Higher Ranking Terms and Conditions
Please read these Terms and Conditions carefully and sign the agreement to confirm your agreement.
1. Definitions
In these Terms unless the context requires otherwise:
Ads means the advertisements created by Higher Ranking as a result of the provision of the Services.
Agreement for Services means the agreement signed by the Business to place its order for the Services.
Background Intellectual Property means Intellectual Property of Higher Ranking, which is in existence prior to the commencement of the Services, including any template documents or databases.
Business means the business set out in the Agreement for Services or other document provided by Higher Ranking (in the absence of such information, the Business who placed the Order).
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account,
injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort
(including but not limited to negligence) or otherwise.
Contract means the Agreement for Services and these Terms and Conditions.
Confidential Information is information that:
(a) by its nature is confidential;
(b) is designated by the parties as confidential; or
(c) the parties know, or ought to know, is confidential;
and includes all information about the parties and their Related Bodies Corporate, including but not limited to, all technical, financial, commercial and other information in any form (for example: as a document or in electronic
form) of or relating to them or their business affairs, which is made available or which becomes known during the terms of this Contract but does not include
information that was in the public domain at the time of its disclosure.
Consumer Guarantees means the consumer guarantees contained in the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010.
Invoice means a tax invoice issued by Higher Ranking to the Business specifying the Price and any ancillary costs payable by the Business to Higher Ranking for
the Services.
Insolvency Event means any of the following analogous events:
(a) the Business, being an individual, commits and act of bankruptcy;
(b) a party becomes insolvent;
(c) a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the Business is unable to pay Higher Ranking’s debts as the debts fall due;
(e) any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.
Intellectual Property is all present and future patents and patent applications; rights to inventions; copyright and related rights; trademarks; service marks; trade
names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in Confidential Information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.
Higher Ranking means Higher Ranking Pty Limited (ACN 609 898 535).
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
Order means any written or verbal order by the Business to Higher Ranking for the Services.
Personnel means any employee, agent, sub-contractor, contractor, partner or director of a party.
Price means the price payable in respect of the Services as specified in the Agreement for Services or Invoice issued by Higher Ranking.
Project Intellectual Property means all Intellectual Property that is developed for or arises out of the provision of the Services, including populated templates
and databases, but does not include the Background Intellectual Property or any of Higher Ranking’s general systems or processes.
Publisher means one or more online or offline businesses that accept advertising orders.
Related Bodies Corporate means related bodies corporate as defined by the Corporations Act 2001 (Cth).
Services means the professional services to be provided by Higher Ranking to the Business as described in the Agreement for Services.
Terms means these Terms and Conditions.
2. General
2.1. These Terms apply to the provision of Services from Higher Ranking to the Business to the exclusion of all other terms and conditions.
2.2. Higher Ranking will not provide the Services on any other terms or conditions than those set out herein.
3. Acceptance of Terms & Placement of Orders
3.1. The Business is deemed to have agreed to these
Terms by:
(a) signing and returning a copy of these Terms
or the Agreement for Services;
(b) accepting the Agreement for Services verbally
or in writing; or
(c) providing instructions to Higher Ranking in relation to the provision of the Services.
3.2. If Higher Ranking accepts an Order as specified in clause 3.1, the parties will have created a binding contract and Higher Ranking will provide the Services to the Business, and the Business will pay the Price to Higher Ranking as specified on the Invoice in accordance with the Agreement for Services.
3.3. Higher Ranking may cancel any Agreement for Services at any time prior to the provision of Services with no Liability other than to repay any amount of the Price paid by the Business in advance of the cancellation.
4. Higher Ranking’s Services
4.1. Higher Ranking makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance that Business can expect from the Ads.
4.2. Higher Ranking does not produce, operate or transmit the Internet sites or services upon which the Ads may appear and Higher Ranking acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services.
4.3. Higher Ranking will use its best efforts to place Ads in the target geographies specified by the Business, however, Higher Ranking is not ultimately responsible for the placement of the Ads, and cannot guarantee that the Business’ Ads will primarily be display to people in the target geographies.
4.4. The placing of the Ads will be at the sole discretion of the Publisher.
5. Business’ Responsibilities & Warranties
5.1. The Business must:
(a) provide Higher Ranking with any details of any required specifications or properties of the Services at the time the Business submits
an Order to Higher Ranking;
(b) ensure all material provided by the Business to Higher Ranking will be free from all computer viruses and all other damaging components, including but not limited to, Trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots and all computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information;
(c) provide any assistance, support, or information as Higher Ranking may require to enable Higher Ranking to perform the Services, including a full and accurate explanation of its requirements;
(d) use all reasonable endeavours to ensure that there are no circumstances which may affect Higher Ranking’s ability to provide the Services;
5.2. Higher Ranking will be entitled to rely the Business’
warranties in clause 5.1 above.
6. Price & Payment Terms
6.1. The Business must pay the Price in the manner and on the due date set out in the Invoice.
6.2. If the Business fails to make payment of any amount of the Price on the due date, Higher Ranking may suspend its Services and the Business must pay to Higher Ranking interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received.
6.3. The Business must reimburse Higher Ranking for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by Higher Ranking to recover money from the Business.
6.4. The Business agrees that it must pay to Higher Ranking on demand any expenses, fees and disbursements incurred by Higher Ranking in recovering any amount owing to it by the Business, including any reasonable debt collection agency
fees and legal expenses and any costs incurred by Higher Ranking in respect of any Order cancelled by the Business.
6.5. The Business may not withhold, make deductions from, or set-off payment of any of the Price due to Higher Ranking for any reason.
6.6. Higher Ranking may charge, in addition to the Price, any fees and charges that Higher Ranking notifies to the Business from time to time.
7. Variations to the Products & Services
7.1. If the Business causes a delay in the performance of the Services without providing Higher Ranking with reasonable written notice in advance, Higher
Ranking may add to the Price any additional costs incurred by Higher Ranking for the provision of the Services. If the Business wishes to make changes to the Order for the Services, it must notify Higher Ranking in writing of those changes, and if those changes result in additional work or time required by Higher Ranking in the provision of the Services, Higher Ranking may vary the Price to include any additional costs incurred by Higher Ranking as a result of those changes.
7.2 Higher Ranking LinkedIn Account Pausing
The procedure for pausing your Higher Ranking LinkedIn Lead Generation account. 30 days notice must be given if you may decide to pause your account with Higher Ranking. Holding your account on pause with Higher Ranking will enable a seamless restart with all tags intact, hot lead, warm lead etc and the lists you have created remain in your account for when you wish to reactivate. The cost is 50% of your standard monthly fee +GST payable per month, per licence. Your invoice will be adjusted accordingly.
8. Liability
8.1. Higher Ranking will not be liable to the Business or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties.
8.2. Higher Ranking will not be liable to the Business
for any Liability or Claim arising from third parties who operate or transmit the Internet sites or services relating to the Ads or Services, including but not limited to the Publishers.
9. Indemnity
The Business agrees to indemnify Higher Ranking, any Related Bodies Corporate and their Personnel from and against any Liability arising from the Business’s
breach of the Contract or from its use of the Services including, without limitation, any damages resulting from negligence, mistake, omission or failure of performance, whether or not resulting from any act of Higher Ranking or its agents.
10. Confidential Information
10.1. The parties must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person, or use for their own or another person’s benefit any Confidential Information.
10.2. The parties agree to keep confidential and ensure their Personnel keep confidential all Confidential Information and agree not to disclose such information without the prior written approval of the other party.
10.3. The Business agrees to indemnify Higher Ranking and its Related Bodies Corporate against any loss or damage they may suffer as a result of a breach
of confidentiality.
11. Intellectual Property
11.1. Higher Ranking assigns to the Business:
(a) all Project Intellectual Property, including future copyright in accordance with section 197 of the Copyright Act 1968 (Cth) and in equity; and
(b) all common law and statutory rights and remedies and any rights and action available to Higher Ranking in relation to the Project Intellectual Property. The assignment in clause 11.1 is deemed to take effect from the date of the creation of the Project Intellectual Property.
11.2. The Business acknowledges and agrees that:
(a) the Background Intellectual Property remains the property of Higher Ranking; and
(b) this Contract does not confer on the Business any property right or title to any of the Background Intellectual Property.
11.3. To the extent necessary to enable the Business to exercise all right, title and interest as owner of the Project Intellectual Property, Higher Ranking grants a perpetual, non-exclusive, royalty-free and transferable licence of the Background Intellectual Property to the Business.
12. Termination
12.1. Either party may terminate these Terms by thirty (30) day’s written notice to the other party.
12.2. Higher Ranking and the Business may immediately terminate, or suspend the performance of, these Terms if:
(a) the other party breaches a term of the Agreement and does not remedy the breach within seven (7) days;
(b) the other party breaches a term of the Terms which is not capable of remedy;
(c) there is any direct or indirect change in the Control of either party; and
(d) if an Insolvency Event occurs.
12.3. If the Contract is terminated for any reason:
(a) the Business must immediately pay to Higher Ranking a pro-rata payment for the Services performed by Higher Ranking up to the date of termination, and any other money owed by the Business to Higher Ranking under this Contract
as at the date of termination; and
(b) termination does not affect any accrued rights or liabilities of the parties.
12.4. If the Contract is terminated by the Business in accordance with clause 12.1, the Business must provide Higher Ranking with payment for the Services for the remainder of the month, and must provide Higher Ranking with one additional
month’s payment as a cancellation fee.
13. Force Majeure
13.1. Higher Ranking shall not be liable for failure to perform, or delay in performing its obligations under the Contract if the failure or delay is due to
an act of war, revolution or terrorism, an act of God, or any other event beyond the control of Higher Ranking. If such a failure or delay continues for a period of 30 days Higher Ranking may terminate the Contract by given written notice.
13.2. This clause 13 does not apply to any obligation to make payments under the Contract.
14. Consumer Guarantees
Higher Ranking warrants to provide the Services in accordance with the Consumer Guarantees. Specifically, Higher Ranking agrees that the
Services will:
(a) be provided with acceptable care and skill or technical knowledge and Higher Ranking will take all necessary steps to avoid loss and damage;
(b) be fit for the purpose or give the results that the Business has agreed to in its Order; and
(c) be delivered within a reasonable time when there is no agreed end date.
15. Subcontracting
Higher Ranking may subcontract all or any part of its rights and obligations under the Contract without the Business’s consent.
16. Jurisdiction
The Sale Agreement between Higher Ranking and the Business is made in the State of Victoria, and the parties agree to submit all disputes arising between them to the
courts of such State.
17. Entire Agreement
Higher Ranking and the Business acknowledge that these Terms constitutes the entire agreement between them, and that the only enforceable obligations and liabilities of Higher Ranking and the Business in relation to the subject matter of these Terms is contained herein. All representations, communications and prior
agreements are superseded by these Terms.
18. Variation
Higher Ranking may change these Terms at any time if it has given to the Business at least 30 days’ notice in writing of the proposed change.
19. Control
The Business must immediately provide written notice to the Business if there is any direct or indirect change in the Control of the Business.
Executed by the Business in accordance with Section 127 of the Corporations Act.
