Terms of Service

1. 1. About these Terms

1.1 These Terms of Service (“Terms”) apply between Profit Drive Pty Ltd (“Profit Drive”, “we”, “us”, “our”) and the person or entity that engages our services (“you”, “your”, “Client”).

1.2 These Terms apply when you sign a proposal, service agreement, quote or statement of work with us (each a “Service Agreement”), or when you otherwise instruct us to begin work.

1.3 Order of precedence. If there is any inconsistency, the documents apply in this order: (a) a signed Service Agreement; (b) these Terms; © any other document we give you.

1.4 Your use of profitdrive.com.au is also subject to these Terms and to our Privacy Policy.

2. Definitions

3. Our services

3.1 We provide digital marketing services which may include search engine optimisation, paid advertising, web design and development, content, creative and strategic consulting, as described in your Service Agreement.

3.2 Results. Digital marketing outcomes depend on factors outside our control, including Platform algorithms, auction dynamics, competitor activity, your pricing and offer, your sales process, and market conditions. We do not guarantee any particular ranking, traffic volume, lead volume, cost per lead, conversion rate, revenue or return on investment, and we do not make any such guarantee unless it is expressly written into your Service Agreement and signed by a director of Profit Drive.

3.3 What we do promise. We will provide our services with due care and skill, using suitably qualified people, and within a reasonable time. Nothing in these Terms limits the guarantees you have under the Australian Consumer Law (see clause 13).

3.4 Subcontractors. We may use employees, contractors and offshore team members to deliver your work. We remain responsible to you for work performed on our behalf.

3.5 Acceptance of clients. We may decline to take on a new client or a new scope of work.

4. Your responsibilities

4.1 You agree to: (a) give us accurate and complete information about your business, products, services and pricing; (b) give us the access we need to your Platforms, website, hosting, domain and analytics; © provide content, approvals and feedback within the timeframes in clause 6; (d) tell us promptly about anything that affects the work — a change of offer, a site outage, a legal notice, a Platform warning, staff changes; (e) comply with all applicable laws, including the Australian Consumer Law, the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), and the Platforms’ own advertising policies; (f) hold and maintain any licence, registration, permit or professional accreditation your industry requires for the claims you ask us to advertise.

4.2 You must not ask us to: (a) publish claims that are false, misleading or unsubstantiated; (b) engage in click fraud, artificial traffic generation, or manipulation of a Platform’s systems; © do anything unlawful, or anything that breaches a Platform’s policies.

4.3 If you ask us to do something we reasonably believe breaches clause 4.2, we may decline, and we will tell you why. Declining on this basis is not a breach of these Terms by us.

5. Platform accounts, access and ad spend

5.1 Account ownership. Where you already hold a Platform account, you keep it. Where we create a Platform account for you, it is yours, and we will transfer ownership or administrator access to you on request once all amounts owing to us are paid.

5.2 Our access. You grant us the access we need to do the work. If you remove our access without notice, we may pause the affected services until access is restored.

5.3 Ad Spend — who pays. Unless your Service Agreement says otherwise, you pay the Platform directly using your own payment method. Ad Spend is not part of our fees, and we do not mark it up unless the Service Agreement says we do.

5.4 Where we pay on your behalf. If we agree to pay Ad Spend on your behalf, you must pre-fund or reimburse it as agreed. We are not required to fund Ad Spend from our own money, and we may pause campaigns if funds are not available.

5.5 Platform decisions. Platforms can suspend accounts, disapprove ads, ban advertisers, change algorithms, change pricing and change policies without notice and without giving reasons. We are not responsible for these decisions or their consequences, except to the extent they are caused by our failure to provide services with due care and skill.

6. Approvals, feedback and delays

6.1 Where we submit work to you for approval, you agree to approve it or give consolidated written feedback within 5 business days.

6.2 If we do not receive a response within 5 business days, and we have sent one written reminder, the work is taken to be approved and we may proceed. This does not apply to anything that would create a legal or regulatory risk for you, or to a final launch or go-live, which always requires your express approval.

6.3 If your delay prevents us from performing the services, we may: (a) reallocate the time to other work and reschedule yours to the next available slot; and (b) continue to invoice retainer fees, because the resources have been reserved for you.

6.4 Revisions. Your Service Agreement sets out how many rounds of revision are included. Additional revisions, and work outside the agreed scope, are quoted and charged separately, and we will get your written approval before starting.

7. Fees, invoicing and payment

7.1 Fees. You agree to pay the fees in your Service Agreement, which may be fixed project fees, milestone payments, monthly retainers, or a combination.

7.2 GST. Unless stated otherwise, our fees are exclusive of GST. Where GST applies, we will add it and issue a valid tax invoice.

7.3 When payment is due. Invoices are payable within 7 days of the invoice date, unless your Service Agreement states different terms.

7.4 Overdue amounts. If an invoice is not paid by its due date, we may charge interest on the overdue amount at 1.5% per month (18% per annum), calculated daily from the due date until the amount is paid in full. This is intended to compensate us for the cost of being out of pocket, not to penalise you.

7.5 Suspension. If an invoice is more than 14 days overdue, we may suspend some or all services after giving you 7 days’ written notice and an opportunity to pay. We will resume once the account is brought up to date. Fees continue to accrue during a suspension caused by non-payment.

7.6 Recovery costs. If an amount remains overdue after 30 days, we may refer it to a debt collection agency or lawyer and recover our reasonable, documented costs of recovery from you.

7.7 Credit reporting. Where the law and the relevant bureau’s rules allow it, we may list an overdue, undisputed debt with a commercial credit reporting bureau. We will only do this after giving you written notice and a reasonable opportunity to pay or to raise a genuine dispute, and we will not list a debt that is genuinely in dispute.

7.8 Set-off. You must pay our invoices in full without set-off or deduction, except where you have a genuine, notified dispute about a specific invoiced amount. Where you dispute part of an invoice, you must pay the undisputed part on time.

7.9 Price changes. We may change our fees for ongoing services by giving you 30 days’ written notice. If you do not accept the change, you may terminate the affected service by written notice before the new fees take effect, without paying any early-termination amount. If you continue the service after the notice period, the new fees apply.

7.10 Chargebacks. If you dispute a card payment with your bank without first raising the issue with us and allowing us a reasonable opportunity to resolve it, and the chargeback is later found to be unjustified, you agree to reimburse us the disputed amount and any chargeback fee we incur. Nothing in this clause limits your rights under the Australian Consumer Law or your card scheme’s rules.

8. Refunds

8.1 We will refund you where: (a) we have failed to deliver services you have paid for; (b) a refund is required under the Australian Consumer Law; or © we terminate your Service Agreement without cause, in which case we refund any prepaid amounts for services not yet delivered.

8.2 Because marketing outcomes cannot be guaranteed, dissatisfaction with results alone — rankings, traffic, leads or return on investment — does not by itself entitle you to a refund. This does not affect your rights under clause 13 if we have failed to provide the services with due care and skill.

8.3 Ad Spend already committed to a Platform is not refundable by us.

9. UPDATES TO THESE TERMS

9.1 Your material. You keep ownership of everything you give us — your brand, logos, trade marks, images, copy, data and customer lists. You grant us a licence to use it for the purpose of delivering your services.

9.2 Your warranty. You warrant that you own or are licensed to use everything you give us, and that our use of it will not infringe anyone’s rights. This matters: if you send us an image, font, testimonial or piece of copy you do not have the rights to, we will publish it in good faith and you are responsible for the consequences (see clause 15).

9.3 Deliverables. On full payment of all amounts owing, you own the Deliverables produced specifically for you.

9.4 Our Materials. We keep ownership of Our Materials at all times. Where Our Materials are embedded in or necessary to use a Deliverable, we grant you a perpetual, non-exclusive, non-transferable licence to use them as part of that Deliverable for your own business purposes.

9.5 Restrictions. You must not resell, sublicense or distribute Our Materials as a standalone product or service, or provide them to a competing agency for the purpose of replicating them. Nothing in this clause prevents you from using generally available marketing knowledge, or from engaging another provider to perform marketing services for you.

9.6 Third-party licences. Some Deliverables include third-party assets — stock images, fonts, plugins, themes. Those are licensed on the third party’s terms, and any ongoing licence fees are your responsibility unless we agree otherwise in writing.

9.7 Portfolio. We may describe and display non-confidential work we have done for you in our portfolio, case studies and marketing, including your business name and logo. You can opt out at any time by emailing us, and we will remove it from our active marketing within a reasonable time.

10. Confidentiality

10.1 Each of us may receive confidential information from the other. Each of us agrees to keep the other’s confidential information confidential, to use it only for the purposes of the engagement, and to protect it with reasonable care.

10.2 This does not apply to information that is public through no fault of the receiving party, was already known, is independently developed, or must be disclosed by law.

10.3 This clause survives termination.

11. Personal information and data

11.1 Our handling of personal information is set out in our Privacy Policy at profitdrive.com.au/privacy.

11.2 Where we handle personal information on your behalf — for example leads, customer lists, CRM records, custom audiences or email subscribers — we do so as your service provider, on your instructions, for the purpose of delivering your services.

11.3 You are responsible for having a lawful basis to collect that information and to disclose it to us, and for having the consents and privacy notices your own customers are entitled to. You must not send us sensitive information (health, biometric, racial or ethnic origin, political, religious or sexual orientation information) unless we have agreed in writing to handle it.

11.4 We will tell you promptly if we become aware of a data breach affecting information you have given us, and cooperate with you on assessment and notification.

11.5 On termination, we will return or delete personal information we hold on your behalf, on request, subject to any records we must keep by law.

12. Website, hosting and domains

12.1 You own your domain name. If we register or renew a domain for you, we do so as your agent and it is registered in your name.

12.2 Where we host your website, hosting is provided on the terms in your Service Agreement. If hosting ends, we will provide a full export of your site files and database once all amounts owing are paid, and we may charge a reasonable, quoted fee for a managed migration.

12.3 We are not responsible for a website’s performance where you or a third party makes changes to it without our involvement.

12.4 We do not provide ongoing security patching, backups, uptime monitoring or maintenance unless it is in your Service Agreement.

13. Australian Consumer Law

13.1 Our services come with guarantees that cannot be excluded under the Australian Consumer Law.

13.2 Nothing in these Terms excludes, restricts or modifies any right, guarantee, warranty or remedy you have under the Australian Consumer Law or any other law that cannot lawfully be excluded.

13.3 To the extent our services are not of a kind ordinarily acquired for personal, domestic or household use, and to the extent permitted by law, our liability for failure to comply with a consumer guarantee is limited, at our option, to resupplying the services or paying the cost of having them resupplied.

13.4 If any part of these Terms would otherwise be void, unenforceable or unlawful, it is read down to the extent necessary, or severed.

14. Limitation of liability

14.1 Subject to clause 13, and to the maximum extent permitted by law:

(a) neither party is liable to the other for indirect, consequential, special or punitive loss, or for loss of profit, revenue, goodwill, business opportunity, anticipated savings or data; and

(b) our total aggregate liability arising out of or in connection with your engagement is limited to the fees you have paid us for the affected services in the 3 months immediately before the event giving rise to the claim.

14.2 We are not liable for loss to the extent it is caused by: (a) your breach of these Terms, or information you gave us that was inaccurate or incomplete; (b) a Platform’s act or omission, including suspension, disapproval, policy change or algorithm change; © your own business decisions, pricing, capacity, sales process or customer service; (d) changes made to your website, ads or accounts by you or a third party without our involvement.

14.3 Clause 14.1(b) does not limit your obligation to pay fees, or either party’s liability for a breach of confidentiality, or for fraud.

15. Indemnity

15.1 You indemnify us against any claim, loss, damage, fine or reasonable legal cost we suffer arising from: (a) content, claims, images, data or material you supplied to us, or instructed us to publish; (b) your breach of clause 4.1(e), 4.1(f), 4.2, 9.2 or 11.3; © your breach of a Platform’s terms, or of any law, in connection with the services.

15.2 This indemnity is reduced to the extent the loss was caused by our own breach or negligence.

15.3 We will tell you promptly about any claim covered by this clause, and will not settle it without your consent (not to be unreasonably withheld).

16. Force majeure

16.1 Neither party is liable for a failure or delay in performing its obligations (other than an obligation to pay money) caused by an event outside its reasonable control, including natural disaster, pandemic, war, cyber attack, industrial action, government action, or the failure of an essential third-party service.

16.2 The affected party must notify the other as soon as practicable and use reasonable efforts to work around the event.

16.3 If the event continues for more than 30 days, either party may terminate the affected services by written notice, and you pay for services delivered up to that date.

17. Term, cancellation and termination

17.1 Term. Your Service Agreement sets out the minimum term, if any. After any minimum term, ongoing services continue month to month until cancelled.

17.2 Your right to cancel. You may cancel an ongoing service by giving us 30 days’ written notice to admin@profitdrive.com.au. We will continue to deliver the service during the notice period, and you pay for that period. You are not charged any amount for a period after the notice expires.

17.3 Cancelling during a minimum term. If you cancel before the end of a minimum term, you pay the remaining fees for that term, unless you are cancelling because we have breached these Terms and not fixed it within 14 days of written notice, or because of a price change under clause 7.9.

17.4 Our right to terminate for cause. We may terminate immediately by written notice if you: (a) fail to pay an invoice that is more than 30 days overdue, after we have given you written notice and 7 days to pay; (b) engage in fraudulent or unlawful conduct; © materially breach these Terms and do not fix it within 14 days of written notice; or (d) become insolvent or have an administrator, liquidator or receiver appointed.

17.5 Our right to terminate without cause. We may terminate an ongoing service by giving you 30 days’ written notice. In that case, we refund any prepaid fees for services not delivered.

17.6 Project work. If a project is terminated part-way through, you pay for work completed to that date, calculated against the project milestones or, if there are none, on a reasonable pro-rata basis.

18. What happens when we finish

18.1 On termination or expiry, once all amounts owing to us are paid: (a) we transfer or hand back administrator access to Platform accounts we created for you; (b) we provide the final Deliverables in a usable format; © we provide an export of your website files and database if we host it; (d) we remove our access from your Platforms.

18.2 We will complete the steps in clause 18.1 within 14 days of the request, or 14 days of final payment, whichever is later.

18.3 We are not required to provide Our Materials, internal working files, drafts, project management records, or our internal documentation.

18.4 We keep records and backups for as long as we need to for legal, tax and insurance purposes.

19. Non-solicitation of staff

19.1 During the engagement and for 12 months afterwards, you agree not to directly employ or engage as a contractor any Profit Drive employee or contractor who worked on your account, without our written consent.

19.2 This does not apply to someone who responds to a general public advertisement not directed at our team.

19.3 If you do engage one of our people in breach of this clause, you agree to pay us a placement fee equal to 25% of that person’s first-year total remuneration, which the parties agree is a reasonable estimate of our recruitment and training cost.

20. Changes to these Terms

20.1 We may update these Terms from time to time.

20.2 If we make a change that materially and adversely affects you, we will give you 30 days’ written notice before it takes effect. If you do not accept the change, you may terminate the affected services by written notice before it takes effect, without paying any early-termination amount.

20.3 Changes do not apply retrospectively to work already performed, and do not vary a signed Service Agreement.

20.4 Minor changes — correcting an error, updating our contact details, clarifying wording without changing its effect — take effect when published.

21. Disputes

21.1 Talk to us first. If a dispute arises, the party raising it must notify the other in writing, setting out what the dispute is about and what outcome it wants. Both parties agree to meet (in person, by phone or by video) within 10 business days to try to resolve it in good faith.

21.2 Mediation. If the dispute is not resolved within 30 days of the notice, either party may refer it to mediation. The mediator is agreed between the parties, or, if they cannot agree within 10 business days, appointed by the President of the Queensland Law Society. The parties share the mediator’s costs equally and each pays its own costs.

21.3 Court. If mediation does not resolve the dispute, either party may commence proceedings. Nothing in this clause prevents either party from seeking urgent interlocutory relief, or from recovering an undisputed debt.

21.4 Costs. Each party bears its own costs of a dispute, unless a court orders otherwise.

21.5 Continuing to work. While a dispute is on foot, both parties continue to perform their obligations, except where the dispute is about non-payment and clause 7.5 applies.

22. General

22.1 Governing law. These Terms are governed by the laws of Queensland, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Queensland.

22.2 Entire agreement. Your Service Agreement and these Terms are the whole agreement between us about the services, and replace any earlier discussions, proposals or representations.

22.3 Assignment. Neither party may assign the agreement without the other’s written consent, except that either party may assign to a purchaser of substantially all of its business on written notice.

22.4 Notices. Notices must be in writing and sent by email to admin@profitdrive.com.au (for us) or to the email address on your Service Agreement (for you). A notice is taken to be received on the business day it is sent, unless a delivery failure is received.

22.5 Waiver. A failure to enforce a right is not a waiver of it.

22.6 Severance. If a provision is void or unenforceable, it is severed and the rest continues.

22.7 Survival. Clauses 7, 9, 10, 11, 13, 14, 15, 18, 19, 21 and 22 survive termination.

22.8 Relationship. Nothing in these Terms creates a partnership, joint venture, employment or agency relationship, other than as expressly stated.

10. CONTACT INFORMATION