1. Definitions & Interpretation 1.1 In this agreement, the words defined below shall have the following meanings assigned to them, and similar expressions shall bear corresponding meanings: “Agreement” means the agreement formed by the acceptance by the Client of a Proposal or Order (subject always to clause 2.4 below), for the provision of Services to the Client, the terms of which are set out in the Proposal or Order and these terms and conditions. “Client” means the entity or individual specified as the Client in the Agreement. “Client Website” means the specific website referred to in the Agreement. “Commencement Date” means the date the Agreement is signed by the Client unless otherwise specified in the Agreement). “Confidential Information” means trade secrets, documentation, files, data, content intellectual property, materials or other proprietary information. Confidential Information may be oral or written. “Consequential Loss” means loss beyond the normal measure of direct damages and includes without limitation and whether or not such loss would be within the normal measure of direct damages, indirect loss, loss of profit, loss of revenue, loss of business, loss or actual or anticipated savings, loss of bargain, loss of business reputation, loss of use, cost of capital or borrowings or costs of substitute goods, facilities or services and loss of opportunity (including opportunities to enter into arrangements with third parties). “Expiry Date” means the date that falls 12 months after the Commencement Date. “Fees” means the fees set out in the Agreement. “First Invoice” means the first invoice issued by White Chalk Road to the Client after the Commencement Date. “GST”, “GST Law” and other terms used in clause 14 have the meanings given to them by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time). “Initial Term” means the term of this Agreement, commencing on the Commencement Date and expiring on the Expiry Date, unless terminated earlier in accordance with these terms and conditions. “Insolvency Event” means the following circumstances: where the Defaulting Party enters into a compromise or arrangement (or announces one) under section 411 of the Corporations Act 2001 (Cth); where a managing controller is appointed over the whole (or substantially the whole) of the Defaulting Party’s property; or where the Defaulting Party enters into voluntary administration. “Intellectual Property” means all copyrights, trademarks, trade secrets, patents, utility models and other intellectual property rights recognised in any jurisdiction worldwide and includes any applications and registrations in respect of those rights. “Order” means the physical or electronic order summary form provided by White Chalk Road to the Client; “Proposal” means the physical or electronic proposal provided by White Chalk Road to the Client. “Services” means those internet marketing services and advice provided by White Chalk Road as outlined in the Agreement. “Software” means software and firmware provided by White Chalk Road, and any associated documentation, and includes any updates, upgrades, error corrections, changes or revisions issued by White Chalk Road as part of the Services. “White Chalk Road” means White Chalk Road Pty Limited (ACN 086 096 380). 1.2 Unless expressed to the contrary in these terms and conditions: (a) words importing the singular include the plural and vice versa; (b) if the day on which any act, matter or thing is to be done under this document is not a business day, that act, matter or thing may be done on the next business day; and (c) a reference to: (i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; (ii) any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee; (iii) time is to the local time in Perth, Western Australia; (iv) “$” or “dollars” is a reference to the legal currency of Australia; (v) these terms and conditions include all schedules and annexures referred to in it; and (d) headings do not affect the interpretation of these terms and conditions. 1.3 If there is any inconsistency between the Proposal or Order and these terms and conditions, then these terms and conditions will prevail. 2. Engagement of White Chalk Road 2.1 These are the standard terms and conditions of White Chalk Road, a provider of internet marketing services in Australia. These terms and conditions apply to all and every product and service provided by White Chalk Road. 2.2 No Client’s terms and conditions, howsoever provided, do not form part of these terms and conditions (even if any representative of White Chalk Road signs those terms and conditions and/or they are annexed to these terms and conditions or any Proposal or Order). The parties agree that any amendments to these terms and conditions can only be made in writing signed by authorised managers of both parties, including any inclusion of special conditions in or attached to any Proposal or Order. 2.3 By signing the Agreement (including by clicking the button/link on any electronic version of the Agreement) or by accessing or using any of the Services the Client agrees to and is bound by these terms and conditions. 2.4 White Chalk Road reserves the right to accept or decline, in whole or in part, any request for Services placed by the Client. 2.5 White Chalk Road will perform its obligations under this Agreement as an independent contractor. The parties acknowledge and agree that their relationship is one of principal and independent contractor, not employer and employee, principal and agent or partnership, and White Chalk Road does not have the right or authority to act on behalf of or bind the Client unless White Chalk Road has been expressly authorised to do so by the Client in writing. 3. Commencement and Term 3.1 Subject to clauses 5.5 and 6, this Agreement shall commence on the Commencement Date, and expire on the Expiry Date. 3.2 If the Client does not wish to renew this Agreement, the Client must give White Chalk Road at least 30 days’ notice prior to the expiry of the Initial Term. 3.3 Subject to clauses 3.5 and 3.6, if the Client fails to provide written notice in accordance with clause 3.2, the Agreement will automatically renew on a monthly basis on the same terms and at White Chalk Road’s then current fees (as provided to the Client) as this Agreement insofar as they can be applied to a monthly agreement. 3.4 If the Agreement is renewed on a monthly basis, either party may terminate the monthly Agreement by giving the other at least 30 days written notice, which notice may be given at any time. 3.5 During the Initial Term, White Chalk Road may notify the Client that it does not wish to continue the parties’ working relationship in which case this Agreement will terminate on the Expiry Date. 3.6 If the Client signs a new Agreement after the Expiry Date, the terms of the new Agreement (including the Fees specified therein) will apply. 3.7 Nothing in this Agreement places an obligation on White Chalk Road to continue the parties’ working relationship. 4. Performance 4.1 Subject to clause 5.1, White Chalk Road shall provide the Services as soon as reasonably practical after the Commencement Date and following payment (in full) of the First Invoice. 4.2 The Client shall provide White Chalk Road with all necessary information, instructions, authorisations, and documentation as reasonably requested by White Chalk Road, to enable White Chalk Road to perform the Services as follows: (a) Ongoing SEO Plans within 2 months of the Commencement Date; and (b) Paid Search Campaign Management within 3 months of the Commencement Date. 4.3 The Client acknowledges and agrees that: (a) any person specified or presented as performing a particular Service may (at White Chalk’s absolute discretion) be replaced with another White Chalk employee or contractor with similar skills and abilities; and (b) White Chalk may (at its absolute direction): (i) change the manner in which the Services are to be performed; and (ii) unless the frequency of providing a particular Service (or part thereof) is expressly specified in the Agreement, alter the frequency of the provision of any Service (or part thereof), provided there is no material adverse effect on the Service being provided. 5. Fees and Payment Terms 5.1 The Client agrees to pay the Fees to White Chalk Road in accordance with the due date specified in White Chalk’s invoices, without deduction. 5.2 Prices are in Australian dollars and exclude indirect taxes unless otherwise indicated. 5.3 White Chalk Road shall issue the First Invoice as soon as is reasonably practicable after the Commencement Date. White Chalk Road shall use reasonable endeavours to issue subsequent invoices on the 23rd (or nearest business day) of each month for Services provided in that month. No delay in the issuing of an invoice constitutes a waiver of any right to issue an invoice for any Services. 5.4 The Client acknowledges and agrees that White Chalk Road is not obliged to commence the Services until such time as the First Invoice is paid in full. 5.5 Time is of the essence for payments made in accordance with this Agreement, and if payment is not made on the due date, interest may be charged at a rate of 6% per annum on the outstanding payment, and White Chalk Road may suspend the Services until payment is received (Suspension Period). Where White Chalk Road suspends the Services during the Initial Term, and payment is subsequently received, the Initial Term shall be automatically extended by a period equal to the Suspension Period. 5.6 Fees do not include any directory, press release or article submission fees. Should these fees be required for reputation (link building) purposes, White Chalk Road will obtain approval from the Client prior to submission, unless White Chalk Road chooses to pay such fees without being reimbursed. 5.7 Fees do not include any travel expenses to and from the Client’s offices should an onsite meeting be required and the Client’s offices are outside of a 40-kilometre radius of the Perth CBD. These travel expenses will be passed on to the Client at cost and are payable by the Client upon demand. Any travel expenses will be confirmed with the Client prior to being incurred. 6. Termination or Cancellation of Agreement 6.1 A party (Non-defaulting Party) may immediately terminate this Agreement at any time by written notice to the other party (Defaulting Party) if: (a) the Defaulting Party materially breaches this Agreement and does not remedy that default within a reasonable time (and in any event no longer than 14 days) of written notice requiring the breach to be remedied; (b) a judgement, order or encumbrance is enforced, or becomes enforceable upon any of the Defaulting Party’s property; (c) an order for payment is made or judgment for an amount exceeding $10,000 is entered or signed against the Defaulting Party which is not satisfied within 7 days; (d) the Defaulting Party suspends or delays payment of its debts; (e) the Defaulting Party is unable to pay its debts as and when they fall due or goes into bankruptcy; (f) the Defaulting Party (being a corporation) has a liquidator appointed to it, or has a mortgagee of the corporation assume control of, or a receiver appointed to any of the assets or undertakings of the Defaulting Party (not being an Insolvency Event); (g) the Defaulting Party (being a corporation) is deregistered; or (h) to the extent permitted by law, the Defaulting Party is subject to an Insolvency Event. 6.2 The Client may terminate this Agreement at any time during the Initial Term upon: (a) giving White Chalk Road at least 30 days’ prior written notice; and (b) paying the amount specified in clause 6.5(c) below to White Chalk Road. 6.3 If the Client terminates this Agreement after the Expiry Date, the Client must pay any Fees due to White Chalk Road up to the date of termination. 6.4 This Agreement may be terminated by White Chalk Road at any time effective immediately upon the giving of notice if: (a) the Client fails to pay any amount as and when due under this Agreement; (b) the Client terminates, cancels or repudiates this Agreement before the expiry of the Initial Term for any reason (save and except a termination as a result of a breach by White Chalk Road); or (c) a change occurs in the Client’s circumstances which, in White Chalk Road’s reasonable opinion, may have a material adverse effect on the Client’s ability to comply with its obligations under this Agreement. Examples include (but are not limited to): (i) a change in the Client’s financial position up and until an Insolvency Event occurring; (ii) the Client factoring its debts; or (iii) the Client becoming party to litigation, arbitration or any other administrative proceeding. 6.5 If the Agreement is terminated pursuant to clause 6.1 (where the Client is the Defaulting Party), where the Client terminates pursuant to clause 6.2 before the Expiry Date, or pursuant to clause 6.4, the Client shall: (a) not be entitled to claim back any part of the Fees paid to White Chalk Road; (b) pay any Fees due to White Chalk Road up to the date of termination; and (c) pay liquidated damages for loss and damages for breach of the Agreement, calculated as 30% of the Fees for any SEO Services which form part of this Agreement, multiplied by the number of months remaining from the date of termination to the Expiry Date, without prejudice to any other rights and remedies which White Chalk Road may have under this Agreement or at law. 6.6 The Client agrees to pay White Chalk Road’s legal costs on a full indemnity basis in respect of White Chalk Road exercising any of its rights as a consequence of the Client’s breach of this Agreement. 7. Client Acknowledgement The Client acknowledges and agrees that: 7.1 search engine rankings are dependent on numerous external factors, including the behaviour of competitors and the internal workings of search engines, both of which are beyond the control of White Chalk Road; 7.2 since the search engines do not publish their ranking criteria or algorithms, a project of this nature is based on professional experience, opinions, toolset outputs and the current understanding of White Chalk Road; 7.3 improving rankings can take a number of months to achieve. For highly competitive keywords and newly established websites, improving rankings may take longer; 7.4 the Client must provide such information, resources, and cooperation to White Chalk Road as is reasonably requested to support and enable White Chalk Road to provide the Services, and the Client warrants that all information provided is accurate and complete; 7.5 the Client is required to provide White Chalk Road access to the Clients’ website for content changes and SEO Plan implementation, for White Chalk Road services to be effective; 7.6 unless agreed otherwise with White Chalk Road, the Client is responsible for their website and for adding new content to their website. If expressly agreed by the Client in writing, White Chalk Road may add to and modify content on their website, but shall not liable in respect of such content (including if the content is inaccurate, misleading or incomplete, or breaches any third party’s Intellectual Property), and the Client indemnifies White Chalk Road and all directors, employees, subsidiaries and partners of that company for any loss or claim arising from the additional or modified content; and 7.7 some website changes and search engine marketing activities not made by White Chalk Road may be detrimental to the success of the project and the Client agrees to refrain from activities that are likely to negatively impact search engine rankings, and to report any activities that may potentially impact on the project to White Chalk Road. 7.8 with respect to the Client Website and any social media or other online accounts or social media pages owned, managed, administered or maintained by the Client, or any person or entity on the Client’s behalf, including White Chalk Road (“Sites”), in respect of which White Chalk Road has created, added or modified any content, the Client: (a) assumes sole responsibility for the management and administration of those Sites, including, without limitation, the responsibility for moderating and removing any third-party comments that may be capable of being defamatory of any person or entity (“Defamatory Comments”); (b) acknowledges and agrees that it will remove any Defamatory Comments published on any of the Sites as soon as the Client becomes, or reasonably should have become, aware of them; (c) acknowledges and agrees that White Chalk Road is relying on the Client to manage and administer those Sites according to law, including, without limitation, to remove or moderate any Defamatory Comments in accordance with clause 7.8(b); (d) acknowledges and agrees that any failure by the Client to manage and administer any of the Sites may cause harm to White Chalk Road, including, without limitation, liability for the tort of defamation on account of any Defamatory Comments and all legal and other costs associated with a claim for defamation (“Harm”); (e) White Chalk Road: (i) is not responsible for, nor does it have the capacity to manage or administer any of the Sites; (ii) has no capacity to exercise editorial control over the content of the Sites or any comments posted on the Sites from time to time; (iii) is not responsible for and does not have the capacity to monitor all of the content of or comments made on the Sites (iv) is not responsible for and does not have the capacity to remove any Defamatory Comments from the Sites; (v) does not have the capacity to protect itself from that Harm; and (f) will indemnify and keep indemnified White Chalk Road and all directors, employees, agents, subsidiaries and partners of White Chalk Road to the full extent possible for any and all Harm and any and all other claims or costs incurred by White Chalk Road on account of or arising from any Defamatory Comments, the enforcement of its rights under this clause 7.8 or otherwise arising from the publication of any and all content on the Sites by White Chalk Road. 8. Restraint 8.1 The Client shall not attempt to compete in any way with White Chalk Road, or make any Intellectual Property of White Chalk Road available to any third parties in any form whatsoever. 8.2 The Client will not offer employment to any White Chalk Road employee or sub-contractor or induce or solicit any such person to take up employment with the Client; nor will the Client use the services of any such person, either independently or via a third party, for a period of twelve months following the end of any involvement by that person with any assignment for the Client. 8.3 The Client shall not employ or appoint any service provider that operates in competition to White Chalk Road during the term of this Agreement whereby such employment or appointment is likely to interfere with the performance of the work in relation to the Services under this agreement or affect the interpretation of which service provider has contributed to the positive or negative outcomes of the service for the Client. Where another service provider is employed or appointed to work on the same Client Website it will be taken to be a breach of this clause unless White Chalk Road agrees in writing that a conflict can be avoided. 9. Warranties White Chalk Road represents and warrants as follows: 9.1 that the Services will be performed by personnel who have the appropriate experience, skill, and qualifications necessary; 9.2 subject to clause 7.6, that the Services delivered to the Client by White Chalk Road will not violate or infringe the Intellectual Property rights of any third parties; 9.3 that White Chalk Road will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other contractual or governmental requirements, including without limitation those related to deceptive or unfair trade practices and privacy; 9.4 that in providing the Services provided under this Agreement White Chalk Road shall not knowingly violate any of the rules and regulations set forth by any Internet search engines; 9.5 that White Chalk Road shall not knowingly engage in any activity that would result in the Client being removed from a search engine’s index or otherwise penalised by such search engine; and 9.6 that White Chalk Road shall adhere to their Ethical Marketing Policy as posted on their website. 10. Force Majeure 10.1 If there is a delay in or failure to perform the Services for more than 90 days after the Commencement Date, due to a cause which is beyond White Chalk Road’s control (including but not limited to; failure of the Client to provide sufficient information, resources, cooperation or personnel to support the project, changes in search engine algorithms or inclusion guidelines; or the arrival of new competitor sites), then either Party may: (a) terminate the Agreement by 7 days’ notice to the other; or (b) elect to extend the time for its performance (by a period equivalent to that delay) by notice to the other, in which case the other party may terminate the Contract within 7 days of receipt of that notice, or it shall be deemed to have agreed to the extension. 10.2 The Client: (a) has no claim against White Chalk Road in respect of a termination pursuant to sub-clause 10.1; (b) must pay White Chalk Road an amount proportionate to the Services provided pursuant to this Agreement by White Chalk Road up to the date of the termination. 11. Liability and Indemnification 11.1 To the extent allowed by law: (a) White Chalk Road shall not be liable for any loss, liability, damage, claim or expense, express or implied, of whatsoever nature suffered by the Client as a result of, or which may be attributable to the products, services and training provided by White Chalk Road; and (b) in any event, any liability of White Chalk Road shall be reduced to the extent any part of any loss or damage suffered by the Client arising from any default on the part of White Chalk Road may be attributable to any negligent act of the Client, or to the breach by the Client of any of its obligations, acknowledgements, undertakings or warranties as referred to herein. 11.2 If notwithstanding clause 11.1 it is determined that White Chalk Road is liable for any loss, liability, damage claim or expense suffered by the Client, White Chalk Road’s maximum combined liability for damages, cost and expenses, for all breaches (whether of express terms or terms implied by law) is limited to amount of fees paid by the Client to White Chalk Road under this agreement, and in all circumstances White Chalk Road has no liability for any Consequential Loss howsoever arising. 12. Confidential Information 12.1 Both White Chalk Road and the Client agree they will not disclose any of the other Party’s Confidential Information, at any time during or after this Agreement. Confidential Information, which is given, is intended for internal use only in connection with the performance of this Agreement and White Chalk Road and the Client will not, in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, corporation or other entity, or use for its own benefit any Confidential Information. 13. Intellectual Property 13.1 No right, title or interest in any Intellectual Property of White Chalk Road or any third party shall be transferred to the Client under this Agreement. All Intellectual Property in the products and Services of White Chalk Road, shall belong to White Chalk Road, and the Client assigns all such rights to the White Chalk Road. 13.2 The Client agrees to abide by the terms of the Company’s license of any Software, and where the Software is provided by a third party, that third party’s license terms. If the Client does not agree to those terms, it shall not use the Software. If the terms of such license require payment by the Client, the Client shall make that payment in accordance with that license. 13.3 Clients shall make no commercial use of White Chalk Road’s Intellectual Property without the prior written consent of White Chalk Road. 14. Dispute Resolution 14.1 If a dispute or difference arises between White Chalk Road and the Client, in respect or any fact, act, matter or thing arising out of or in any way connected with this Agreement and one party requires the dispute or difference to be resolved, then that party shall promptly give the other party a written notice giving details of the dispute. 14.2 Within 14 days of a party receiving a notice referring to in clause 14.1, White Chalk Road and the Client and/or their delegates must meet and attempt to resolve the dispute in good faith, within a reasonable time (but in any event not more than 14 days) after the receipt of the notice. 14.3 If, within 14 days of the meeting the dispute is still not resolved, then, either party may proceed to take such other action as it thinks fit. 15. Goods and Services Tax (GST) 15.1 Unless otherwise stated, the Fees or any other amounts payable by the Client to White Chalk Road, is exclusive of GST. 15.2 If a Supply under this agreement is subject to GST, the Client will pay to White Chalk Road an additional amount equal to the amount of the price multiplied by the prevailing GST rate. 15.3 The additional amount under clause 15.2 is payable at the same time as the amount payable for the Supply is to be paid. However, the GST need not be paid until White Chalk Road provides a Tax Invoice to the Client. 15.4 If the amount of GST payable in accordance with clause 15.3 is found to differ from the amount paid in relation to a Supply: (a) If the amount of GST paid is more that is required under the GST Law White Chalk Road shall refund the excess amount to the Client; (b) If the amount of GST paid is less than is required under the GST Law, the Client shall pay White Chalk Road the difference. 16. No Solicitation 16.1 In this clause 16: (a) “Employees” shall mean any employee, contractor, subcontractor or consultant of White Chalk Road who has been involved in the provision of Services to the Client. (b) “No Solicitation Period” means the term of any contract of engagement or employment of an Employee by White Chalk Road. (c) “Soliciting Conduct” shall mean soliciting, canvassing or endeavouring to entice an Employee away from White Chalk Road. 16.2 The Client acknowledges and agrees that White Chalk Road has a commercial interest in: (a) preserving a relationship with the Client; and (b) maintaining a pool of Employees as part of its business. 16.3 During the No-Solicitation Period, and subject to clause 16.4, the Client must not engage in Soliciting Conduct without the express written consent of White Chalk Road. 16.4 The Client may engage in Soliciting Conduct only if: (a) that Soliciting Conduct is engaged in by and for employment (whether actual or proposed) in a severable and distinct branch of the Client’s business, having regard to geographical location and the nature of work engaged in by that branch; and (b) the Client gives written notice to White Chalk Road of their intention to engage in that Soliciting Conduct prior to doing so. 16.5 The Client acknowledges and agrees that: (a) any breach of this clause would cause irreparable harm and significant damage to White Chalk Road, and accordingly, White Chalk Road has the right to seek and obtain immediate injunctive relief in relation to any such breach; and (b) the covenants contained in this clause are fair and reasonable, and White Chalk Road has relied upon this acknowledgement in entering into the Agreement. 16.6 For the sake of clarity, this clause 16 shall continue to bind the parties notwithstanding the expiration or early determination of the Agreement. 17. General 17.1 No amendment, alteration, variation, deletion, addition and/or cancellation of this Agreement, whether consensual or unilateral or bilateral shall be of any force and effect unless outlined in writing and signed by all White Chalk Road and the Client to this Agreement. 17.2 This Agreement shall be governed by and construed in accordance with the laws of the State of Western Australia. Any dispute shall be litigated in the state or federal courts located in the State of Western Australia to whose jurisdiction White Chalk Road and the Client hereby consent. 17.3 Any notice required or permitted to be given under this Agreement shall be in writing, and sent by registered or certified post, and addressed as follows: White Chalk Road Pty Limited, 5/59 Parry Street, Perth WA 6000, Australia (or such other address as may be notified to the Client in writing from time to time) Client: to the address specified in this Agreement. 17.4 A failure to exercise or delay in exercising any right, power or privilege by any party will not operate as a waiver of that right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of that right, power or privilege, or the exercise of any right, power or privilege. A purported modification, variation or amendment of these terms and conditions or any waiver of any rights of any party shall not have any force or effect unless and until the same is in writing, executed by the parties or, in the case of a waiver, is executed by the party whose rights are thereby waived. 17.5 This Agreement, constitute the entire agreement between White Chalk Road and the Client and supersedes all prior communications and agreements between the parties, including any prior written or verbal undertakings or statements. No agreements, representations or warranties between White Chalk Road and the Client other than those set our herein are binding between White Chalk Road and the Client. Where there are inconsistencies between written or oral communications and these terms and conditions, these terms and conditions shall prevail, unless specifically agreed in writing by both White Chalk Road and the Client. 17.6 Any term of this Agreement which would be invalid at law shall be ineffective to the extent of its invalidity without affecting the remainder of the terms of the Agreement. Last Updated: September 2021.
