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Be Media Terms and Conditions
Last Updated: September 2020
The following Terms and Conditions (Terms) apply to all Agreements entered into with Be Media Group Pty Ltd, ACN 163 351 237 (Be Media). The “Services” include, but are not limited to digital strategy, web development and hosting, online advertising services, email marketing, and social media services. These Terms and Conditions apply to the use of this website, including the purchase of Services.
By using Be Media’s Services, you agree to be legally bound and to abide by the Terms, just as if you had signed this Agreement. In these Terms, “we”, “us” and “our” refers to Be Media, and “you” or “your”, means the person(s) entering into this Agreement and includes his agents or permitted assigns.
“Agreement” means your agreement with us and includes these terms and conditions.
1. TERMS AND CONDITIONS
1.1 You agree and continue to agree to use the Services in a manner consistent with all applicable laws and regulations in accordance with these terms.
1.2 These Terms and all quotations and variations are incorporated into and are part of any Agreement with Be Media signed by you.
2. MINIMUM TERM, TERMINATION AND SERVICE RENEWAL
2.1 You agree to the Minimum Term specified in the Be Media Agreement (Minimum Term). You authorise us to deduct the initial payment and monthly payments during the Minimum Term and any renewed term, subject to the Agreement and these Terms.
2.2 Your campaign will automatically renew on a monthly basis after the Minimum Term, unless written notice of intent to cancel is received within 60 business days of the Minimum Term expiry, after which, a period of 60 business days cancellation notice is required prior to each monthly renewal date.
2.3 If you terminate your use of the Services prior to the completion of the Minimum Term, you must pay the Cancellation Fee within 5 business days. The Cancellation Fee is the sum of the remaining monthly payments agreed to in the Minimum Term.
2.4 You must comply with these Terms at all times in your use of the Services. You will not engage in any conduct, which in the discretion of Be Media, restricts or inhibits any other person from using or enjoying the Services. You agree to use the Services only for lawful purposes. You are prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state, national or international law.
2.5 Be Media may elect to electronically monitor the Services for adherence to these Terms and may disclose to the extent permitted by law any content, records or electronic communication of any kind (i) to satisfy any law, regulation or authorized governmental request, (ii) if such disclosure is necessary to operate the Services, or (iii) to protect the rights or property of Be Media or its partners.
2.6 Be Media reserves the right to prohibit conduct, communication or content which it deems in its discretion to be harmful to individual users or other third-party rights, or to violate any applicable law.
2.7 If you do not comply with these Terms, Be Media reserves the right to terminate your use of the Services at any time. If we terminate the Agreement with you under this clause, you must pay the cancellation fee within 5 business days.
3A. SEARCH ENGINE MARKETING AND PAID ADVERTISING SERVICES
3A.1 Be Media will setup online advertising campaigns and deliver paid traffic to your website. If paid traffic cannot be delivered to the website in question, due to the editorial policies of search engines and publishers regarding the acceptance of advertiser web properties, then the client will be notified of the situation in writing. Be Media is not to be held liable in this situation.
3A.2 Costs associated with media and clicks generated from running this service, may be charged directly by search engines and publishers. You authorise Be Media to provide your credit card details to the third party platforms for this purpose. The fees will appear as separate charges on your credit card statement.
3A.3 You agree that we are not responsible or liable for any incorrect payments charged to you by third party platforms. You agree that you will communicate directly with the relevant platform should any incorrect charges be made on your credit card or to your bank account by third party platforms.
3A.4 All accounts initially set up by Be Media are the property of Be Media and will not be provided to the client upon cancellation of their service.
3A.5 You must comply with search engine guidelines for Campaigns, which can be found at https://support.google.com/adspolicy as well as https://about.ads.microsoft.com/en-au/resources/policies.
3B. SEARCH ENGINE OPTIMISATION (SEO)
3B.1 Be Media will undertake the optimisation of your website, as per best practice techniques used in the industry.
3B.2 You agree and understand that SEO does not provide any guaranteed results, as Be Media does not control the algorithms of search engines, and that results can vary based on your website history, industry and many more factors.
3B.3 You agree and release us and any employee, owner, or director of Be Media, from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
3C. WEBSITE DEVELOPMENT
3C.1 Be Media reserves the right to process final invoicing on the completion of the website design and development services as per your agreement with Be Media.
3C.2 If a client discontinues the development of a website at any stage prior to completion, they are responsible for any fees associated in the completion of the website.
3C.3 An approximate timing schedule is provided at the time of the agreement. Failure to provide content or other items within the specified time will delay the setup of the website.
3C.4 Clients will be given Editor CMS access that allows them to upload any content and products themselves.
3D. WEBSITE MANAGEMENT AND UPLOAD OF CONTENT
3D.1 Customers who provide Be Media access to make changes to their website, do so with the understanding that Be Media is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, customers are expected to have a regular backup system in place and by signing the Agreement with us you warrant that you have a regular and secure back up system in place.
3E. WEBSITE HOSTING
3E.1 In order to keep our servers up to date, Be Media will perform scheduled maintenance to
3E.2 Be Media will keep regular backups of your website while hosted on Be Media servers.
A client whose website is not hosted with Be Media is responsible for backing up their website on a regular basis. In the event that your website goes down Be Media is not responsible for bringing your website back online. servers from time to time. Be Media will strive to keep such service interruptions to a minimum, perform scheduled maintenance at off-peak times and provide advanced notice of scheduled maintenance routines.
3E.3 Our AWS hosting server does not allow for client-server access to further protect and secure all hosted websites on our servers.
3E.4 If an account is not paid in full within 7 days of the due date then Be Media reserves the right to suspend your website (without notice) until all payments have been received.
3E.5 Bandwidth coverage fees will apply on accounts that exceed the data limits.
3F. ADVERTISING INFORMATION
3F.1 Be Media will establish an advertising campaign for you, in respect of the Services ordered by you, under the agreement for the amounts and duration set forth in agreement.
3F.2 You acknowledge that Publishers may take several days to distribute the Campaign through their network and publications. Be Media shall have no liability, and you will not be entitled to terminate this Agreement, as a result of any such delays.
3F.3 Be Media shall provide you with true, accurate and current information for all Ads placed with Publishers. Be Media will provide all materials for the Advertising in accordance with your policies in effect from time to time, including without limitations the manner of transmission to Be Media and the lead-time prior to publication of the Advertising. You agree that Be Media has the right but not the obligation to make modifications to Ads prior to their delivery to Publisher and further understands that, once Ads are delivered to Publisher, Business may be limited in its ability to make further modifications to said Ads. For clarity, it is not Be Media’s responsibility to ensure that the Advertising content provided by you are true and accurate and complies with applicable laws.
4. SUSPENSION OR CANCELLATION OF SERVICES
4.1 You expressly and irrevocably agree that we reserve the right to suspend or cancel any or all of the Services if:
a. You have any outstanding invoice or account.
b. Your account is in dispute or dispute resolutions procedure, court order, judgement, findings or determination.
c. You fail to comply with any provision in the Agreement or these Terms.
d. There is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party’s rights.
e. We deem your use of our Services may jeopardize the operation of the service, our suppliers or us.
f. We deem any other reason as satisfactory to protect us, our staff and/or our suppliers.
4.2 If your account is cancelled under this clause:
a. You must pay the cancellation fee within 5 business days.
b. We may immediately delete all data held prior to cancellation.
c. We may perform any action without notice.
d. You release us of any claim arising from suspension, cancellation or termination of any of the Services.
5. PRICING, BILLING AND PAYMENT TERMS
5.1 All quoted prices are in Australian dollars and exclude G.S.T., unless otherwise noted. Tax invoices will be sent upon payment.
5.2 You acknowledge and agree that payments will be processed by us or a third party by credit card or debit payments and you provide your credit card or bank account details for this purpose and authorise us to make these payments.
5.3 You acknowledge that Be Media may change its pricing structure at any time after the expiry of the Minimum Term period. Any change in the pricing structure will be notified to you 21 days prior to the pricing changes being affected.
5.4 Invoices are due in 7 days from receipt of invoice.
5.5 Be Media reserves the right to charge 15% interest per month on overdue invoices until payment is received in full.
5.6 Be Media reserves the right to employ the services of a debt collector in the event that a chargeback for Services is received. We reserve the right to recover any cost associated with recovering the debt (including legal and debt collector costs).
5.7 Be Media reserves the right to employ the services of a debt collector in the event that any Fees remain unpaid 7 days after they were due. We reserve the right to recover any costs associated with recovering this debt (including legal and debt collector costs).
5.8 Be Media reserves the right to amend pricing in the Agreement if errors have been made.
6. REPRESENTATIONS AND WARRANTIES
6.1 You expressly agree that use of the Be Media Service is at your sole risk. The Be Media service is provided on an “as is” and “as available” basis. Be Media expressly disclaims all warranties of any kind, express or implied, including without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement. Notwithstanding any other provisions of these Terms and Conditions, where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following: (a) if the breach relates to goods, (i) the replacement of the goods or the supply of equivalent goods, (ii) the repair of such goods, (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods or (iv) the payment of the cost of having the goods repaired; and (b) if the breach relates to Services, (i) the supplying of the Services again or (ii) the payment of the cost of having the Services supplied again.
7.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Be Media control and could result in a breach of security. You hereby expressly waive any claim against Be Media arising out of the loss of data through corruption, piracy, breach of security or for any other reason.
8. LIABILITY AND INDEMNIFICATION
8.1 To the maximum extent allowed by law, Be Media and any of its parents, members, subsidiaries, affiliates, service providers, licensors, officers, directors or employees shall not be liable for any direct, indirect, special, incidental or consequential damages (no matter how they arose, including negligence), or for interrupted communications, lost data or lost profits, arising out of or in connection with the Services. Further, Be Media will not have any liability for any losses arising because its Services are not operational or accessible.
8.2 You will at all times indemnify and hold harmless Be Media and its officers, employees and agents (those indemnified) from and against any loss (including legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
a. a breach by you of your obligations under the Agreement or these Terms;
b. any misuses of the Services by you or any of your customers or third parties related to you;
c. any wilful, unlawful, or negligent act or omission of you, or
d. any infringement by you of any third party’s intellectual property rights
8.3 Each indemnity under these Terms is a continuing indemnity and will constitute a separate and independent obligation of you from your other obligations under the Agreement or these Terms and will survive the completion and termination of the Agreement.
9.1 Copyright in the Be Media website (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in your location, and except as expressly authorized by these Terms and Conditions, you may not in any form or by any means:
a. adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website; or
b. commercialise any information, products or Services obtained from any part of this website without our written permission.
10. USE OF TRADEMARKS
10.1 You acknowledge that all intellectual property of Be Media, such as trademarks, trade names, patents, registered designs and any other form of intellectual property rights derived from the Services or any other material, as may be provided by Be Media, remains the property of Be Media.
10.2 You indemnify and will at all times keep Be Media indemnified against any action, claim suit or demand, including a claim, suit or demand for or liability to pay compensation damages and costs or expenses arising out of or in respect of any breach of any third party’s intellectual property rights.
10.3 You must immediately notify Be Media of any claim, demand, threat or notice of proceedings against you, relating to any breach of intellectual property rights.
10.4 If you use any of our trademarks in reference to our activities, products or Services, you must include a statement attributing that trademark to us. You must not use any of
a. in or as the whole or part of your own trademarks;
b. in connection with activities, products or Services which are not ours;
c. in a manner which may be confusing, misleading or deceptive;
d. in a manner that disparages us or our information, products or Services (including this website).
11. PRIVACY AND CONFIDENTIALITY
11.2 The terms of this Agreement and details of and concerning your business arrangements, dealings and relationship with us are confidential and may not be disclosed, divulged or otherwise placed at the disposal of any other person who is not a party to this Agreement except:
a. as required by law; or
b. with the mutual written consent of the parties to this Agreement (which consent may be withheld by either party in its absolute discretion).
11.3 Each party acknowledges to the other party that:
a. the other party may obtain injunctive relief against it for any breach by it of clause 11.2 above; and
b. it will pay to the other party whatever damages, loss or expense which the other party may incur, whether directly or indirectly, as a result of such breach, including consequential loss.
11.4 The parties agree that the provisions of clause 11.2 and 11.3 above continue in full force and effect for a period of three (3) years after the termination of this Agreement.
12. DISPUTE RESOLUTION
If a dispute arises between us, the following procedure applies:
a. A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
b. A party must not commence legal proceedings (except proceedings seeking urgent injunctive relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
c. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
d. If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or such other period as is agreed).
e. Unless otherwise agreed by the parties, if any dispute cannot be settled by negotiation between the parties or their representatives the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms. This paragraph survives termination of these Terms.
f. Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms.
g. The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
13. GENERAL PROVISIONS
13.1 You acknowledge that Be Media personnel are not authorized to make any modifications to these Terms or to make any estimates that you may rely on and that Be Media is not relying upon any such modifications or estimates or any representations, warranties or guarantees other than as expressly stated herein.
13.2 This Agreement and the relationship between Be Media shall be governed by the laws of Western Australia. Any action by either party hereto arising out of or in connection with this Agreement or the Services shall be brought in a court of competent jurisdiction located in the State of Western Australia.
13.3 Nothing in this Agreement gives rise to or is intended to give rise to a relationship between Be Media of employee and employer, principal and agent or partnership.
13.4 This Agreement may not be amended, supplemented or modified orally, but only by an agreement in writing signed by each of the parties hereto. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.
13.5 This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. Any such purported transfer, assignment, pledge, or hypothecation (other than by operation of law) shall be void and of no force and effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective hairs, executors, administrators, successors and permitted assigns.
13.6 The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provisions to be drafted.
13.7 In the event that Be Media’s website has any Terms (including without limitation in any “click through” agreements) that are inconsistent with the provisions of this Agreement, this Agreement shall take precedence; provided, that any such agreements shall otherwise control with respect to any actions or activities outside of the domain of this Agreement.
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