriting your chosen business model. You acknowledge that internet services are inherently subject to technical failures and disruptions from time to time. To the maximum extent permitted by law :-
- Upswing Digital Marketing will not be liable in any way for fines, penalties, taxes (except GST), exemplary/aggravated/punitive damages, liquidated damages, indirect/consequential losses (including loss of contract, loss of production, loss of revenue, loss of profit, lost opportunity costs, and/or other loss not arising naturally and directly according to the usual course of things) or legal costs and expenses (except reasonable legal costs awarded by a court) arising from the subject matter of this Agreement; and
- The maximum liability of Upswing Digital Marketing to you is the lesser of:-
- the sum of Setup Fees and Management Fees you have paid to Upswing Digital Marketing; or
- the cost of re-supplying the online advertising services; or
- the cost of rectifying the online advertising problem which has caused your loss.
- These Terms and Conditions are governed by the law in force in the State of Victoria, Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them for determining any dispute concerning the Terms and Conditions.
- These Terms and Conditions can be modified at any time by Upswing Digital Marketing. You agree to continue to be bound by these Terms and Conditions as modified. We will publish the revised Terms and Conditions on our website – we will not separately notify you of these changes.
- If the whole or any part of a provision of these Terms and Conditions are void, unenforceable or illegal in a jurisdiction then such part shall be severed for that jurisdiction. The remainder of the Terms and Conditions have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of the Terms and Conditions or is contrary to public policy.
- You warrant to Us that you will use the services provided by UpSwing Digital Marketing under this Agreement for business purposes (and not predominantly personal, domestic or household use).
To the extent that Copyright subsists in any text that We create for Your AdWords account/s pursuant to this Agreement; We assign copyright in such text to You. For the avoidance of doubt, this clause does not assign copyright in any other materials that we may create for you outside the scope of this Agreement.
You are solely responsible for maintaining the secrecy of your username and password in relation to the Account/Site, and for restricting access to your computer. You are fully responsible for the use of the Account/site under your username and password. In case of breach of security, you must notify UpSwing Digital Marketing immediately of any unauthorised use of your username or password.
Facebook specific Terms and Conditions
Unless otherwise expressly agreed to between you and Upswing Digital Marketing, it will be your responsibility to monitor, manage and respond to all comments on the Facebook Page; Upswing Digital Marketing may at your request setup custom Facebook tabs using our agency account. At the termination of your management agreement with Upswing Digital Marketing, all data and ownership of the custom tabs cannot be transferred. Upswing Digital Marketing may, on occasion, manage third party applications (including custom tab builders) at your request.
General Terms and Conditions
All content is the copyright of Upswing Digital Marketing unless otherwise stated. This includes, but is not limited to; all text, images, graphics, audio commentary, visual presentations and any related file. Material cannot be copied, reproduced or distributed in any form by any means.
The terms of the Proposal shall be effective for thirty (30) days after presentation to the Client, unless otherwise stated in writing. In the event that an agreement is not executed by the Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
In consideration of the Products supplied or Services to be performed by Upswing Digital Marketing the Client shall pay to Upswing Digital Marketing fees and expenses in the amounts and according to the payment schedule, and all applicable sales, use or value-added taxes, even if calculated or assessed subsequent to the payment schedule.
Terms of Payment:
Terms of payment will be included in the Proposal or Invoice. All invoices will otherwise be payable within fourteen (14) days of receipt. A 1.5 percent monthly service charge is payable on all overdue balances.
Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by late or default in payment.Upswing Digital Marketing reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges or the costs of Changes.
Warranties and Representations:
Except for the express representations and warranties stated in this agreement, Upswing Digital Marketing makes no warranties whatsoever. Upswing Digital Marketing explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the product or services.
The products and services of Upswing Digital Marketing are sold “as is.” In all circumstances, the maximum liability of Upswing Digital Marketing, its directors, employees, agents and affiliates, to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the charges paid in respect to product or service, provided you notify us of any such claim within 30 days. In no event shall Upswing Digital Marketing 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 products or materials or services provided by Upswing Digital Marketing, even if Upswing Digital Marketing has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Modifications to Terms & Conditions
Upswing Digital Marketing reserves the right to update and change the Terms and Conditions from time to time without notice. Any alterations to Products or Services shall be subject to the Terms and Conditions. Continued use of a Product or Service after any such changes shall constitute your consent to such changes.