Terms, Conditions & Agreement
[Effective as of 1st September 2016]
(A) The Company has experience and expertise in the development of Search Engine Optimisation (“SEO”), Pay-per-click (“PPC”), and Social Advertising (“Social Ad”) strategies and maintenance for web pages, web sites and other computer networks.
(B) The Client is the owner of the Website.
(C) The Client wishes to engage the Company to provide it with the Services (including but not limited to SEO strategies and maintenance) in respect of the Website on the terms and conditions set out in this Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement unless the context otherwise indicates:
(a) Australian Privacy Principles means the Australian Privacy Principles set out in Schedule 1 of the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012).
(b) Services means the Services specified in the relevant Services Proposal.
(c) Services Proposal means a document of that name agreed to between the parties from time to time during the term of this Agreement.
(d) Specifications means any Specifications specified in the relevant Services Proposal.
(e) Term means the period of six (6) months or the term of a Services Proposal (whichever expires later).
(f) Website means the Website specified at Item 3 of the Schedule.
In this Agreement unless the context otherwise indicates:
(a) headings are for convenience only and do not affect the interpretation of this agreement;
(b) reference to the singular includes the plural and vice versa;
(c) reference to any gender includes the other genders;
(d) reference to a person includes a corporation and vice versa;
(e) reference to a party includes that party’s executors, administrators, successors and permitted assigns;
(f) every obligation entered into by two or more parties binds them jointly and each of them severally;
(g) a reference to a schedule is to a schedule to this agreement; a reference to a part, clause or other subclause is a reference to a part, clause or other subclause in this agreement;
(h) any annexures and appendices form part of this agreement;
(i) any document referred to in this agreement will mean that document as well as any other document in substitution for that document which has been approved in writing by the parties;
(j) where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
(k) the words “includes” and “including” or words of similar effect are not words of limitation; and
(l) a reference to a statute, regulation or other law includes all regulations and instruments made under such law and all consolidations, amendments, re-enactments or replacements of it.
The Client appoints the Company to provide the Services for the Term.
3.1 The Company will provide the Client with the Services specified in the relevant Services Proposal.
3.2 The Company is expressly authorised to use relevant keywords and/or phrases in developing, improving and/or maintaining the ranking of and/or positioning of the contents of the Website in the search engines specified in the Services Proposal (or, if none are specified, as determined by the Company).
3.3 The Client acknowledges that the Services are intended to provide the Client with preferential positioning in selected search engines and report results on an ongoing and timely basis and may include:
(a) On Page Optimisation;
(b) Off Page Optimisation;
(c) Link Building;
(d) Social Media Management;
(e) Content Optimisation; and
(f) Keyword Research and Analysis.
3.4 The Company will endeavour to make every effort to keep the Client informed of any changes that the Company is made aware of that impact any of the Services to be provided and the execution thereof under this Agreement. The Client acknowledges that Company may not become aware of changes to third party resources, industry changes or any other changes that may or may not affect SEO services.
3.5 The Company reserves the exclusive right, for the duration of this Agreement, to approve or disapprove any design strategies, existing code or other techniques, whether requested by the Client or presently employed by the Client that are considered by the Company to be detrimental to the Company’s provision of the Services.
4. OBLIGATIONS OF THE COMPANY
4.1 will provide the Services with due care and skill having regard to general optimisation criteria as is stipulated by the industry and otherwise in accordance with the Services Proposal.
4.2 will provide the Client any reports specified in the Services Proposal with the regularity specified in the Services Proposal.
4.3 will create, install, manage, develop and employ custom SEO strategies in accordance with the Services Proposal.
5. OBLIGATIONS OF THE CLIENT
5.1 The Client must:
(a) provide the Company with administrator access rights to the Website and any other systems required.
(b) pay the Company all Fees specified in the Services Proposal in accordance with clause 11 below.
(c) ensure for the duration of the Term that the following statement is included at the bottom of the Website’s home page the following statement: “SEO by kevindam.com”
5.2 Client acknowledges the following with respect to Services:
(a) The Company accepts no responsibility for policies of third-party search engines, directories or other Web Sites (“Third-party resources”) that the Company may submit to with respect to the classification or type of content it accepts whether now or in the future. The Website or its content may be excluded or banned from any Third-party resource at any time. The Client agrees not to hold the Company responsible for any liability or actions taken by Third-party resources under this Agreement.
(b) the nature of many of the resources the Company may employ under this Agreement are competitive in nature. The Company does not guarantee #1 positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. The Client acknowledges that the Company’s past performance is not indicative of any future results the Client may experience.
(c) SEO and submissions to search engines and directories can take an indefinite amount of time for inclusion. Each edit or change made to any resources employed by the Company will repeat these inclusion times.
(d) any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
(e) search engines may drop listings from its database for no apparent or predictable reason. The Company shall re-submit resources to the search engine based on the current policies of the search engine in question.
6. DELIVERY DATES AND MILESTONES
6.1 The Client acknowledges that although the Company will use reasonable diligence in the provision of the Services and endeavour to deliver to the Client all deliverables and milestones in accordance with the Services Proposal, all delivery deadlines and the other payment milestones specified in the Services Proposal are estimates only.
6.2 The Company will retain all documents, source code, keyword lists and other assets employed or created for the Client during the Term. The Client will only receive the output formats of Company’s work where specified in the Services Proposal.
6.3 The output is to be used only within the scope of the project as outlined in the Services Proposal. The Client shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to the Company for use in the SEO services rendered under this agreement.
7. NO POSITION GUARANTEE
The ranking of the Website may vary during the Term due to changes in the Search Engines’ algorithms (logic on ranking sites) which is beyond the control of the Company. Additionally, both newly launched websites and other competitor websites may be optimised and submitted every now and then. Due to this reason the Company cannot guarantee positions.
8.1 During the Term, the Client will not provide any other web designer or SEO services provider access to the Website. If for some reason the Client needs to give access to the Website to any other third party, the Client must provide the Company with at least 7 days prior written notice.
8.2 In the event that the Client breaches clause 8.1 above:
(a) The Company will not be responsible for the ranking of the Website in the event of the Client breaching clause 8.1 above.
(b) the Company may immediately terminate this Agreement and any outstanding balance payment to date becomes payable by the Client to Company immediately.
8.3 The Client must provide the Company with log-in information (username and password) in order that the Company have FTP access to the Website for the purpose of providing the Services. The Company will maintain confidentiality of such log-in information. During the Term, the Company reserves the right to change usernames and passwords to maintain confidentiality.
8.4 The Client warrants to the Company that on or before the date of this Agreement, it has informed any other SEO service providers or other persons having access to the Website that the Company has been engaged to provide SEO services.
8.5 The Client must allow implementation of all optimisation strategies on the Website. The Client is responsible for ensuring that the Website is always active and accessible.
9. INTELLECTUAL PROPERTY
9.1 The source code and backend tactics used by the Company to optimise the Website will remain the intellectual property of the Company.
The Client warrants that the Website is not hosted with free web hosting providers. In cases where there is either concern that the current hosting IP address may be part of a ‘bad neighbourhood’ or for reasons of optimisation, then the Company may request the Client change its hosting provider.
11. FEES AND SCOPE OF ENGAGEMENT
11.1 The Client must pay the Company the Fees specified in the relevant Services Proposal.
11.2 In the event that the Client requests that the Company provide it with any additional services such as changes, edits in layout or structure, source code alterations or any other service (“Additional Services”), the Company will provide the Client with a separate proposal for such Additional Services. No Additional Services will be provided by the Company until the Client has accepted the Company’s proposal for the Additional Services in writing. The Fees for these additional services will be billed separately.
11.3 The Services will be provided primarily off-site. However, in the event that the Company is required to provide any Services on-site at the Client’s premises, the Client will be required to ensure that the Company is provided with any appropriate information in an orderly fashion.
11.4 The Company reserves the right to review its Fee structure from time to time.
12. PAYMENT TERMS/WORKFLOW
12.1 Unless stated otherwise in the Services Proposal:
(a) The Client must pay the first monthly payment, without set-off or deduction either via EFT, Credit Card or Cash prior to the commencement date of the Term.
(i) The Client will be invoiced calendar monthly.
(ii) All Fees must be paid in advance on the due date stated in the tax invoice via direct debit or credit card without set-off or deduction. If no due date is stated in the tax invoice, payment must be made within 7 days of the date of the tax invoice.
12.2 In the event of a failed direct debit deduction, the Client must pay the Company a fee of $30.00 payable immediately upon demand.
12.3 Interest will be charged on overdue accounts at a rate of 20% per annum, from the date of the Payment due to the date or payment.
13.1 In this clause:
(a) expressions which are not defined, but which have a defined meaning in GST Law, have the same meaning; and
(b) “GST Law” has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999.
13.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this document are exclusive of GST.
13.3 If GST is imposed on any supply made under or in accordance with this document, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this document.
13.4 If this document requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense, plus any GST payable by the other party.
13.5 If at any time an adjustment event arises in respect of any supply made by a party under this document, a corresponding adjustment must be made between the parties in respect of any amount paid to that party by the other party pursuant to this clause and payments to give effect to the adjustment must be made and the supplier must issue an adjustment note.
14.1 The Company acknowledges that all of the information provided to it by the Client under this Agreement is confidential and is being provided to the Company in order to enable it to supply the Services.
14.2 The Company undertakes that it will not, without the prior consent of the Client, disclose any of the confidential information to any other person, nor will they use or permit the use of any such information by any office, employee or agent or any other person under their control for any purpose other than as required to enable it to provide the Services.
15.1 The Company will manage any personal information provided to it by the Client in accordance with the Australian Privacy Principles.
15.2 The Company will only collect the personal information it needs from the Client in order to enable it to provide the Services.
15.3 The Company will take reasonable steps to protect the Client’s personal information from misuse, interference and loss, and from unauthorised access, modification or disclosure.
15.4 The Client:
(a) acknowledges that the Company may engage third parties to provide all or part of the Services under this Agreement and this may involve the transmittal of the Client’s personal information to such third parties. The Company will only transmit the Client’s personal information on the basis that the third party treat it in accordance with the Australian Privacy Principles.
(b) expressly consents to being contacted by third parties directly in respect of any SEO and/or PPC services or similar.
15.5 The Company may utilise overseas based employees, contractors or service providers from time to time and this may involve the transmittal of the Client’s personal information overseas. The Client acknowledges that it is aware that the overseas recipient of its personal information may not be bound by laws which provide the same level of protection for personal information provided by the Australian Privacy Principles and that the Company will not be responsible for any breach of privacy by the recipient or class of recipients.
16.1 Either party may terminate this Agreement upon written notice to the other party if the other party commits any breach of any provision of this Agreement and fails to remedy such breach within 14 days of receipt of a notice specifying:
(a) The exact nature of the breach committed by the defaulting party; and
(b) What is required by the defaulting party to remedy the breach.
16.2 The Company may by written notice to the Client immediately terminate this Agreement upon:
(a) The making or filing of any application to wind up the Client under any law or government regulation relating to bankruptcy or insolvency;
(b) The appointment of a receiver, agent or manager for all or substantially all of the property of the Client;
(c) The making by the Client of any assignment, arrangement or composition whether formal or informal for the benefit of its creditors;
(d) The institution by the Client of any proceedings for the liquidation or winding up of its business;
(e) The failure to pay the Fees within 2 business days of the due date for payment; or
(f) In any event and without the need for default by the Client, upon giving the Client 14 days prior notice.
16.3 The Client may by written notice to the Company immediately terminate this Agreement, however the Client also agrees to:
(a) Continue to pay for the next 3 months of services as a cooling off period to cover for costs incurred as a result of starting the campaign, and;
(b) Waive the Company of any obligation to complete Services during the 3 months cooling off period. Services will be completed by the Company on a best efforts basis while the Company is reallocating resources.
16.3 Upon termination:
(a) Each party must return to the other any confidential information then in its possession; and
(b) The Client must within 14 days of demand pay to the Company any monies outstanding up to and including the date of termination.
(c) The Client must pay to the Company immediately upon demand as a liquidated debt any costs (including legal costs on a solicitor/client basis) incurred by the Company as a result of a breach by the Client of this Agreement.
16.4 Unless the Agreement is terminated in accordance with this clause, this Agreement will automatically renew upon the conclusion of the Term for a further period equal to the Term.
17.1 These standard terms and conditions may be amended by the Company from time to time.
17.2 Any amendment to these standard terms and conditions will become binding on the Client on the first day of the month following the month during which the relevant amendment was published on the website of the Company provided that no relevant, material objection was made by the Client during the period leading up to the date on which the amendment is effected.
18. WARRANTY AND REPRESENTATION
In the event that the Client is a Company, Partnership, Trust the submission of the Booking Form online, by email, in person or via facsimile hereby warrants and represents that he has been duly authorised to act on behalf of the Client and to contract with Company on behalf of the Client.
19. LIABILITY AND INDEMNITY
19.1 The Client holds the Company harmless against any claim and any damages suffered by the Client arising from or in connection with any Services provided by Company.
19.2 The Client shall not have any claim against the Company for any losses, damages, costs or expenses resulting from the provision or failure to provide the Services, whether such failure results from:
(a) Technical failure (including but not limited to errors, malfunctions, interruptions or delays in the provision of the Services);
(b) Force majeure; or
(c) Any other cause.
20. LIMITED WARRANTY AND LIMITATIONS ON DAMAGES
20.1 The Company warrants that the Services will conform to the Specifications for a period of 30 days from the date of acceptance by the Client. If the Services do not conform to the Specifications, the Company shall be responsible to make any corrections as required without unreasonable delay, at the Company’s sole expense and without charge to the Client, to bring the Services into conformance with the Specifications.
20.2 This warranty shall be the exclusive warranty available to the Client. The Client waives any other warranty, express or implied. The Client acknowledges that the Company:
(a) does not warrant that the Services will work on all platforms; and
(b) will not be responsible for the results, productivity or any other measurable metric not specified in the relevant Services Proposal.
20.3 Except as provided by these terms, the Company, its directors, employees, agents and/or suppliers, shall not be liable for any loss or damage whatsoever (including, without limitation, incidental, special and/or consequential damages or lost profits) resulting from:
(a) any use or access of, or any inability to use or access, the Website, any third party link or any content contained on the Website or any third party link;
(b) any unauthorised access to or alterations of the Client’s transmissions or data; or
(c) any statements or conduct of any user of the Website, including any information and/or advice and any defamatory statements or offensive conduct.
20.4 To the fullest extent permitted by law the Company’s liability for breach of any these terms or otherwise in relation to the provision of Services is limited at the option of the Company to the following:
(a) The supply of the Services again; or
(b) The payment of the cost of having Services supplied again; and
The Client agrees to make available to the Company, for the Company’s use in performing the services required by this Agreement, such items of hardware and software as the Client and the Company agree are reasonably necessary for such purpose. The Client agrees to make available any access to services, hosting, ftp or other resources deemed necessary by the Company to fulfil its obligations under this Agreement.
22.1 Entire Agreement
This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
Each of the parties warrant that they have read and understood the terms of this Agreement.
22.3 Governing Law
(a) This Agreement is governed by the laws of New South Wales, Australia.
(b) Each of the parties irrevocably submits to the jurisdiction of the courts of New South Wales, Australia.
(a) The Client acknowledges that the Company may assign its rights under this Agreement to a third party and that in the event of an assignment the Client will remain bound by the terms of this Agreement.
(b) The Client may not assign its rights under this Agreement.
If a clause of this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
A variation of this Agreement must be in writing and signed by the parties.
(a) No right under this agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
(b) A waiver by one party under this clause does not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.
(c) A party does not waive its rights under this Agreement because it grants an extension or forbearance to the other party.
22.8 Relationship of the parties
The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
22.9 Further steps
Each party will do all things and execute all further documents necessary to give full effect to this Agreement.
This Agreement may be executed in any number of counterparts.
22.11 Exchange by Facsimile or Email
(a) The parties agree that this Agreement may be exchanged by exchanging facsimile copies of the execution pages duly signed by the parties or by exchanging email copies of the Agreement with the execution pages duly signed by the parties.
(b) If this Agreement is exchanged in accordance with clause 22.11(a), the parties will, without delay, forward signed original copies of the Agreement to complete the exchange. The signed original copies will be dated the date of exchange of this Agreement pursuant to clause 13.1.
(a) The terms of this Agreement survive its termination to the extent permitted by law.
(b) This Agreement shall be binding upon the heirs, executors, administrators and successors in title of the parties.
All payments due under this Agreement shall be paid in Australian Dollars in Australia.
22.14 Dispute resolution
(a) If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
(b) Any party claiming that a dispute exists must notify the other party to the dispute (the ‘Second Party’) in writing of the nature of the dispute.
(c) If the dispute is not resolved by agreement within five working days of the Second Party receiving the notice referred to in paragraph (2) above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator shall be borne equally between the disputing parties. The chosen mediator shall determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
(d) If the parties have not mediated a resolution of the dispute within 10 working days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.
(a) Any provision of, or the application of any provision of, this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
22.16 Costs and expenses
Subject to contrary provision of this Agreement, each party will bear its own costs and expenses in relation to the negotiation, preparation, execution, delivery and completion of this Agreement and any other related documentation.
(a) A notice under this Agreement is only effective if it is in writing and addressed to the recipient at any of the addresses of that party specified at Item 1 or Item 2 of the Schedule (as applicable), and given as follows:
(i) by hand;
(ii) by prepaid mail;
(iii) by facsimile; and
(iv) by email.
(b) A notice sent for the purposes of this clause will be considered received:
(i) if delivered before 5.00 pm, on that Business Day, otherwise on the next Business Day;
(ii) if sent by pre-paid mail, on the third Business Day after posting; or
(iii) if transmitted by facsimile before 5.00 pm on a Business Day and a complete transmission report is received on the day of transmission, provided that if the recipient receives by facsimile transmission a notice that is illegible, the recipient must notify the sender immediately and the sender must continue to retransmit the notice until the recipient confirms that it has received a legible notice; and
(iv) if emailed, on the date recorded on the device from which the Party sent the email, unless the sending Party receives an automated message that the email has not been delivered,
except that a delivery by hand, fax or email received after 5:00pm (local time of the receiving Party) will be deemed to be given on the next Business Day.