Marketing Services Terms & Conditions
MARKETING SERVICES TERMS AND CONDITIONS
These Terms and Conditions apply when engaging the services of Clarke & Clarke Group Ltd (“Clarke & Clarke Group Ltd”, “we”). The client (“you”, “your”) means the person, company or other entity, buying the goods or services from Clarke & Clarke Group Ltd. You agree that these Terms and Conditions (“Agreement”) and any subsequent terms and conditions issued by Clarke & Clarke Group Ltd shall apply to all orders for the goods and the services made by you.
We may, at our discretion, update or revise the Terms by adding, changing or removing terms at any time. Any changes will take effect immediately from the time it is published at clarkeandclarke.co.nz/terms-of-service (or any successor URL), so we encourage you to periodically review the Terms from time to time.
OVERALL SERVICES
1. CLIENT ACKNOWLEDGEMENTS. You acknowledge and agree that:
1.1. Quotes and estimates provided by Clarke & Clarke Group Ltd exclude GST.
1.1. Clarke & Clarke Group Ltd has the right to use work developed for you, as well as your company
name and logo(s), in its promotional material, in the context of showing its portfolio of
work and clients.
1.2. Clarke & Clarke Group Ltd endeavours to be thorough in checking all files before production,
however you hold the ultimate responsibility for approving all proofs as production ready. Once you have approved a proof, Clarke & Clarke Group Ltd is not liable for any charges that may occur due to errors.
1.3. Clarke & Clarke Group Ltd can communicate with you and your staff through all methods of
electronic communication, including by not limited to email (both individual emails and
bulk emails including enewsletters), SMS, and any other communication method we
deem useful for delivering our services and communication to you.
2. CLIENT RESPONSIBILITIES.
For the purposes of providing services, you agree:
2.1. To authorise Clarke & Clarke Group Ltd to edit content on your website, including by not limited to:
creating new pages, new content, changing meta tags, title tags, creating and changing
images, editing code, and any other changes for the purpose of fulfilling the services
you have requested.
2.2. You will identify clearly to Clarke & Clarke Group Ltd the approval process required, if any, when
Clarke & Clarke Group Ltd makes changes to website content. If no approval process is specified,
Clarke & Clarke Group Ltd will act in good faith when making website changes, and will seek verbal or
written approval for changes it deems you should be consulted on.
3. INTELLECTUAL PROPERTY LIABILITY.
3.1. You represent and warrant that any elements of text, graphics, photos, designs,
trademarks, or other artwork provided to Clarke & Clarke Group Ltd for inclusion on the website(s) are
owned by you, or that you have received permission from the rightful owner(s) to use
each of the elements, and will hold harmless, protect, and defend Clarke & Clarke Group Ltd and its
subcontractors from any liability or suit arising from the use of such elements.
3.2. If you intentionally or unintentionally include the names of your competitors or
trademarked terms in your website or advertising, you do so at your own risk and
accept all liability associated with such action. Without limiting the above, Clarke & Clarke Group Ltd
may, but is not obliged to, at any time and in its sole discretion, remove competitor
names or trademarked terms from advertising campaigns.
4. FEES.
You agree to pay Clarke & Clarke Group Ltd any and all fee(s) for services provided.
4.1. Payments are due according to the terms specified on each invoice. If terms are
omitted from any invoice, that invoice is due 20 days after the end of the month the
invoice is dated for.
4.2. Setup Fees are due prior to the specified work beginning.
4.3. Clarke & Clarke Group Ltd reserves the right to delay starting work, or to pause existing work, if a
payment is overdue. When payment is made, the normal work process will resume.
4.4. Clarke & Clarke Group Ltd reserves the right to refer any unpaid account to a Debt Collection
Agency. Once the matter has been referred to a Debt Collection Agency, you will be
liable for all collection fees including the Agency fees and commission(s) Clarke & Clarke Group Ltd
would have to pay for this service.
5. COPYRIGHT
5.1. All artwork, writing, designs, graphics, photographs and video that are created by
Clarke & Clarke Group Ltd, are the property of Clarke & Clarke Group Ltd and protected under New Zealand copyright
laws. Clarke & Clarke Group Ltd will retain ownership of the material, unless different copyright terms have
been agreed to in writing.
5.2. All code developed or provided by Clarke & Clarke Group Ltd (including but not limited to HTML,
CSS, PHP, SQL) is the property of Clarke & Clarke Group Ltd and protected under New Zealand copyright
laws. When the Client has settled all outstanding fees and accounts the Client is
granted a non-exclusive licence to use the code.
ORDERING SERVICES
6. PLACING AN ORDER: You acknowledge and agree that:
6.1. Services can be ordered from Clarke & Clarke Group Ltd through a variety of methods including, but
not limited to: signed contracts, order forms or quotes, email requests, online proposal
acceptance and verbal requests.
6.2. Where a fixed quote is not provided for a job, both parties will act in good faith.
Clarke & Clarke Group Ltd will track time spent on the work and charge an hourly rate.
7. CANCELLATION OF SERVICES PRIOR TO COMPLETION.
7.1. Once a signed agreement, quote or order has been accepted by Clarke & Clarke Group Ltd, you will
be responsible for full payment of all Fees specified on the agreement, quote or order.
If you cancel the services for any reason prior to completion (other than as a
consequence of Clarke & Clarke Group Ltd’ material breach of this Agreement or under your rights in
clause 8.5), all Fees specified shall be immediately due and payable. If a Minimum
Term is specified for any service, the Fees for the remaining Minimum Term shall be
immediately due and payable.
7.2. For any work undertaken where an agreement, quote or order has not been
approved, or where one has been approved but the work is to be charged at an hourly
rate, if you decide to cancel the requested work prior to completion, you must give
notice of cancellation in writing. Clarke & Clarke Group Ltd will reconcile the hours worked, and will be
entitled to payment for all outstanding Fees within 7 days.
8. TERMINATION OF RECURRING SERVICES.
You acknowledge and agree that:
8.1. Recurring services include any service where a fee is recurring, such as, but not
limited to, website hosting, Search Engine Optimisation services (“SEO Services”),
online advertising campaigns, or domain renewal. The recurrence may be monthly, bimonthly, quarterly, half-yearly, annually, or any other recurrence frequency.
8.2. The recurring services supplied by Clarke & Clarke Group Ltd may have a term stated on the quote,
agreement, contract or order form.
8.3. Where the term is a Fixed Term the services automatically terminate when the
term is complete.
8.4. Where the term is a Minimum Term, or no term is stated, you must give written
notice to Clarke & Clarke Group Ltd to terminate the services. The final day that the services will be
provided (“Termination Date”) will be either the last day of the Minimum Term, or the
last day of the month following the month the notice was received, whichever is later.
8.5. If any service is designated as having an Early Termination Option, or if the quote
states that we will not hold you to the minimum term, you can cancel the service prior
to the Minimum Term, without needing to pay for the remainder of the Minimum
Term, and with no other financial penalty, provided that (i) You are genuinely
dissatisfied with either the results or Clarke & Clarke Group Ltd’ performance of the service; (ii) You
discuss your dissatisfaction with Clarke & Clarke Group Ltd verbally; (iii) You then give Clarke & Clarke Group Ltd at least
21 days to fix the areas in which you are dissatisfied, and (iv) if, at the end of that
period you are still genuinely dissatisfied, you give Clarke & Clarke Group Ltd 7 days written notice that
the services are to be terminated. This clause supersedes clause 8.1.
8.6. Services are terminable by the client only in accordance with the above provisions
(8.1 – 8.5), or as a consequence of Clarke & Clarke Group Ltd’ material breach of this Agreement.
8.7. Clarke & Clarke Group Ltd may terminate this Agreement and access to the services, with or without
cause of any type or nature, with 21 days’ notice.
8.8. All provisions of this Agreement that by their sense or nature should survive
termination of this Agreement (including, without limitation, all limits of liability,
indemnity obligations, and confidentiality obligations) shall so survive. In the event of
any termination, you shall remain liable for any amount due for services delivered by
Clarke & Clarke Group Ltd prior to the Termination Date.
8.9. You must pay all Fees that accrue prior to the Termination Date.
SEO SERVICES
9. CLIENT ACKNOWLEDGEMENTS FOR SEO SERVICES.
SEO Services are intended to provide your website with improved positioning in selected search engines. If engaging
Clarke & Clarke Group Ltd for SEO Services you understand, acknowledge and agree that:
9.1. Clarke & Clarke Group Ltd HAS NO CONTROL OVER THE OVER THE POLICIES AND RANKING
ALGORITHMS OF SEARCH ENGINES WITH RESPECT TO THE HOW THEY CHOOSE TO
RANK WEBSITES IN SEARCH RESULTS, NOW OR IN THE FUTURE.
9.2. While it is unlikely that search engines will exclude a full site from search
results, it is common for search engines to take some time before new websites are
included in results, and it is very common that even established sites will not have all
pages from the website included in search results.
9.3. Clarke & Clarke Group Ltd makes no representations, warranties or guarantees of any kind as to
the level of sales, purchases, clicks, sales leads, search engine rankings or other
performance that you can expect from the SEO Services provided by Clarke & Clarke Group Ltd.
9.4. Website search engine rankings can fluctuate any day, any time, and between
different users because of on-going changes in the ranking algorithms, SEO efforts
made by the competitors, and other factors.
9.5. Newly edited websites may experience a temporary boost in ranking for some
targeted keywords for a short period of time, before the rankings settle to a lower
level. This is known as ‘freshness boost effect’. You acknowledge that if this happens
to your site, the subsequent drop in rankings is not poor performance by Clarke & Clarke Group Ltd, and
is instead a common occurrence.
9.6. For the duration of this Agreement you agree not to engage any other SEO
Services, whether one-off services or ongoing services, without written agreement
from Clarke & Clarke Group Ltd in advance.
9.7. Clarke & Clarke Group Ltd is authorised to use of all your logos, trademarks, website images, and
the like, on your website and other websites, to create content that Clarke & Clarke Group Ltd deems
may be useful for search engine positioning and optimisation of your website(s).
10. Clarke & Clarke Group Ltd network.
In order to perform its SEO Services Clarke & Clarke Group Ltd builds links from a variety of websites to its client’s websites. In addition to public websites accessible by anyone, Clarke & Clarke Group Ltd builds links from a collection of websites it calls the “Clarke & Clarke Group Ltd Network”. The Clarke & Clarke Group Ltd network includes sites that Clarke & Clarke Group Ltd owns, sites that Clarke & Clarke Group Ltd has access to, and client sites of Clarke & Clarke Group Ltd. If engaging Clarke & Clarke Group Ltd for SEO Services you understand, acknowledge and agree that:
10.1. Your website will receive links from other sites in the Clarke & Clarke Group Ltd Network.
10.2. Your website will join the Clarke & Clarke Group Ltd Network, and as such, Clarke & Clarke Group Ltd is permitted
to add hyperlinks on your website that point to other websites, provided that: (i) No
link is made to a direct competitor’s website, without express written permission from
you. (ii) The links are not created on any pages on your site that website visitors
commonly view, unless you give express permission. (iii) Only one subtle link will be
included in the footer of your site, which will not interfere with the user experience of
your website visitors and will point to the page(s) that contain these links to other
sites. (iv) You can require any link to be removed that you choose.
11. EXCLUSIVITY.
For SEO Services, if any keywords are agreed to be ‘Exclusive’
(“Exclusive Keywords”), a geographical region for this exclusivity (“Exclusive Region”)
will be defined in writing. Clarke & Clarke Group Ltd warrants that it will not undertake any SEO Services
for those Exclusive Keywords for any other company targeting the Exclusive Region,
prior to termination of this Agreement.
ONLINE ADVERTISING SERVICES
12. PAID ONLINE ADVERTISING. Online Advertising Services refers to all online
advertising that has a direct cost for clicks, impressions or inclusion, which Clarke & Clarke Group Ltd
organises and/or manages on your behalf. This includes, but is not limited to, Google
Ads and Facebook advertising (“Ads”). For these Ads you agree that:
12.1. You will agree with Clarke & Clarke Group Ltd on a budget for spending on the campaign. The
agreed budget for spending on the Ads can be changed at your discretion whenever
you choose, through either verbal or email instruction to Clarke & Clarke Group Ltd. Clarke & Clarke Group Ltd will confirm
with you when the changes will applied.
12.2. Clarke & Clarke Group Ltd will state clearly whether prices quoted include the cost of the Ads or
whether it is only for management fees. If the costs of the Ads are not included you
will need to pay these directly to the companies that own the publishing networks,
such as, but not limited to, Google and Facebook (“Publishers”).
12.3. Where Clarke & Clarke Group Ltd prices include the costs of Ads, if the portion of Fees allocated
for Ads spend is not fully spent in a given period, the remaining amount will be added
to the Ads spend allocated for the next period. If the Ads portion is overspent for a
given period, the overspend is subtracted from the Ads spend allocated for the next
period.
12.4. Clarke & Clarke Group Ltd reserves the right to modify Ads, including the associated keywords,
target geographies and Publishers, consistent with your objectives, at any time.
12.5. While Clarke & Clarke Group Ltd will take all reasonable efforts to promote the various products
and services that you have selected to promote, it makes no guarantee – financial or
otherwise – that all such products and services will be advertised, particularly if
advertising all such products and services would result in exceeding the campaign
budget you have set.
12.6. You may select certain individual words or word phrases (“Keywords”) to be
used in the campaign. While Clarke & Clarke Group Ltd will take all reasonable efforts to promote these
Keywords at the Publishers, it makes no guarantee – financial or otherwise – that all
Keywords will be advertised, particularly if advertising all Keywords would result in
exceeding the campaign budget or produce low quality results. Clarke & Clarke Group Ltd is permitted to
choose Keywords to add to the campaigns that it believes may benefit you.
12.7. You agree that the rules for displaying Ads when certain Keywords are entered
by a user at a Publisher are controlled by the Publisher and as such, you agree that
Clarke & Clarke Group Ltd makes no guarantee – financial or otherwise – about when or where Ads will
be displayed when certain Keywords are entered by a user at a Publisher.
12.8. You agree that, while Clarke & Clarke Group Ltd will use its best efforts to place Ads in the target
geographies specified by you, Clarke & Clarke Group Ltd does not control the system that displays the
Ads and, as such, cannot guarantee that your Ads will only or primarily be displayed to
people in the target geographies. You acknowledge that Publishers may use varying
means to detect where people are located when determining whether to display an
Ad, including, but not limited to: (i) IP targeting; (ii) user registration information; and
(iii) explicit geographic search queries made by the user.
12.9. Upon termination of online advertising services, any advertising accounts that
have been created and owned by Clarke & Clarke Group Ltd remain the property of Clarke & Clarke Group Ltd. Likewise,
any landing pages created in the Clarke & Clarke Group Ltd landing page system (displayed at a subdomain of your website) remain the property of Clarke & Clarke Group Ltd and will be disabled.
You are not permitted to replicate, reuse or redistribute the landing pages created by Clarke & Clarke Group Ltd.
WEBSITE HOSTING SERVICES
13. DISK SPACE.
Hosting accounts are allocated a disk space allowance. This
allowance varies depending on the hosting package you purchase. Should your account
exceed the allocated amount your website may stop working. We will provide pricing
for upgrading your hosting package to a larger disk space allowance.
14. TRAFFIC.
Clarke & Clarke Group Ltd does not set arbitrary limits on the amount of visitor traffic a
website can receive. However, if your monthly website traffic is considerably higher
than expected for two or more consecutive months, Clarke & Clarke Group Ltd reserves the right to
renegotiate the hosting plan charges, in good faith, to a higher rate.
15. GUARANTEED BACKUPS.
When hosting your website with Clarke & Clarke Group Ltd, Clarke & Clarke Group Ltd guarantees to backup your data that is stored on the web servers. Data that will be
backed up includes website files and SQL databases. The guarantee does not include
emails stored on a mail server. The backups are for the purpose of enabling the
website to be restored to a recent functional version.
15.1. If a disaster occurs and data needs to be restored from the backup for the
website to be functional again, reasonable time must be allowed for the restoration.
15.2. If a disaster occurs and the data is not backed up, and the website is left in a
non-functional state, the penalty for Clarke & Clarke Group Ltd will be limited to (i) restoring and/or
rebuilding the website to a state that is comparable to the website’s functionality
anytime in the one month prior to the disaster, at no cost to you, and (ii) providing free
website hosting to you for that website for the following 12 months.
16. NOT FOR ARCHIVE STORAGE.
Website hosting accounts with Clarke & Clarke Group Ltd are not to
be used for archives of files that consume more than 100MB. If files that Clarke & Clarke Group Ltd
deems fall into this category, are found on the hosting account we will give you 7 days’
notice to remove the files. If you do not remove the files Clarke & Clarke Group Ltd reserves the right to
delete the offending files.
17. NON-PAYMENT.
If your website or DNS is hosted with Clarke & Clarke Group Ltd and payment for
your website hosting, or any other service by Clarke & Clarke Group Ltd, is overdue Clarke & Clarke Group Ltd will send a
warning notice. If the account remains overdue 7 days later a second warning notice
will be sent. If any part of your account with Clarke & Clarke Group Ltd remains overdue 14 days after
the second warning notice, Clarke & Clarke Group Ltd reserves the right to suspend your hosting account
and DNS. This means that your website will stop working and, potentially, your emails
might stop working too. Your website data will be protected and the website
reinstated when the account is paid. If the account remains overdue for 60 days after
the second notice is sent, the hosting service will be terminated and Clarke & Clarke Group Ltd reserves
the right to delete all your data from its servers.
18. DATA RETENTION.
Clarke & Clarke Group Ltd shall not be responsible for retaining any of your data after account termination. After the account is terminated all data may be deleted from the servers and from back-ups during scheduled back-up rotation. Clarke & Clarke Group Ltd is under no obligation to restore, provide on any storage media or send out any data pertaining terminated accounts.
19. MARKETING LISTS
You, the client, warrant that any marketing list (including any email marketing list) provided by you, or on behalf of you, to Clarke & Clarke Group Ltd will have been collected and collated in accordance with all applicable laws and regulations, and that the use of any such list by Clarke & Clarke Group Ltd for the purposes marketing services:
(a) will not breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003)
(b) will not infringe any third party’s legal rights
(c) will not give rise to any cause of action whether against Clarke & Clarke Group Ltd, you, or any other person
(d) You have the recipient's approval to send marketing emails and messages to them
(e) You give Clarke & Clarke Group Ltd approval and permission to send emails and marketing messages on your behalf
(f) You take unsubscribe responsibility. If a user unsubscribes or requests to unsubscribe from your list you are responsible for letting Clarke & Clarke Group Ltd know to remove them from the list
OTHER LEGALITIES
20. INDEMNIFICATION.
You, the client, agree to defend, indemnify and hold Clarke & Clarke Group Ltd, its sub-contractors, partners, and the respective directors, officers and employees of each, harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys' fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the services, except to the extent the foregoing directly result from Clarke & Clarke Group Ltd’ own gross negligence or wilful misconduct. Clarke & Clarke Group Ltd reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, the client.
21. GENERAL.
21.1. If any provision of this agreement shall be unlawful, void, or for any reason
unenforceable, then that provision shall be deemed severable from this agreement
and shall not affect the validity and enforceability of any remaining provisions.
21.2. This Agreement and the relationship between you and Clarke & Clarke Group Ltd shall be
governed by the laws of New Zealand. Any action by either party hereto arising out of
or in connection with this Agreement or the Service shall be brought in a court of
competent jurisdiction located in New Zealand.
21.3. Nothing in this Agreement gives rise to or is intended to give rise to a
relationship between Clarke & Clarke Group Ltd and you of employee and employer, principal and agent
or partnership.
21.4. The provisions of the Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, administrators, successors and assigns.
21.5. You may not assign this Agreement or the rights and obligations thereunder to
any third party without the prior express written approval of Clarke & Clarke Group Ltd.
21.6. Clarke & Clarke Group Ltd reserves the right to assign subcontractors to services.
21.7. No waiver by either party of any default shall be deemed as a waiver of prior or
subsequent default of the same of other provisions of this Agreement.
21.8. No provision of this Agreement shall be interpreted against any party because
such party or its legal representative drafted such provision.
22. LIMITED LIABILITY.
In no event shall Clarke & Clarke Group Ltd be liable to you for any indirect,
special, exemplary or consequential damages, including any implied warranty of
merchantability or fitness for a particular purpose or implied warranties arising from
course of dealing or course of performance, lost profits, whether or not foreseeable or
alleged to be based on breach of warranty, contract, negligence or strict liability,
arising under this agreement, loss of data, or any performance under this agreement,
even if such party has been advised of the possibility of such damages and
notwithstanding the failure of essential purpose of any limited remedy provided
herein. Clarke & Clarke Group Ltd makes no warranty of any kind, whether express or implied, with
regard to any third party products, third party content or any software, equipment, or
hardware obtained from third parties.
23. CONFIDENTIALITY.
The parties agree to hold each other's proprietary or
confidential information in strict confidence. "Proprietary or Confidential Information"
shall include, but is not limited to, written or oral contracts, trade secrets, know-how,
business methods, business policies, memoranda, reports, records, notes, or financial
information. Proprietary or Confidential Information shall not include any information
which: (i) is or becomes generally known to the public by any means other than a
breach of the obligations of the receiving party; (ii) was previously known to the
receiving party or rightly received by the receiving party from a third party; (iii) is
independently developed by the receiving party; or (iv) is subject to disclosure under
court order or other lawful process. The parties agree not to make each other's
Proprietary or Confidential Information available in any form to any third party or to
use each other's Proprietary or Confidential Information for any purpose other than as
specified in this Agreement. Each party's Proprietary or Confidential Information shall
remain the sole and exclusive property of that party.
24. FORCE MAJEURE.
Neither party will be liable for, or will be considered to be in
breach of or default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or conditions that are
beyond such party's reasonable control and that such party is unable to overcome
through the exercise of commercially reasonable diligence. If any force majeure event
occurs, the affected party will give prompt written notice to the other party and will
use commercially reasonable efforts to minimise the impact of the event.
