Terms & Condition | Excitation | Demanding Better Digital.

General Terms and Conditions

These are our standard terms and conditions of Excitation Pty Ltd ABN 86 650 988 328 (“Excitation”).

A Customer Order, Instructions, or Proposal, each an “Order” if accepted and agreed to by the parties, sets forth which products and services are being purchased by the client (“you” or “Client”) who signed the Order and the costs for such services, and other relevant details. These are incorporated by reference into these Terms and Conditions and are made a part of any Order submitted to Excitation and govern the relationship between you and Excitation. All Orders are subject to acceptance by Excitation, in its sole discretion. The Order, these Terms and Conditions and the documents and/or links referenced in such documents are together referred to as the “Agreement.”

If you are accepting on behalf of your employer or another entity, you represent and warrant that:

you have full legal authority to bind your employer or such legal entity to this Agreement
you have read and understand this Agreement and
you agree, on behalf of the Client, to this Agreement.

We reserve the right to make changes to these Terms and Conditions at any time. We shall provide notification of changes in these terms by updating the last modified date set forth above. All such changes shall be binding upon you once posted online at our website www.excitation.com.au/terms unless such changes are material in which case such changes shall not take effect until the next time you sign an Order.

1. Products and Services

These include but are not limited to, advice regarding or the procuring of the following products or services:

Google AdWords
Microsoft (Bing) Ad’s
Facebook Ads
Search Engine Optimisation
Web Development
Business Consulting
Telecommunication services including call tracking including recording and monitoring services and any similar services that may be described in an Order;

and additional products and services that may be described in the Order and provided by agreement between the parties.

2. Telecommunication Services

(a) Information and call recordings held in our systems, or the system of our suppliers will only be available to you whilst this Agreement remains in place;

(b) Notwithstanding any existing terms of this Agreement, you agree we shall not be liable to you for any costs, damages, penalties, fines, or other losses as a result of:

1. us enabling recording or accessing stored recordings for your telephone calls
2. you, your staff, agents, contractors, or associates accessing recordings stored on your behalf
3. any formal legal action taken against you by participants to recorded telephone calls;

(c) Notwithstanding any existing terms of this Agreement, you agree we shall not be liable to you for any costs, damages, penalties, fines, or other losses as a result of:

1. 1. us enabling recording or accessing stored recordings for your telephone calls
  2. you, your staff, agents, contractors, or associates accessing recordings stored on your behalf
  3. any formal legal action taken against you by participants to recorded calls;

(d) You acknowledge your staff, agents, contractors or associates have been informed by formal means that calls to applicable numbers and services will be recorded and indemnify us against any such claims that arise as a dispute of this Agreement;

(e) You agree to take full responsibility for informing callers to these numbers and services that calls may be recorded, except where the message, recording or notifications informing callers is hosted by us or our, where this applies, the liability of the provider of this service is limited to the insurance policy coverage for professional liability or professional indemnity;

(f) You acknowledge that we do not guarantee compliance of call recording services to any industry standard governing information security, financial information or personal information;

(g) This agreement shall remain active until all recorded messages are removed from our systems or the systems from our suppliers;

(h) You may opt out of these specific terms at any time by requesting call recording to be disabled and all recorded calls removed from our or our supplier’s systems; and

(i) You expressly agree that the terms set forth under this Agreement remain applicable and active until all recordings are securely removed from our or our supplier’s systems.

3. Our Commitment

We will commit to:

Recording all inbound calls as per the applicable services described in this Agreement;
Provide access to recordings to your delegated staff;

Upon request, securely remove all or any recordings as identified by this Agreement;
Recording all inbound calls as per the applicable services in this Agreement;
Provide access to recordings to your delegated staff;
Store recordings indefinitely until such time as this agreement is terminated; and
Upon request, securely remove all or any recordings as identified by this Agreement

Our Reservation of Rights

We may:

Disable the call recording services where it is deemed in our interests to do so;
Perform maintenance on our recording systems, cause interruption to call recording or remove recordings from our systems;
Provide 30 days’ notice of cancellation of the call recording services, and
Disable the call recording services where it is deemed in our interests to do so.

5. Payment Terms

Once an Order has been accepted by Excitation, you will be responsible for payment in full of all fees hereof. You must pay for all amounts payable under this Agreement either by credit card (the “Client Card”), by direct debit (electronic debit from your bank account) or such other form of payment as Excitation may, in its sole discretion, permit.
Payment is required each month in advance for the services provided as stated in the Order. If payment is made via direct debit, it is your responsibility to ensure sufficient funds are available on the date of each direct debit.
You agree to pay any bank charges, dishonour charges, collection or legal fees incurred by Excitation in the event the direct debit payments are declined.
You also agree to pay interest on overdue payments that remain outstanding for thirty (30) days or more at a maximum cumulative rate of 1.5% per month on the total amount outstanding.

If any direct debit payments are dishonoured and remain in arrears for more than 7 days, Excitation will immediately place a stop on your advertising until the dishonoured payment has been paid in full.

6. Term and Termination

The Agreement shall commence upon execution of an Order and shall continue until all services under the Order have been completed or terminated in accordance with the terms of this Agreement.
If you give written notice to Excitation of the termination of services (“Termination Notice”) at least thirty (30) days prior, then such termination will take effect thirty (30) days from the date of the written notice (“Termination Date”).
Subject to clause 6(g) this Agreement cannot be terminated until and unless any minimum fixed term set out in an Order and agreed to by the parties has expired, notwithstanding the provisions of clause 6(e), except where the parties agree in writing to such a termination.
You must pay all fees in relation to the services that accrue prior to the date of termination.
Excitation may terminate at any time for any reason on written notice to you (which may be provided by email).
You may, on written notice to Excitation (email is acceptable) revoke a Termination Notice within thirty (30) days after you have provided Excitation with the Termination Notice, in which case the Order will be reinstated and all applicable campaigns, if they had been stopped, will be re-initiated upon payment in full of all amounts owed.
Either you or Excitation may terminate the Agreement (which will terminate all current Orders) on thirty (30) days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations hereunder and such breach has not been materially cured by the conclusion of the Notice Period.
For the avoidance of doubt, Excitation makes no guarantees with respect to the performance of any campaign or any other service and therefore such performance shall not be a basis for termination pursuant to this Section.
You understand and acknowledge that due to the nature of the Internet, certain information regarding you that was posted on the Internet as part of the advertising campaign may continue to be available on the Internet following termination of the advertising campaign and/or the Agreement.
All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to Excitation as of the effective date of termination.

7. Refunds

You understand and agree that you will not be entitled to any refunds of amounts already paid to Excitation, unless Excitation terminates at any time for any reason on written notice to you, in which case you shall only be entitled to a refund for the unspent balance of the then applicable Cycle Payment or equivalent, which shall be your sole remedy.

8. Privacy

You shall, at all times, post a privacy policy on your native web site (the “Existing Site”) and comply with such privacy policy. The privacy policy must comply with all applicable laws. You shall ensure that your privacy policy does not contain provisions that are inconsistent with the nature of the services being provided by Excitation.
You understand and acknowledge that your failure to maintain a privacy policy that complies with the foregoing requirements may result in your campaign not being run or being suspended and expose you and Excitation to liability which you shall fully indemnify Excitation for.

9. Intellectual Property

You hereby grant to Excitation and the publishers of advertising material (“Publishers”) a non-exclusive, royalty-free, worldwide licence to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit during the term of this Agreement any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips and other information (“Client Content”) you provide in connection with any advertising campaigns and the Existing Site, to the extent necessary for Excitation to perform the advertising campaigns. Except as set forth in this Agreement, title to and ownership of all intellectual property rights of all Client Content shall remain with you or your third-party licensors.
You agree that Excitation may, during the term of this Agreement and thereafter, include your name (including any trade name, trademark, service mark and logo) on Excitation’s client list, and in its marketing materials, sales presentations, and any online directories that Excitation may, from time to time, publish.
If you request that Excitation provide any creative services, you will remain fully responsible for any content you provide to Excitation. With respect to any content created by Excitation, as between you and Excitation, Excitation shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks or logos or other proprietary elements that may be included within such content, but that predate the creation of the content.

10. Representations, Warranties and Covenants

You represent and warrant that you have all necessary rights and authority to enter into the relationship with Excitation contemplated by the Agreement. You represent, warrant and covenant that the Existing Site, any content linked to the Existing Site and any content or materials that you provide to Excitation, do not and will not:

infringe on any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy;
violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false or misleading advertising or unfair competition;
be defamatory;
be pornographic or obscene; or
contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. You further represent, warrant and covenant that the product or service that is being (or will be) promoted through any campaign is:
1. lawful and
2. not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.

11. Indemnification

You will indemnify, defend (with counsel reasonably acceptable to Excitation) and hold harmless Excitation, the Publishers, their subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to:

any breach by you of any representation, warranty, covenant or other obligation contained in these Marketing Services Terms or in any of the Product Terms;
the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by you or anyone using your account;
the sale, license, supply or provision of your goods or services; or
any other act, omission or misrepresentation by you. Excitation reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you. If Excitation does assume the defence of such a matter, you will reasonably cooperate with Excitation in such defence. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without Excitation’s prior written consent.

Excitation will indemnify, defend, and hold you harmless from and against any loss, damage, cost, liability or expense (including reasonable legal fees) arising out of any claim that any Excitation technology used in connection with its provision of the Marketing Services infringes the copyright, patent, trade secret or other proprietary rights of any third party, provided that notice is given to Excitation promptly of such claims and that you provide such assistances as may be reasonably required in the defence of such matters.

12. Severability

If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

13. Force Majeure

If either party to this agreement is unable to perform any act required by the terms herein by cause of natural disaster, fire, flood, malicious injury, strikes, lock-outs or other labour troubles, riots insurrection war epidemics or other reason of similar nature, but not arising as from the fault of said party performing under this agreement, then performance of such act shall be excused for the period of the Agreement.
If the party experiencing any the delays set for in 8(a), does not make adequate and timely remedies to perform its obligations after the delays have ceased, then either party may terminate this agreement in accordance with section 4.

14. Governing Law

The Agreement will be governed and construed in accordance with the laws of the State of Victoria, Australia without giving effect to conflict of laws principles. You submit to the non-exclusive jurisdiction of the Courts of Victoria.

Terms and Conditions