TERMS OF SERVICE

Last updated 09/08/2017   

Definitions

“Agreement Date” The Agreement Date means the date which is the earlier of the Client accepting the Campaign Particulars by email to the Company or signing a hardcopy of this Agreement enclosing a copy of the Campaign Particulars.

“Campaign Particulars” The Campaign Particulars provided by the Company to the Client setting out the Client, Fee, Key Phrases, Minimum Term, Search Engines and Website.

“Client” The Client, as detailed within the Campaign Particulars and including its representatives.

“Company” The Company, as detailed within the Campaign Particulars shall supply the Services under the terms of this agreement to the Client.

“Key Phrases” The mutually agreed target search phrases for which the Services apply being the Key Phrases, as detailed within the Campaign Particulars.

“Term” The Minimum Term or ‘time-frame’ of the campaign outlined in the Campaign Particulars email.

“Fee” Equal to the Monthy instalments and is exclusive of GST.

Fee/s (one-off)” The Upfront Fee, as detailed within the Campaign Particulars and is exclusive of GST.

“Ranking” The Ranking detailed within the Campaign Particulars.

“Search Engines” The Search Engines, as detailed within the Campaign Particulars.

“Services” The provision of the services to add content to the clients Website and references to the clients business from other websites and social networks for the purpose of attempting to increase the leads and sales generated for the client.

“Term” The period between the Agreement Date and the date this agreement is terminated.

“Website” The location defined by the unique resource locator (URL) being targeted by the campaign being the Website, as detailed within the Campaign Particulars.

“Special Conditions” means any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.

“Penalised” Where a website experiences a negative impact on search rankings imposed by the search engine due to optimisation practices detected that are in breach of the search engines guidelines.

The Services

Where Applicable:

  1. i. SEO Services: The Company agrees to provide the Client with the Services and is authorised to use the Key Phrases to attempt to improve the ranking of and/or positioning of the Website within the Search Engines.
    ii. PPC Services: Pay-Per-Click Advertising (PPC). The company agrees to provide the client with the management of pay-per-click advertising campaigns for the purposes of delivering visitors to websites.
    iii. Linkedin Outreach Services: The Company agrees to provide the Client with the Services and is authorised to use and manage the Client’s personal and professional Linkedin Profile to attempt to create conversations with prospective customers for the Client.
    iii. Social Media Management Services: The client grants access and permission for the company to post on the clients behalf to attempt to build up and audience, followers and engagement to the clients social media account.
Campaign Particulars

2. The Company shall communicate to the Client the Campaign Particulars by email. The Client shall acknowledge and accept the Campaign Particulars by reply email (prior to the campaign commencing) and in doing so enters this Agreement for the provision of the Services. In the event a hard-copy Agreement is being utilised the Client shall acknowledge and accept the Campaign Particulars by signing the Agreement and furnishing the Company with a hard-copy, facsimile or scanned copy (prior to the campaign commencing) and in doing so enters this Agreement for the provision of the Services.

Obligations

3. KEY OBLIGATIONS

The company will:
Work diligently to protect and promote the interests of the Client at all times; Act loyally and faithfully towards the Client in all matters;

Ensure that the Works are complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties;

Ensure that the Works are provided in accordance with the standards outlined in the campaign particulars;

Establish and maintain clear channels of communication at all times with the Client, and promptly answer any questions asked by the Client;

Comply with all the relevant laws and industry standards in respect of providing the work; and Act in accordance with the Client’s reasonable directions while providing the Work.

4. THE CLIENT’S KEY OBLIGATIONS 

The Client will:
Ensure that The company has access to all the:
i Resources, personnel, electronic systems and premises required to provide the Work; and
ii All facilities and materials and information reasonably requested for The company to do its job; Establish and maintain clear channels of communication at all times with The company;

Promptly provide clear, complete and timely instructions and all necessary information and documents to enable The company to provide the Work effectively.

The Client must tell The company immediately if The company have misunderstood the Client or made incorrect assumptions.

The Client must take reasonable care to protect its own interests.

Provide The company with all information, assistance and materials that The company requests from time to time to facilitate the proper and timely performance of the Works.

Promptly provide The company with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services.

Notify The company promptly if the Client considers that any statement made in any document submitted by The company to the Client for Approval is incorrect or misleading in any way, or may give rise to any claim or action for defamation or otherwise against The company.

Client Approval

5.1 The Client shall notify The company in writing of any change regarding who is an Authorised Person during the term of this Agreement.

5.2 The company shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorised Person to provide Approval.

5.3 Approval shall be provided by: a letter, fax or email from an Authorised Person bearing Approval; or oral approval by an Authorised Person, either by phone, VOIP or face-to-face.

5.4 After obtaining Approval of a quote or proposal that form part of the Scope, The company shall submit to the Client for specific Approval as required such draft or proof documents, images or video that require Approval subject to the Scope before dissemination.

5.5 Approval of drafts or proofs shall be taken by The company as authorisation to proceed.

 

Payment of the Fees

6.1 The Client agrees to pay the Company the Upfront Fee and the Ongoing Fee for the Services for the Term of this Agreement. Where applicable the upfront Fee may be paid in instalments as detailed in the campaign particulars.

6.2 After the expiration of the Minimum Term, the Client agrees to pay the Company the Fee for continued service until the Agreement is terminated.

6.3 Payments of the Upfront Fee and Ongoing Fee must be made by direct debit or payment in advance in cleared funds scheduled in advance for the payment period. No work will commence until such payment is made or direct debit scheduled.

Acknowledgement of loss to Company if the Agreement is terminated before the expiry of Term

7. The Client acknowledges and agrees that the guarantee is calculated on the basis of the Services being provided over the Minimum Term and that a disproportionate amount of work is required to be undertaken by the Company for the Client in the provision of the Services during the early part of the Minimum Term. The Client acknowledges that the timing of the labour and assets will be deployed by the Company to provide the Services will occur in the best interests of the Services without direct correlation to the value accrued by the instalment payments of the Upfront Fee. Typically if a guarantee is offered in the campaign, then more value will be delivered in the early stages of the campaign than has been accrued and the Company will incur substantial loss in the event the Client terminates the agreement without cause during the Minimum Term. Such loss is quantified to be the balance of the Upfront Fee.

Payment of Fee when Client terminates Agreement

8. In the event that the Client terminates the Services within the Minimum Term from the Agreement Date the entire outstanding Fee shall be immediately due and payable. The Client agrees that it shall be liable for and shall pay the balance of the Fees remaining within 14 days of termination.

Term of Agreement

9. This Agreement shall continue for the Term from the Agreement Date.

Termination of Agreement

10. Either party may terminate this Agreement by giving each other one (1) month’s written notice after the expiry of the Term from the Agreement Date.

Refund Policy

11. If work is delayed through no fault of the Company or if the Client changes their mind and no longer wants the Company to continue providing the Services (except where a 30 day satisfaction guarantee is offered), refunds will be reviewed on a case-by-case basis and, if approved, subject to a $500 cancellation fee.

Network Changes

12. The Client acknowledges that the performance and success of its Services is dependant on the operators of Search Engines or Social networks who may at any time change processes, procedures and software which may impact on results obtained by the Company in providing the Services during the Term.

13. The client understands that the company will not be liable for any law suits, suspension or limitation of the clients Google or social media accounts arising from activities that are prohibited by the search engine or social platform or its affiliates. If an account is suspended or limited, the Company will take all necessary actions to restore the account back to it’s most recent state.

Guarantee Provision (if applicable)

14. In the event that the Campaign Particulars includes a Guarantee Provision (“Warranty”), the particulars of the guarantee will be detailed in the Campaign Particulars and the Guarantee Terms appended which shall apply in addition to the Terms of Service. The guarantee does not limit any rights the Client has under the Australian Consumer Law.

Statutory Warranty Statement

15. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

Consequential loss

16. To the extent permitted by law and subject to any consumer guarantees the Client has under the Australian Consumer Law, the parties agree that neither party shall be liable to the other for or in relation to any consequential loss (which includes but is not limited to loss of profits, loss of revenue, loss of business opportunities, loss of anticipated business opportunities, loss of anticipated savings and damage to goodwill) which relate to the obligations of the parties or arising from a breach by either party under this agreement.

Restraint on Using Company Staff

17. 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 Agreement or within 12 months of the termination of this Agreement.

Non-disparagement

18. 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.

19. The parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement and the Company would not have entered into this Agreement without the inclusion of this provision.

20. The parties acknowledge and agree that a breach of this non-disparagement provision or disclosure of prejudicial information about the other party as described above will be a material breach of this Agreement and may cause material damage to the other party and that damages may be inadequate compensation for such a breach of this provision and, subject to the court’s discretion, the non-breaching party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of this provision.

Indemnity by Client

21. To the extent permitted by law, the Client is liable for and agrees to indemnify the Company in respect of any loss or liability which the Company suffers, incurs or is liable for as a result of (i) any information given by the Client that is not accurate, up to date or complete or is otherwise misleading; or (ii) any breach of these Terms, or (iii) any damage to the reputation of the Company suffered as a consequence of the Clients breach of the Terms.

Privacy Policy and Direct Marketing

22. The Company complies with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines. The Company’s privacy policy is available from its website or by contacting the Company’s office. The Client consents to and authorises the Company to include the Client’s personal information in a database compiled by the Company for use in direct marketing by the Company. If a Client does not wish to receive marketing material from the Company, the client can opt-out or by contacting the Company. All emails, SMS and newsletters from the Company allow the Client to opt-out of further mailings.

Waiver

23. The Company’s failure to act with respect to a breach by the Client or others does not waive its right to act with respect to subsequent or similar breaches.

Jurisdiction

24. This Agreement is subject to the jurisdiction of the State of Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts of the State of Victoria.

Priority

25. If the terms of this Agreement differ from any other information that the Client has been provided with, including by email or phone, the terms of this agreement apply, unless the Company agrees to otherwise in writing. This Agreement and the Campaign Particulars supersedes all prior representations, promises and warranties.

Assignment

26. The Client must not assign or deal with the whole or any part of its rights or obligations under the Agreement without the prior written consent of the Company. Any purported dealing or representation in breach of this clause is of no effect.

Severance

27. If any provision (or part of it) of the agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of the agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from the agreement and the remaining provisions (and remaining part of the provision) of the agreement are valid and enforceable.

No Merger

28. Where clause is intended to operate after the expiry or termination of this agreement (including but not limited to Non Disparagement, Restraint on Using Company Staff, Indemnity by Client and Exclusivity (if included)), the parties agree that such clauses shall not merge and shall continue to be enforceable.

Exclusivity

29. The Client appoints the Company to act as its exclusive provider of the Services for the Term subject to the following:

30. this exclusivity provision only applies to Services provided in Australia. The Client shall not be prevented from engaging another provider of services similar to the Services if that provider will provide its services outside of the Territory.

31. The Client shall not engage any third party to provide services in Australia that compete with or are similar to the services provided by Online Growth during the Term of this Agreement.

No Affiliation

32. Online Formula reserves the rights to use the results of your campaign for internal marketing campaigns. Quantitative data only – no information on client names or personal information.
33. You understand that we do not have a relationship, affiliation, sponsorship or endorsement by Facebook, Instagram or the LinkedIn Corporation.