Terms of Service Agreement
Effective date: 1 June 2018
1.1 These Terms and Conditions apply to the provision of services by SEO Shark Pty Ltd ABN: 39607397535 (“SEO Shark”, “we”, “us”, “our” or “the Company”) to you as a user and customer (“you”, “your” or “the Client”).
1.2 This agreement with us (“Contract” or “Terms” or “Terms and Conditions”) is for each service or services, including the Web Design Services, SEO Services, PPC Services, Social Media Services or the Content Services, (the “Service” or “Services”).
2 Provide of services
2.1 SEO Shark will commence the Services to the Client on date that the first invoice is paid.
2.2 This agreement will roll on a monthly basis without notice to the Client.
2.3 Nothing in the Agreement transfers to either party any intellectual property rights (“IPR”) owned by the other party existing prior to the commencement of the Services. All IPR in the materials produced by SEO Shark in connection with the Services (including websites, designs, information, reports and data) other than your pre-existing IPR, are and will remain owned by us. We grant you a perpetual, irrevocable, non-exclusive, royalty-free licence to use those materials for the purpose of using our Services only.
2.4 You acknowledge and accept that a third party supplier may be used to provide the Service to you and we may change this supplier at any time in our sole discretion. Should a change in supplier occur, you acknowledge and agree that we have full authorisation to move, alter or delete your data from systems accessed by the supplier as reasonably necessary.
3 Provision of secure access to our systems
3.1 You must keep all login details secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment).
3.2 You agree that you are totally responsible for all actions of the people (if any) to whom you provide your login details (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those login details, and that we are entitled to treat instructions provided by those people through such access as instructions originating from you.
3.3 You must notify us immediately of any breach of security or unauthorised use of your login details to access our systems. We will not be liable for any loss you incur due to any unauthorised use of your login details.
3.4 You consent to our use of your login details in provisioning the Services, including in respect of any migration or transition of your account, content or data (to or from any suppliers we use) as reasonably necessary for the continued provision of the Services.
4 Your obligations
4.1 You must provide us with such co-operation and support as we may reasonably request to perform the Services, including by:
a) responding promptly to our communications in relation to the Services; and
b) providing accurate and prompt responses to our requests for any information or documentation reasonably required by us to perform the Services.
4.2 You are solely responsible for obtaining any and all necessary intellectual property clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name, any materials given by you to us, any content that you upload to your Service, and merchant services agreements between you and the relevant financial institutions.
4.3 If you fail to fulfil your obligations in accordance with this clause 4, we may be unable to perform the Services as stated. The fees set out in this agreement (“Fees and payments”) will still be payable as required even if we are unable to perform the services due to your failure to fulfil your obligations in accordance with this clause.
4.4 You indemnify us from and against any and all liabilities incurred by us in connection with:
a) our use or reliance upon any images or trading names, or any data, information, specifications, documentation, computer software or other materials provided by you; and
b) our compliance with any directions or instructions by you in relation to the provision of the Services.
4.5 Except to the extent that we expressly agree to do so as part of a Service, we recommend that you backup your data (whether hosted on our computer systems or provided to us in connection with the performance of the Services) at such intervals as are reasonable having regard to the nature of the data.
5 Fees and payment
5.1 You agree to pay us the monthly recurring fee mutually agreed prior this agreement.
5.2 Unless otherwise agreed in writing, payment of the Fees must be made by direct debit or payment in advance in cleared funds scheduled in advance for the payment period. In the event of a failed payment, SEO Shark might suspend all services immediately until such payment is made or direct debit scheduled. To minimise service disruption due to credit card expirations, our billing systems will automatically attempt to update the expiry date of your credit card when necessary to process payments, however we do not guarantee this will be successful. We remind you that it is your responsibility to ensure your credit card details are kept up to date at all times.
5.3 Without prejudice to our other rights and remedies under this agreement, if any Services fees are not paid on or before their due date, we reserve the right, immediately and at our sole discretion, to suspend the provision of Services to you until such payment is made.
5.4 In the event of a failed payment, the Client agrees to allow to be debited from their account an administration fee of $9.90 including GST by the 3rd party debit provider engaged by the Company (for any processing fees). The Client also agrees to pay an additional $100 including GST administrative fee.
5.5 If we have taken action to recover overdue amounts from you, any reasonable costs incurred by us in recovering the debt, including but not limited to any legal expenses and collection agency charges, will be recoverable from you.
5.6 You agree to pay us the fees included in this agreement by any of the following ways:
a) credit card
b) direct debit
c) bank transfer
6.1 This agreement will roll on a monthly basis without notice to the Client unless either party provides a minimum of 30 days written notice prior the renewal date of its intention not to renew or if both parties agree to enter a new contract term for a determined time period.
6.2 Termination of services must be provided by written notice.
6.3 Either party may terminate this Contract immediately by notice in writing to the other party if:
a) the other party commits a material breach which cannot be remedied, of its obligations under the Contract;
b) the other party commits a remediable material breach of its obligations under the Contract but fails to remedy that breach within 14 days of being required to do so in writing by the first party; or
c) an insolvency event, including entering into administration or liquidation, occurs with respect to the other party.
6.4 If we terminate a Service for a reason set out in 6.3, we shall also be entitled to immediately cease any of our other Services to you.
7.1 If you are not the customer, you warrant that you have the power and authority to enter into this Contract on behalf of the customer and will indemnify us for any breach of the Contract by the customer.
7.2 We do not warrant that the Services will be uninterrupted, timely, secure or error free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.
7.3 You agree that we may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. We will use reasonable endeavours to provide you with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.
7.4 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise in to the Contract, are expressly excluded to the maximum extent permitted by law.
7.5 If any goods or services supplied pursuant to this agreement are supplied to you as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation (“the Acts”), you will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which is so conferred by the Acts.
7.6 However, if the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, we limit our liability to:
a) in relation to goods – the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or, the repair of the goods or payment of the cost of having the goods repaired;
b) in relation to services – the supplying of the services again; or the payment of the cost of having the services supplied again as in each case we may elect.
8 Limitation of Liability
8.1 Nothing in the Contract excludes or limits either party’s liability under or in respect of:
a) any indemnity;
b) any fraud or other criminal act;
c) personal injury or death caused by the negligence, breach of contract or other wrongful act or omission of that party; or
d) any other liability that cannot be excluded by law.
8.2 To the maximum extent permitted by applicable law, neither party is liable for:
a) any indirect, special or consequential loss or damage, any loss of profit, revenue or business opportunities, loss of or damage to data or loss of goodwill arising out of or in connection with the Contract (whether or not the loss or damage may reasonably be supposed to have been in the contemplation of the parties as at the date the Contract was formed as a probable result of any act or omission);
b) any loss or damage to the extent such loss or damage is caused or contributed to by the other party’s negligence, breach of contract or other wrongful acts or omissions; or
c) any claim made 6 months or more after the circumstances giving rise to the claim first became known by the claimant or could, with reasonable diligence, have become known by the claimant.
8.3 Each party’s aggregate liability for any loss or damage in connection with the provision of the Service, which is not excluded or limited under this clause is limited to the charges paid by you in respect of the Services for the preceding 12 months to any such claim.
9.1 Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, post or courier to the address of the other party. A notice will be deemed delivered (a) if sent by email, on receipt by the sender of a receipt confirmation; and, (b) if sent by post, two business days following the date of posting.
9.2 Neither party may assign its rights or obligations under this Contract without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that without your consent we may novate this Contract to any of our related bodies corporate or assign this Contract to a successor in connection with any corporate reorganisation, merger, acquisition, or sale of our business or assets to which this Contract relates.
9.3 SEO Shark makes no warranty or representation as to the position your advertisement is placed on a search result page, or the frequency and time of day that your advertisement is displayed; for any specific result on any search engine; or as to the quantity or quality of increased traffic or sales to the Client’s Website.
9.4 If SEO Shark makes any changes to the Client’s website or Google AdWords and social media advertisement or other advertisement or digital networks, the Client remains responsible for checking the content and for correcting it if it is necessary. The Client will be notified of any changes prior any actions performed by SEO Shark.
9.4 We are free to sub-contract any of our obligations under the Contract, but such sub-contracting will not release us from our liabilities under the Contract.
9.5 The Contract is to be interpreted in accordance with the laws of the State of New South Wales, Australia.
9.6 Our failure to act with respect to a breach by you does not waive our right to act with respect to subsequent or similar breaches.
9.7 In consideration of the Company agreeing to provide the Services to the client, the Client agrees and warrants to the Company that it and its related parties shall not engage any Company staff either as an employee or contractor at any time during the term of this Contract or within 12 months of the termination of this Contract.
9.8 The parties covenant that they will not at any time make any disparaging comments or disclose any information or make or publish any statement or do any other thing which may tend materially to harm or prejudice the other party’s reputation or good name (prejudicial information), this includes both parties not making disparaging comments or disclosing prejudicial information about the other through the use of social media, web discussion groups, websites or other like forums. The parties agree to immediately remove any prejudicial information posted online immediately upon written request of the other party.