TERMS OF SERVICE
Forge Studio as subsidiary of PROPGEN PTY LTD ABN 38 647 480 386 (us, our or we) has agreed to provide to the person who accepts this document as client (you) (each a party) the services (each a Service and together the PROPGEN Services) specified in any invoice or proposal (Offer) on these terms and conditions (Ts and Cs). These Ts and Cs (including the Schedule) are incorporated into and form part of our Offer.
After payment of any deposit specified in these Ts and Cs or our Offer (Deposit) or the Setup Costs (see below), the PROPGEN Group Services are invoiced on a 28-day basis (month, monthly, or any words to that effect, means the 28-day period from a calendar date e.g., a month commencing 14 June ceases on 11 July).
2. Entire Agreement
The Agreement forms the entire agreement between the parties about its subject matter and supersedes all other discussions, negotiations, representations, arrangements, warranties, or agreements.
3. Acceptance of the PROPGEN Services
On you accepting our Offer, it will be binding on all parties (Agreement). You can accept by either signing these Ts and Cs or by paying the Deposit to us (Acceptance).
If you do not accept the Offer within 28 days from the date that we provide it to you, we are not obliged to proceed with the offer at our option. Prior to Acceptance, we may withdraw the Offer by notice to you.
4. Minimum Term
The minimum period which you must acquire each Service is set out in the respective clause for that Service, unless otherwise indicated in the Schedule in which case the period in the Schedule will apply (Minimum Term). The Minimum Term for each Service commences once we inform you that the Service is operating and is suspended for any period which we agree in writing with you. If suspended, the Service will recommence on our written advice to you.
5. Duration of Agreement
This Agreement commences on Acceptance.
For each Service which specifies a Minimum Term, subject to clause 4, the Agreement in respect of that Service will continue after the end of the Minimum Term for that Service, until it is terminated by either party on one months' notice or otherwise ends in accordance with the Agreement.
Each Service may be terminated independently of any other PROPGEN Group Services after the end of its Minimum Term.
For each Service which does not specify a Minimum Term, the Agreement for that Service will continue until the later of us finishing delivery of those Service or termination of this Agreement.
6. Fees and payment
Our fees for providing each Service (Fees) are outlined in the schedule to these Ts and Cs (Schedule). Fees for each Service comprise:
a) the Deposit, any one-time cost or setup cost (Setup Cost) is payable on Acceptance and is not refundable; and
b) the sum of the MMF (see below) and the monthly ad spend, if applicable (Monthly Fee). The MMF is paid for each month of the Minimum Term and any extension agreed. It is payable monthly in advance with the first monthly fee being due upon commencement of the campaign. Each MMF is payable before the month to which the invoice relates. The monthly ad spend is due in accordance with the Ts and Cs of the applicable service.
The MMF in each month is determined as the greater of the monthly management fee as specified in the Schedule for the relevant Service and 20% of Monthly Ad Spend, unless otherwise stated. Where the amount payable is greater than the Monthly Fee paid for the relevant month, we will invoice you for the difference in the following month.
We will issue an invoice to you for the Fees. With the exception of the Deposit, the Setup Cost and the first Monthly Fee (which are payable on Acceptance), you agree to pay each invoice on or before its due date. If we request that you pay the Monthly Fee by direct debit authority, you will promptly set up a suitable authority.
You must pay our invoices in full without set off, deduction or counterclaim and you acknowledge that this clause may be relied on in bar of any such proceeding.
We facilitate ad spend on your behalf as your disclosed agent. We have no liability to pay these amounts arising in respect of the ad spend. These amounts of the outstanding monthly ad spend are totally and solely your responsibility. You must provide us with credit card information which we will make available to the relevant supplier of those services for payment of the monthly ad spend. If your credit card is declined for any reason, you must rectify the issue or provide us with an alternative payment method within 48 business hours at our request. You will maintain during the Term a credit card account with sufficient available credit to satisfy any charges under this Agreement.
You irrevocably authorise us to provide your information to the applicable provider (for Facebook, Google Ads or Remarketing services including AdRoll) in the event it is requested from us to recover any outstanding ad spend balance.
You authorise us to disclose detail of your credit card to third parties for the purposes of this Agreement and indemnify us in respect of any claim or liability arising from the misuse of your credit card other than for our fraud or wilful misuse and release us from any claim or liability not indemnified.
You must provide us with any information requested or access to any of your systems that we reasonably require to perform each Service. Your systems include any electronic offering, device or computer code, your website, Google Ads account, Google Analytics account, Facebook Page, Facebook Ad Management account, cPanel account, FTP account or CMS account. You must provide this information or access within the later of 14 days of Acceptance or when the information or access becomes first available to you.
8. Approval and provision of information
We will seek your approval to launch any version of a Service which allows public access (Approval). As part of the Approval process, you will be able to preview the Service. Any request, other than clause 9, for amendments or improvements to the Service (whether for usability, functionality, design or otherwise) beyond the scope of the Agreement will incur additional fees.
You will provide us with any information (or answers to our requests) in accordance with the timelines specified by us (whether in our Offer or otherwise). If you do not provide a response within 5 Business Days, unless otherwise stated, from the date the request was made, you will be deemed to have given your Approval.
9. Web design, landing pages and sales funnels
Where we agree to design and develop a website, landing page or sales funnel (Design Service), you agree:
a) to pay, as a Setup Cost, 60% of the Fee for the Design Service prior to the commencement of any work on the Design Service; and
b) the remaining 40% of the Fee is due prior to the commencement of any work on the development stage (which may be detailed in our proposal).
You are entitled to one complimentary amendment to the Design Service. Any further amendments may be accommodated at our absolute discretion and may incur additional fees. If delays caused by you cause the Design Service to extend beyond the agreed delivery timeline by more than 6 weeks, we may terminate the Design Service and you will be responsible for the full Fees of the Design Service.
c) In the event of a subscription-based website agreement, Forge Studio retains full ownership of the developed website, notwithstanding any payments or contributions made by you.
d) Any domain names purchased as part of or in conjunction with our services will be owned solely by Forge Studio. You acknowledge and agree that while you may use the domain for the duration of your subscription or agreement with us, ownership rights remain with Forge Studio.
10. Google Ads
Where we agree to develop and implement an advertising campaign for you which uses the Google Ads (previously known as Google AdWords) platform (Google Ads Service), you agree that:
a) the Minimum Term of the Google Ads Service is 6 months.
b) we may create a Google Ads account on your behalf, including Google analytics if required (Google Ads Account).
c) the Google Ads Account is subject to Google’s Ts and Cs and advertising restrictions as modified from time to time.
d) you will not have direct access to the Google Ads Account at any time during the Agreement or after termination of the Agreement.
e) we own all intellectual property in, and will be solely entitled to all rights in respect of, all content created in associated with the Google Ads Service.
f) in addition to the Fee for the Google Ads Service, you are responsible for any charges imposed by Google in connection with the Google Ads Service (Google Ads Charge). If a Google Ads Charge is not paid on demand, we may, without penalty, suspend your Google Ads Service or any other PROPGEN Service until you pay the Google Ads Charge. Notwithstanding the suspension of the Google Ads Service or other PROPGEN Service, you must continue to pay the Fee for the relevant PROPGEN Service during that suspension).
g) we may delete the Google Ads Account at any time without notifying you.
h) subject to clause 19, we do not warrant that the Google Ads Service will generate any increase in your sales or business activity.
i) you will not hold us liable for any loss or damage arising from Google Ads Service (other than as a result of our negligence).
j) you acknowledge and agree that Google reserves the right to refuse an advertisement at any time, for any reason (Google Refusal) and that such refusal may be outside of our control.
Where we receive a Google Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that even if we receive a Google Refusal (other than as a result of our negligence), you remain responsible for the Fees for the Google Ads Service.
11. Search Engine Optimisation
Subject to the following and any express restriction in our Offer, we will provide Services to optimise your website (SEO Service), in accordance with the performance guarantee and timeframe specified in our Offer (SEO Guarantee). We guarantee to rank at least 10% of proposed key phrases on page 1 of Google (pages from Australia, unless otherwise specified here: [country]) within 90 days, 30% in 180 days and 60% in 365 days. If we do not achieve an SEO Guarantee within the relevant timeframe, we will continue to provide the SEO Service without further charge during the term of this Service until that guarantee is achieved.
You agree that:
a) the Minimum Term of the SEO Service is 12 months.
b) the SEO Guarantee does not apply where:
i. a new domain has been implemented without an existing, active domain (Aged Domain) redirecting to it.
ii. you modify or remove the "on-page" optimisation work (including theme files and scripting) implemented by us.
iii. your website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty (either automatic or manual from Google), has an unnatural link profile or is deemed by us to be hosted on a slow, unreliable, or blacklisted server.
iv. your website is poorly developed or is hacked; and/or
v. we cannot get access to your website and/or its CMS.
c) the SEO Guarantee commences when we notify you that "on-page" optimisation (including content approval by you) is complete.
d) the SEO Guarantee ends at the end of the initial Minimum Term.
e) subject to clause 19, we make no warranty that the SEO Service will generate any increase in your sales or business activity.
f) you will not hold us liable for any loss or damage arising from the SEO Service (other than as a result of our negligence).
g) Google continually updates its search algorithms, which may change the operation of any SEO Service resulting in a negative impact on your website rankings. In these circumstances, we will endeavour to rectify.
h) any negative impact as quickly as possible but give no warranty that rankings will improve. In rare circumstances, we may have to move your website to a new domain to remove a penalty (and if so, you must accept this recommendation and agree to pay any associated costs for any SEO Guarantee to be applicable).
i) we may place in each footer of your web pages (or mobile applications) our "Digital Marketing by Forge Studio" link.
12. Meta Service
Where we agree to promote your business on Facebook and Facebook’s family of applications (including through advertisements and/or by use of Facebook Ads Manager) (Facebook Service) you acknowledge that the Facebook Service is subject to Facebook’s Ts and Cs and advertising restrictions as modified from time to time and Facebook reserves the right to refuse an advertisement at any time, for any reason (Facebook Refusal).
You agree that:
a) the Minimum Term of the Meta Service is 6 months.
b) we will create a Meta Business Suite ad account on your behalf, including Google analytics if required (Meta Account).
c) in addition to the Fees for the Meta Service, you are responsible for any fees imposed by Facebook in connection with the Meta Service (Meta Fee). If a Meta Fee is not paid on demand, we may, without penalty, suspend your Facebook Service (but the Monthly Fee for the Facebook Service will continue to be charged and payable during that suspension) until the Facebook Fee is paid.
d) you will not have any direct access to the Facebook ads manager at any time during or after the end of the Agreement.
e) we own all intellectual property in, and will be solely entitled to all rights in respect of, all content created in associated with the Meta Service.
f) subject to clause 19, we make no warranty that the Meta Service will generate any increase in your sales or business activity; and
g) you will not hold us liable for any loss or damage arising from the Meta Service.
Where we receive a Meta Refusal, we will take reasonable steps to reverse that decision; however, we may not be successful. You agree that if we receive a Meta Refusal (other than as a result of our negligence), you are still liable to pay the Fee for the Meta Service.
13. Website Hosting Service
In order to improve results, we recommend that your website be hosted on a reliable server, based in your country. You may elect to host your website with us (Hosting Service). If we provide the Hosting Service, you agree that:
a) the Minimum Term of the Hosting Service is 12 months.
b) to protect the integrity of the hosting environment and ensure security, we will not provide you with FTP or cPanel access (but may do so at our sole discretion).
c) we may from time to time be required to perform maintenance, upgrades or replacements to servers (Server Admin) and in those circumstances we reserve the right to suspend access to any Hosting Service. While we will seek to give you notice of any planned Server Admin, where we consider (at our absolute discretion) the Server Admin is urgent we may perform it any time and you acknowledge that this may interrupt your Hosting Service.
d) there will be no adjustment to Monthly Fees for the Hosing Service arising from any suspension due to Server Admin.
If you terminate the Hosting Service, we will:
a. following satisfaction of all amounts owing to us, provide full cPanel and / or FTP access to you (or your 3rd party provider) to allow you to move your website; and
b. no longer be responsible for retaining copies of any data relating to your website, including files, databases or design collateral.
14. Remarketing Service
Where we agree to manage a remarketing campaign for you (Remarketing Service), you agree that:
a) the Minimum Term of the Remarketing Service term is 1 month;
b) you will not have direct access to the Remarketing Service account and all information in that account is our intellectual property;
c) the Remarketing Service will be subject to the Ts and Cs of the relevant remarketing platform (e.g.Meta, GoogleAds and AdRoll or any similar platform (Platform), and that each Platform reserves the right to refuse an advertisement at any time, for any reason (Platform Refusal).
d) if a Platform Refusal occurs, we will take reasonable steps to reverse that decision, however, we may not be successful and you agree that if we receive a Platform Refusal (other than as a result of our negligence), you are still liable to pay the Fees;
e) subject to clause 19, we make no warranty that the Remarketing Service will generate any increase in your sales or business activity;
f) you will not hold us liable for any loss or damage arising from the Remarketing Service;
g) in addition to our Fees for the Remarketing Service, you are responsible for payment of invoices generated by the Platform for their charges, including pay-per-click fees in respect of your Remarketing Service. If an invoice from the Platform is not paid when due, we may, without penalty, suspend your PROPGEN Services until that invoice is paid;
h) we may at our sole discretion allow you to update the creative content relating to the Remarketing Service every 90 days from the date we commence providing the Remarketing Service.
You acknowledge and agree that we may at all and any times provide our services to other clients in the same or similar industry as you.
We do not provide our services on an exclusive basis.
16. Breach and Termination
We may terminate the Agreement by notice to you (without prejudice to any accrued rights) if you:
a) fail to pay an invoice when due.
b) revoke your established direct debit authorisation without providing an alternative.
c) fail to follow our recommendations/advice in respect of the operation of the PROPGEN Services.
d) run your own advertising campaign(s) in direct competition with any Service being provided by us.
e) contravene any other obligations of the Agreement and fail to promptly remedy that contravention.
f) fail to respond to our communication in a timely manner (or in any event within 5 Business Days); or
g) disparage us (in our reasonable opinion) in any way, including on social media, forums, reviews or websites or otherwise fail to act in a professional manner, and fail to resolve that breach to our satisfaction in the period specified in the notice (which other than sub-paragraph (e) will be no less than 14 days.
You may not terminate a PROPGEN Service before the expiry of its Minimum Term without our consent. After the Minimum Term, either party may terminate the Agreement by providing the other party with one month's written notice. If you seek to terminate a Service or if we terminate a Service because of your default before the end of the Minimum Term, you must pay the Termination Fee.
If you fail to pay an invoice by the due date, or you reverse a payment, in respect of any PROPGEN Service, we may:
a) refuse to supply or suspend the operation of any PROPGEN Service until the invoice is paid in full.
b) if payment is not made within 14 days of the due date, commence debt collection action without further notice.
c) terminate this Agreement.
d) change or withhold any logins or access particulars in respect of any PROPGEN Services; and/or
e) charge interest (which if not paid will compound on the monthly anniversary) at10% per annum for PROPGEN Services provided in all Australian states and territories, and according to the relevant legislation in all other regions outside of Australia.
Confidential Information includes the terms of this Agreement and any other information that a party discloses (Discloser) to the other party (Recipient) and includes information that a reasonable person would consider is confidential.
A Recipient must not, without the prior written consent of the Discloser, use or disclose the Discloser’s Confidential Information, unless expressly permitted by this Agreement or required to do so by law or regulatory authority. A Recipient may and may only:
a) use the Confidential Information of the Discloser solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
b) disclose the Confidential Information to its officers, employees or advisers to the extent necessary for the purposes of this Agreement, but only if reasonable steps are taken to ensure that the information remains confidential.
18. Intellectual Property Rights
Each party warrants that:
a) they own or are licensed to use in the manner contemplated by the Agreement the technology used in the PROPGEN Services and all works (as defined in the Copyright Act 1968 (Cth)) including text, graphics, imagery, photography logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software and other content provided by that party (directly or indirectly) (Existing Content), unless specified otherwise in writing; and
b) Existing Content which they provide to the other party:
i. does not infringe the intellectual property rights of a third party;
ii. is not fraudulent, stolen, or otherwise unlawful;
iii. does not violate any applicable law, statute, ordinance or regulation (including those governing export control, consumer protection, unfair competition, or criminal law);
iv. does not unlawfully threaten or harass any person (in our reasonable opinion) or is defamatory (or any equivalent); and
v. does not contain viruses or other computer codes, files or programs which limit or destroy the functionality of other Existing Content or computer hardware.
We reserve the right to refuse any Existing Content that we consider to be in contravention of any of the above.
Each party will retain all its rights in respect of its Existing Content. You agree that we own all the Content created by us in connection with the Agreement (Contributed Content). We retain all rights and ownership over its Contributed Content. You are permitted to use our Contributed Content under this Agreement per our express authorisation . You will not have any rights to the Contributed Content even after the payment of our invoice(s) and/or the termination of the Agreement.
To the maximum extent permitted by law, you agree that all implied conditions and warranties are excluded from the Agreement, except to the extent that the exclusion would contravene any laws or cause this condition to be void (Non- Excludable Condition).
Each party warrants that:
a) it has properly authorised execution of the Agreement.
b) it has full power to execute, deliver and perform its obligations under the Agreement.
c) the Agreement constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms.
d) they are authorised to use any Content which they provide to the other party.
e) no Content which it causes to be published by, or displayed or associated with, will contain any illegal or unethical material (in our opinion, acting reasonably) (for the avoidance of doubt, where a party uses Content supplied by the other party, the user is deemed not to publish, display or be associated with that Content).
20. Limitation of liability
Our liability for a breach of a Non-Excludable Condition is limited at our option to the re-supply of a replacement or equivalent Service, the rectification of the Service or payment of the costs of having the Service replaced or rectified.
To the maximum extent permitted by law, we exclude any liability to you or any other person for any loss or damage consequential or otherwise and not limited to any loss of profits, revenue or goodwill arising out of or in connection with the provision of the Service provided, including:
a) loss of your data or interruption of your business.
b) any consequential damages or loss by you.
c) a failure to supply a Service caused by matters beyond our reasonable control, including acts of God, acts of any government, war, or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts and the inability to obtain necessary resources.
To the maximum extent permitted by law, the parties agree that:
a) we will not be liable for:
i. any special, incidental, indirect, punitive, or consequential damages (including, lost profits, injury to goodwill; and
ii. damage to persons or property, resulting from the use of the PROPGEN Services, including in any business processes, or otherwise.
b) you assume all risks and liability in respect of any use of the PROPGEN Services.
c) a party’s liability to the other party for any loss arising from that party’s negligence, breach of this agreement (except clause 6) or warranty is limited to the lesser of the invoice value of the relevant PROPGEN Service in respect of which the claim is based and $2,000 (other than expressly excluded in this clause).
d) it is your responsibility to ensure all copy and creative materials produced under the Agreement are compliant with any and all relevant legislation or regulations that apply.
e) you discharge us from any other loss, claim, demand, or cause of action.
You unconditionally and irrevocably indemnify, hold us indemnified and keep us, our officers, employees and agents harmless against any and all action, claim, demand, loss, liability or cost (including legal cost on a solicitor and client basis), whether arising under contract, tort or a statute (including by a third party) that arises, or results from, or is in any way connected with the PROPGEN Services, including the sale of any product or service via your website.
If any provision of these Ts and Cs are held invalid or unenforceable for any reason or for any purpose, such invalidity or unenforceability shall not affect the remaining provisions if on deletion of the offending provision the remaining provisions of the contract can be given effect in line with the basic intention of the parties.23. Your responsibilities
You must provide us with all the relevant requested information and documentation in a timely manner and within any time frames required for us to complete our work.
You warrant that any material or content you provide us does not infringe on the intellectual property rights of a third party.
You will be responsible for any fees and charges applied by your financial institution for each unsuccessful debit attempt, any failed payment fee and with any collection fee, including any debt recovery agency or legal fees, incurred by us. You authorise us to attempt to re-process any unsuccessful payments after 3 Business Days. If the payment remains unsuccessful after 5 Business Days, you authorise us to suspend all PROPGEN Services, pending full payment. In the event of a failed payment, you agree to pay us an administrative fee of $12 per failed transaction within 5 Business Days of an invoice being provided.
If you fail to fulfill your obligations in accordance with this clause, we may be unable to perform the services as stated. The fees for the services will still be due and payable as required even if we are unable to perform the services due to your failure to fulfill your obligations in accordance with this clause.
24. Goods and Services Tax (GST)
Unless the contrary intention appears, any published or advertised price and/or invoice is exclusive of GST.
For the purposes of this clause, the terms words defined in A New Tax System (Goods and Works Tax) Act 1999 (Cth), have the same meaning in this Agreement.
If GST has any application to any supply made under or in connection with this Agreement, the party making the supply (Supplier) may in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from the recipient of the supply (Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
Any additional amount on account of GST recoverable from the Recipient under this clause will be calculated without any deduction or set-off of any amount and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under this Agreement.
The Supplier must issue to the Recipient a tax invoice and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable or in respect of any supply under this Agreement.
Where an adjustment event in relation to a supply under this Agreement has occurred, the Supplier must issue an adjustment note to the Recipient no later than ten Business Days after that adjustment event.
Where you confirm in the schedule that you are an overseas client for GST purposes, we acknowledge your request that the PROPGEN Services are an export service provided to you for your enjoyment overseas and accordingly are GST free.
All notices must be in writing and may be given by personal delivery, post or email. A notice is deemed to be received if:
a) by personal delivery, on the Business Day after delivery;
b) sent by post, on 5 Business Days after the day of posting; and
c) sent by email, on the Business Day after sending (unless within 12 hours of sending, the sender receives an automated delivery failure notification).
26. Dispute Resolution
If a dispute, controversy, or claim arises between the parties about any fact, matter or thing in connection with this agreement, the dispute, controversy or claim must be determined in accordance with this clause. Any dispute, controversy or claim between the parties shall be resolved by mediation in accordance with the governing rules of Victoria, Australia. Subject to the parties’ agreement, the mediation:
a) is to occur in Melbourne, Victoria, Australia.
b) is to occur within 30 days of the notice given.
c) is to take place in English.
27. Governing Law
This agreement and the transactions contemplated shall be governed by, and interpreted in accordance with, the Jurisdiction of Victoria, Australia. The United Nations Convention on contracts for the international sale of goods shall not apply to this agreement. Any action seeking legal or equitable relief arising out of or relating to these terms shall only be brought about under the jurisdiction of the courts of Victoria, Australia.
The laws of Victoria govern this Agreement and each party submits to the exclusive jurisdiction of the courts of Victoria, Australia.
Please refer to https://forgestudio.global/misc for miscellaneous components of this contract, such as definitions and interpretations.