Terms & Conditions

1. LMCO agrees to provide the marketing services (“Services”) to The User detailed in the provided Schedule.

2. In consideration of LMCO providing the Services to the User, the User agrees to pay to LMCO the fees referred to in the Schedule in line with agreed payment terms outlined in the Schedule.

3. Unless otherwise expressly stated, all fees and charges referred to in this agreement (including the Schedule) are exclusive of Goods and Service Tax.

4. The User warrants and represents that it –

• will comply with all applicable laws and regulations, including but not limited to privacy and data protection laws;

• has all licences, authorisations, consents and approvals necessary in order to perform its obligations under this agreement;

• will only use the Services for lawful purposes and otherwise in accordance with the terms of this agreement (including any obligations or restrictions set out in the Schedule);

5. Each party will retain ownership of its pre-existing intellectual property prior to the Services whereas The User will own intellectual property developed by the Services where applicable by law.

6. As used in this agreement, “Confidential Information” means any information communicated by either party to the other party in the context of their business relationship (whether documented now or in the future or otherwise) and includes –

• any information relating to an identified or identifiable individual (including, without limitation, name, postal address, telephone number, date of birth, government identity card number, driver’s license number, or any other unique identifier or one or more factors specific to the individual’s physical, physiological, mental, economic or social identity, and whether confidential customer data or otherwise) provided by either party to the other (“Personal Information”);

• proprietary or trade secret information which is clearly labelled or designated in writing as confidential by the disclosing party; and

• the specific provisions of any agreements between the parties.

7. Except with respect to Personal Information, Confidential Information does not include information that is generally known to the public, information received in good faith from a third party not subject to a confidential obligation to the source, or information that was independently developed by the recipient without the developing persons having access to the confidential information.

8. Each party agrees that it will –

• not disclose, nor permit any person to disclose, to any other person or entity any Confidential Information except to those of its directors, officers or employees with a strict need to know as part of their official duties or as may be required by law;

• protect the other party’s Confidential Information with the same degree of care it uses to safeguard its own information of a similar character, provided that such degree of care shall not be less than a reasonable degree of care;

• advise any directors, officers or employees who receive the Confidential Information of the obligation of confidentiality hereunder and obtain from them their written obligation to be bound by the confidentiality provisions of this agreement;

• implement appropriate administrative, physical, technical and organizational measures, policies and procedures to protect Confidential Information against accidental or unlawful destruction or accidental loss, unauthorized alteration, disclosure or access, and other unlawful forms of processing;

• take commercially reasonable measures to prevent unauthorized access to, or use of, such Confidential Information or data received from the other party, whether the same is in electronic form or hard copy, by any person or entity;

• maintain and enforce secure data destruction procedures to protect the security and confidentiality of all information obtained through Confidential Information as it is being disposed;

• immediately notify the other party in writing if it suspects, has reason to believe or confirms that any Confidential Information is or has been lost, stolen, compromised, misused or used, accessed or acquired in an unauthorized manner or by any unauthorized person, or for any purpose other than legitimate business reasons; and

• comply with all applicable privacy and data protection laws which may apply to the storage or transmission of any Confidential Information.

• Both parties agree not to directly or indirectly, through a third party, employ or contract any staff or business contractors that have worked on behalf of the other party. This agreement will be valid throughout the time both companies work together and for 12 months from the date both parties cease working together.

9. Either party shall be entitled to terminate this Agreement immediately by serving written notice on the other party in the following circumstances:

• if the other party commits a material breach of any of its obligations under this Agreement which is not capable of remedy;
• if the other party commits a material breach of any of its obligations under this Agreement which is not remedied within 28 days after receipt of a notice from the party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination;

10. Neither party will be liable for any delay or failure to perform its obligations under this agreement if such delay is due to an act of God, fire, flood, earthquake, explosion, accident, acts of the public enemy, terrorist acts, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, change of law or strike (each a “Force Majeure”).

11. If a delay or failure of a party to perform its obligations is caused by, or anticipated because of, Force Majeure, the performance of that party’s obligations will be suspended.

12. If a delay or failure by a party to perform its obligations because of Force Majeure exceeds 30 days, either party may immediately terminate this agreement by giving written notice to the other party.

 

13. Each party will indemnify the other, its affiliates and agents from and against any and all claim, damages, losses, liabilities or fees arising in connection with any costs incurred as a result of a breach of any term of this agreement.

14. LMCO is not responsible –

• If the proposed time frames for delivery of the Services change.

• if any equipment or software including any browser or server software operated by a third party fails;

• if a computer virus enters the User’s system as a result of the Services; or

• for any damage to equipment, hardware, programs or data, whether stored or used with the Services or otherwise, including the costs of repairing such equipment or hardware and the costs of recovering such programs or data.

15. To the extent permitted by law, other than to the extent expressly set out in this agreement, LMCO makes no representations or warranties either express or implied –

• in relation to the quality, merchantability, performance or fitness for a particular purpose of the Services;

• that the Services will meet the User’s requirements;

16. LMCO will not be liable for any loss, or failure to provide the Services, which is caused by an unexpected delay or which arises as a result of LMCO relying on any false, misleading or incomplete information or for any indirect or consequential losses.

17. User must provide a minimum 7 days’ notice for any alteration or halt to the Services after commencement.

18. If User wishes to continue the Services after the completion of the Services, confirmation to proceed must be given at least two weeks prior to the completion of the Services to avoid additional set-up fees.

19. Any notices in relation to this agreement must be served to the parties at the following email addresses –

LMCO – legal@localmarketingco.com.au

User – the email address set out in the Schedule.

20. If any provision of this agreement is found to be illegal or unenforceable by any court of competent jurisdiction then that provision will be deemed to be deleted, but without affecting the remaining provisions.

21. A failure by either party to exercise or enforce any rights available to that party or the giving of any forbearance, delay or indulgence is not to be construed as a waiver of that party’s rights under this agreement.

22. This agreement (including the Schedule and any other documents referred to in the Schedule or this agreement) contains the entire agreement between the parties and there are no other representations, promises or conditions.

This agreement is governed by the laws of Victoria, Australia