Updated February 2023
These are the Terms and Conditions on which First Draft Communications ABN: 17462007615 (First Draft Communications Group) will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Service. They set out our Services and what you can expect from us. Please read them carefully. It is a condition of your use of our Services that you comply with these Terms and Conditions.These Terms and Conditions are subject to change without notice and may be superseded. First Draft Communications may modify these Terms and Conditions by general notice on a page of our website, by email or by any other method of communication.
1. ENGAGEMENTYou may engage us to carry out a Service for you by:• signing and returning a Proposal or Pricing Structure to us; or• providing an authorised Purchase Order; or• in the case of smaller engagements by written verification.Unless First Draft Communications (FDC) notify you otherwise, FDC will accept that engagement, subject to these Terms and Conditions. The Service will commence in line with the Service schedule or when FDC accept the engagement.
2. PRICING STRUCTURESIf FDC provide you with a Pricing Structure for the Service, then that Pricing Structure:• is based on the Specifications, and is subject to change if the parties agree to amend the Specifications;• does not include GST;• and is valid for a period of 30 days from the date FDC issue the Pricing Structure, unless otherwise agreed by FDC.
3. SERVICESThe Services that FDC provide to you, and any specific terms, may include some or all of the following:• Search Engine Optimisation (SEO);• Search Engine Advertising ;• Display Advertising;• Social Media Advertising;• Social Media Management (SMM);• Strategy, Creative and Analytics.You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore:• the Services will not be error-free or uninterrupted; and your access to the Service and the operation of the Service will not be error-free or uninterrupted.• FDC reserves the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by FDC’s negligence or willful acts or omissions.
4. HOURS OF SERVICEAll Services will be carried out between 8:30 am and 5:30 pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods – UNLESS otherwise arranged and agreed upon as part of the engagement.
5. CONTENT AND MATERIALS SUPPLIED BY YOUYou must supply to us all required materials you want us to use in the Service, and all other content and materials FDC reasonably request (Client Content) in a timely manner.You must supply all Client Content in the following digital format/s:• text/copy: Microsoft Word or Rich Text (clearly labelled and in correct order);• tables: Microsoft Excel (clearly labelled and in correct order);• images: high resolution where possible (JPEG, PNG files);• logos: vector format (Illustrator EPS/AI);• diagrams/maps: vector format (AI) or (JPEG files);• if required, access to your current website and database via SSH, FTP and/or CMS/hosting control panel login;• brand style guidelines (if applicable).FDC may charge Additional Costs if the Client Content is not provided in the appropriate format or if material is not supplied when requested.You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not: breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or compromise the security or operation of our computer systems, through a virus or otherwise.
6. VARIATIONS AND ADDITIONAL COSTSIf during the course of our engagement there are changes in the Specifications of the Service, the changes will be treated as a Variation.Where a Variation occurs FDC reserves the right to halt work and review the Service costings. FDC will discuss the Variation with you and where required will issue a Variation Notice which is to include the modifications to the Specifications and any associated costs. FDC will not proceed with the Services until FDC receive your written approval to proceed.Examples of Variations include:• introduction of additional requirements not discussed during the onboarding process i.e. branding deliverables, introduction of video imagery, ad text, ad design and Digital Marketing Campaign focus;• costs for commercial fonts, photography, audio and video;• additional Service management time;• unplanned delays in obtaining approval, Client Content or feedback resulting in FDC• having to reschedule services, staff or facilitate continuance;• overtime required to meet deadlines due to delays by the Client providing approval, Client Content or feedback;• development work.It is our process to include Service management time in all quotes, but from time to time FDC are required to not only manage the FDC team but also manage your team. This is generally not known at the time of quoting and may be treated as a Variation.If during the course of our engagement there are small changes in the Service, FDC will contact you and provide an estimate of the Additional Costs for these small changes.Where possible, FDC will attempt to obtain approval from you prior to undertaking the additional work. However, in some cases due to deadline and availability constraints, this may not be possible and FDC may proceed with the work without obtaining approval.Additional Costs will be invoiced separately to the Client on an ad hoc basis, charged at current Professional Hourly Rates.Examples of Additional Costs include:• content not in the appropriate format;• extra workshops or workshops requiring additional hours;• requested additional design concepts / alternations;• requested changes to the design after final approval has been requested or provided;• uploading and styling/layout of additional Client Content;• additional meetings and travel time.You agree that once you have approved the list of key phrases for optimisation and use in the provision of the Services by FDC, no changes can be made to that list during the duration of the Services.
7. PURCHASE OF STOCK IMAGES, FONTS, PHOTOGRAPHY, AUDIO OR VIDEOUnless specified in the Pricing Structure, the Fees do not include any searches or purchase of stock images, commercial fonts, photography, audio or video.You can provide stock images, commercial fonts, audio or video, or FDC can purchase them on your behalf. When any stock images or commercial fonts are purchased on your behalf, FDC will be the license holder and the image or font can only be used under the terms of the license/s.You indemnify, and agree to keep FDC, its directors, officers and employees indemnified, against all Loss arising out of the breach of these licenses.Standard stock images will be charged according to our current stock image rates.Costing for any font, photography, audio or video required will be provided for approval separately via a Variation Notice.Ownership of the finished collateral, photography, audio or video will be transferred to you upon full payment of all issued invoices.FDC retains ownership of all working files.
8. YOUR APPROVAL & IMPLEMENTATIONYour approval and implementation may be required for a number of items (Approval & Implementation Item) presented to you:• Service brief;• keyword recommendations;• local SEO report;• on page SEO report;• ad text;• ad targeting;• ad creative;• design concepts (and your choice of one of them);• each updated version of the chosen design concept;• implementation of conversion tracking code• landing page or website development• completed design;• variation Notices; and• any other item for which FDC request your approval.When FDC provide you with any Approval Item, you must notify us in writing whether you do or do not accept the completed Approval Item.You will be deemed to have accepted the Approval Item if FDC do not receive a response from you, within 5 business days.Your acceptance of the completed Approval Item in accordance with Section 8 means that the Approval Item is complete, and no further amendments are necessary. However, FDC will not proceed to the next Stage of the Service until FDC receive your approval to proceed.There may be Additional Costs in having to reschedule services, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shutdown and subsequent restart fee commensurate to the labour and resource costs incurred.
9. SCHEDULING, PRODUCTION AND SERVICE MANAGEMENTIf FDC consider it to be necessary, FDC will develop a production schedule for the Services. FDC will use reasonable commercial endeavours to carry out the Services in accordance with that schedule.If you delay in providing the approval, implementation, Client Content or feedback FDC require, then this may result in:• a change in the delivery deadline set out in the production schedule; or• if the delivery deadline cannot be changed, a Variation Notice will be issued, including necessary overtime costs.
10. SEARCH ENGINE OPTIMISATION (SEO)
Our Search Engine Optimisation Services may include:• Keyword research & Keyword Recommendations• Local SEO Report• On Page SEO Report• Copywriting & Content Generation• Creation of Google Analytics account• Implementation of Conversion Tracking Code• Creation of Google Search Console account• Link Building• Local Citations• Monthly Progress Report
Our Search Engine Optimisation Services exclude:• Implementation of On Page SEO Report• Implementation of advanced conversion tracking code where website development is needed• Broken Links cleanup & ongoing maintenance• Google Search Console management• Landing Page or Website Development• Website Maintenance & Security Updates• New Website Migration• Change of Strategy Mid-Campaign
12. DISPLAY ADVERTISINGOur Display Advertising Services may include:• Creation of display banners• Creation of Google AdWords account• Setup of conversion tracking and remarketing tags in Google Analytics• Implementation of Conversion Tracking Code• Set-up of audience and/or display placement targeting• On-going optimisation and Digital Marketing Campaign analysis• Monthly Progress Report
14. SOCIAL MEDIA MANAGEMENT (SMM)Our Social Media Management services may include:• social media review, analysis and strategy development;• social media campaigns, blogs, content creation, client engagement and/or profile management for Facebook, Twitter, LinkedIn or other social media platforms;• social media analytics;• social media policy.You will provide access to your social media accounts or permission for us to set up accounts on your behalf.
15. STRATEGY, CREATIVE AND ANALYTICSOur Strategy, Creative and Analytics services may include:• digital marketing audits;• digital marketing strategy development;• digital marketing strategy implementation;• videos, images, memes, infographics, whitepapers, reports and surveys;• Google analytics;• reputation management;• call tracking;
16. ARCHIVING / RETRIEVALFDC will endeavour to store or archive all electronic files used in the production of your Service. However, FDC provide no guarantee that any stored or archived files can be retrieved in the future.Once your Service is launched, archiving of the files and database and copies of these files becomes the responsibility of the Client. FDC can at the request of the Client provide this service for an Additional Cost.
17. DISBURSEMENTSDisbursement charges are not included in the Fees. If FDC incur any disbursements or expenses during the course of the Service, FDC will charge these to you as Additional Costs.These may include but are not limited to:• costs of plugins and themes purchased as part of the Service;• consumable material utilised as part of a Service or Digital Marketing Campaign;• one-off costs for social media monitoring at events.18. WARRANTY DISCLAIMERNothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.Subject to FDC’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, FDC expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.
19. LIMITATION OF LIABILITY AND WARRANTYTo the fullest extent permissible by law, FDC is not liable (whether in contract or tort) for:• faults or defects in any services or goods provided by third parties in connection with this agreement; or• any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not FDC knew of the possibility of such loss and whether or not such loss was foreseeable.To the fullest extent permissible by law, in no event will FDC’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this agreement exceed the amounts actually paid by the Client to FDC for the Service;FDC makes no warranties regarding the likelihood of success of marketing or promotional activity undertaken pursuant to the agreement.Without limiting the above, FDC will use its reasonable endeavours to optimise the performance of your Digital Marketing Campaign, however, FDC gives no warranties and makes no guarantees in respect of the performance of your Digital Marketing Campaign. You acknowledge that:• search engine results and ad position will vary for each of the search engines and social media platforms;• the algorithms of each search engine and social media platform may change unexpectedly from time to time;• and this is out of the control of FDCTo the fullest extent permitted by law, the liability of FDC for a breach of a non-excludable condition is limited to: in the case of the provision of services:• the supplying of the services again; or• payment of the cost of having the services supplied again.in relation to goods:• the replacement of the goods or the supply of equivalent goods;• the payment of the cost of replacing the goods or acquiring equivalent goods; or• the repair of the goods or the payment of the cost of having the goods repaired.• To the full extent permitted by law, FDC excludes all liability for the infringement of the Intellectual Property rights of any third party arising from any of the material or content published during the performance of the Services;• liability for misrepresentation or negligence arising from detrimental reliance on any of the material or content published in accordance with the performance of the Services. It is your responsibility to thoroughly check and gain independent expert advice on the suitability or correctness of the material to be published as part of the performance of the Services;• liability in respect of loss of data, 3rd party integration failure, breach of our security, interruption of business or any consequential or incidental damages; all representations, warranties or terms (whether express or implied) other than those expressly set out in the agreement.FDC’s total aggregate liability for all claims relating to the agreement is limited to the price for the Services payable under this agreement.Either party’s liability for any claim relating to the agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
20. INDEMNITYYou indemnify, defend and hold harmless FDC in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:• any breach of this agreement;• your negligent acts or omissions; or• your use of the Services, including any third party claims made in connection with or arising out of the Client’s use of the Service, other than use in accordance with this agreement.• breach of third party Intellectual Property.You indemnify, and agree to keep FDC, its directors, officers and employees indemnified, against all Loss arising from actions taken performing Services.
21. INTELLECTUAL PROPERTY AND SUPPLY OF RAW / EDITABLE FILESAll Intellectual Property Rights in Service Intellectual Property vest in, or will upon their creation vest in FDC.FDC grant you a non-transferable, non-exclusive license to:• publish one copy of the Service and supporting Service Intellectual Property unless otherwise stated by FDC; and• use and reproduce the other Service Intellectual Property;• You must not, without our prior written consent:• adapt, create derivative works from or merge the template or other Service Intellectual Property;• use the Service Intellectual Property for any purpose other than the specific purpose for which FDC have provided it;• reverse engineer, disassemble or decompile the Service Intellectual Property;• distribute, lend, resell, transfer, assign or sublicence the Service or other Service Intellectual Property, or allow any other person to use it except in the course of visiting the Service; and• remove or attempt to remove any proprietary or copyright notices or any labels on the Service or other Service Intellectual Property.The supply of raw / editable files is at the discretion of FDC. Additional Costs will apply, and may be based upon a percentage of the original Pricing Structure, or a retrieval and release fee.Stock images and commercial fonts remain the property of FDC, under license or its licensors at all times and are governed under licensing restrictions and rules and are not transferrable.All ad text, ad targeting, ad creative and all ad accounts remain FDC’s;FDC do not warrant that your use of the designs, materials or content produced by us for you in the course of the Service will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but FDC will advise you if FDC become aware of any infringement.You agree to carry the FDC logo or FDC text hyperlink in or under the website footer.You agree to allow FDC to use the Services provided for promotional and portfolio purposes.As part of the Services, FDC may place your company logo and case study on its corporate website or promotional collateral for promotional purposes and you irrevocably authorise FDC to do so.You agree to provide feedback or a testimony upon request after the release/closure of the Service.
22. CONFIDENTIALITYEach party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Pricing Structure. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement. Each Party shall refrain from making negative comments about the other Party, whether online or in person.The obligation of confidence as set out above does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities:• are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.• The Party required to disclose the other Party’s Confidential Information as set out above must:• provide a reasonable amount of notice to the other Party of the proposed disclosure;• consult with the other Party as to the form of the disclosure; and• take all reasonable steps to maintain such Confidential Information in confidence.Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
23. CALCULATION OF FEES IF NOT SPECIFIEDIf the Fees are not specified (in a Purchase Order, Pricing Structure or otherwise) at the commencement of the Service, then FDC will charge you at the Professional Hourly Rates for all work that FDC carry out for you in the course of the Service.The Professional Hourly Rates may change from time to time.FDC will perform the Services as specified in the Pricing Structure or as agreed in writing with the client, utilising the specified providers and/or platforms, for the specified term.FDC reserve the right to reallocate approved pay per click budget between different approved marketing platforms (Google, Facebook/ Instagram or LinkedIn or strategies (demographic targeting / remarketing) based on the effectiveness of the Digital Marketing Campaign in order to maximise results.Refunds will not be issued for paused Digital Marketing Campaigns or overpayment, a credit note may be issued at FDC’s discretion.Travel time is not included in our quotations as FDC office is our preferred location as it is appropriately set up for meetings and presentations. If you would prefer meetings at your office or any other location additional fees may apply.FDC reserves the right to charge Additional Costs caused by the Clients instructions, lack of instructions, interruptions, mistakes, work for which FDC is not responsible and changes to the requirements, expectations or hardware and software environment, and extra work required caused by faults or defects in any service provided by a third party.
24. PAYMENTPayment for Digital Marketing Campaigns must be made by credit card (Visa, Mastercard, Amex) or automatic direct debit from your nominated bank account.Digital Marketing Campaigns run for the calendar month, payments must be received by the 20th of the preceding calendar month in order for the campaign to run in that calendar month.Digital Marketing Campaigns that start mid-month due to delays in receiving approved ad creative or landing pages will have their monthly budget accelerated to be used by the end of that calendar month.Billing for Digital Marketing Campaigns may not be paused during the initial Term.The Term will automatically renew for subsequent periods of the same duration, unless either party gives the other party written notice terminating the agreement 30 days prior to the expiration of the Term.The agreed monthly Online Advertising fees will be invoiced to the client prior to the end of the month. All Online Advertising fees charged by FDC will be allocated as follows:• $2,000 or less per month per platform total budget = 50% to media buying and 50% to strategy, management and reporting fees.• $2,001 to $5,000 per month per platform total budget = 60% to media buying and 40% to strategy, management and reporting fees.• $5,001 to $30,000 per month per platform total budget 70% to media buying and 30% to strategy, management and reporting fees.• $30,001 to $50,000 per month per platform total budget = 75% to media buying and 25% to strategy, management and reporting fees.• $50,001 or more per month per platform total budget = 80% to media buying and 20% to strategy, management and reporting fees.In relation to our Services, FDC may issue invoices for:• payment as indicated in our Pricing Structure or estimate;• for Additional Costs on an ad hoc basis as agreed.FDC reserves the right to suspend all services provided to the client until any payment default is rectified under this Agreement.25. GSTUnless FDC expressly state otherwise, the Fees and Additional Costs do not include GST.If at any time FDC decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.FDC reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
26. DURATION OF AGREEMENT AND ITS TERMINATIONUpon execution by both parties this agreement will take effect: immediately and remain in effect until the purpose of the Service has been achieved.The term will automatically renew for subsequent periods of the same duration, unless either party gives the other party written notice terminating the agreement 30 days prior to the expiration of the term or both parties agree in writing to vary the Services provided.A party may terminate this agreement by notice in writing to the other party if:• the other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within  days after receiving notice from the other Party to do so;• the other party commits a material breach of this agreement that is not capable of remedy; or• the other Party becomes Insolvent.• • FDC may terminate this agreement if:• you do not provide any information or materials requested within a reasonable time after being asked to do so; or• FDC consider that mutual confidence and trust no longer exist.
• Upon termination of this agreement:• our obligation to carry out the Service ceases;• each party’s rights and obligations accrued prior to termination are not affected;• the license granted ceases;• any unpaid invoice owed to FDC must be paid, including for any minimum term (failure to do so may result in FDC registering this default with a credit reporting agency);• each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations; and• except as provided above and in sections 18, 19, 20, 21, 22 and 28 will continue.
27. DISPUTE RESOLUTIONIf a dispute arises out of or relates to this Agreement, a Party may not commence any court or arbitration proceedings relating to the dispute unless the Party has complied with this clause, except where the Party seeks urgent interlocutory relief. Where a Party fails to comply with this clause any other Party in dispute with the Party so failing to comply need not comply with this clause before referring the dispute to arbitration or commencing Court proceedings relating to that dispute.A Party claiming that a dispute to which this clause applies has arisen under this Agreement or in relation to this Agreement shall give written notice to each of the other Parties designating as its representative in negotiations relating to the dispute a person with authority to settle the dispute on its behalf. Each other Party given written notice shall promptly give notice in writing to each other Party designating as its representative in negotiations relating to the dispute a person with similar authority.FDC may pause work to conduct whatever investigations deemed appropriate and, within 90 days of the given written notice, seek to resolve the dispute.If the dispute is not resolved within the following 90 days (or within such further period as the representatives may agree is appropriate), the Parties shall within a further 90 days (or within such further period as the representatives may agree is appropriate) seek to agree on:• a process for resolving the whole or part of the dispute through means other than litigation or arbitration, such as further negotiations, mediation, conciliation, independent expert determination or mini-trial;• the procedure and timetable for any exchange of documents and other information relating to the dispute;• procedural rules and a timetable for the conduct of the selected mode of proceeding;• a procedure for selection and compensation of any neutral person who may be employed by the Parties to assist in relation to the dispute; and• whether the Parties should seek the assistance of a dispute resolution organisation.• The Parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this Clause is to attempt to settle the dispute between the Parties.After the expiration of the time established by or agreed upon under the Clause for agreement on a dispute resolution process, any Party which has complied with the provisions of Clause 27 and may in writing terminate the dispute resolution process provided for in those paragraphs and may then refer the dispute to arbitration or commence Court proceedings relating to the dispute.
Service Intellectual Property means designs, artwork, software and materials provided to you in the course of the Service, and any other Intellectual Property Rights created in the course of the Service, but does not include:• the Content Management System (except to the extent that FDC have modified it);• the FDC website Tools (except to the extent that FDC have modified them); or• Client Content.
Services means the Services that FDC provide to you in the course of the Service, as described in section 3.Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Service.Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.Variation means changes to the Pricing Structure, Specifications as described in section 6 and elsewhere in this agreement.Variation Notice means is the written notification regarding the costs associated with Variations as described in section 6 and elsewhere in this agreement.Warranty is any fix required to a supplied FDC Service within 28 days of Finalisation. The determination of warranty labour is at FDC’s discretion.Website Maintenance & Security Updates A slow-loading, poorly working website will negatively affect the success of any Digital Marketing Campaign. If a search engine determines that a website has broken pages, spam or viruses, it would no longer list the website in search results. Search engines make sure that the links served at the top of search results are quality websites that visitors would find helpful and relevant. To keep your Digital Marketing Campaign working optimally, regular website maintenance and security updates must be done. This includes checking the website’s back-end for any bugs and errors, monitoring search console, conducting link cleanup, security version updates and patches. The client’s website developer must ensure these tasks are completed regularly. If your website is built on one of our supported Content Management Systems we may be able to make changes to your website at our Professional Hourly Rate.