“Agreement” means the contract that exists between the Customer and SEO Consulting whereby SEO Consulting agrees to provide the Customer with the services set out in the selected Services for the Services Fee, with such contract comprising these Terms and Conditions.
“Application” means an application for Services forwarded to SEO Consulting for acceptance.
“Customer” means a person or entity who completes an application for a service package offered by SEO Consulting and enters into an Agreement with SEO Consulting to provide on or more Services.
“Day” means business day.
“SEO Consulting” is a business name (ABN 44 168 758 263) and means Bodcity Pty Ltd (ACN 168758 263).
“Services” means all services of the type and nature as described in the schedule for each package.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions of the Agreement.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services.
2.1 The Customer is deemed to have accepted these Terms and Conditions if they:
(a) Tick the box in the Application acknowledging that they have read, understood and agree to be bound by these Terms and Conditions;
(b) Provide a written acceptance to these Terms and Conditions by email or by any other form of written communication:
(c) Accept by conduct, that is, they place an order with SEO Consulting by any means or otherwise instruct SEO Consulting to provide the Services:
2.2 These Terms and Conditions are to be read in conjunction with any other contractual documentation produced by SEO Consulting in relation to the Services including the Customer Application.
2.3 SEO Consulting is deemed to have accepted these Terms and Conditions on receipt of the Service Fees as cleared funds in its nominated bank account.
2.4 The date of the Agreement is the date on which SEO Consulting receipts the Service Fees in its nominated bank account as cleared funds.
3. WARRANTIES BY CUSTOMER
3.1 The Customer warrants that it is the registered proprietor of the domain name of the Website or is authorised to contract on behalf of the registered proprietor of the domain name of the Website, and if the party engaging the Services of SEO Consulting and the proprietor of the domain name of the Website are different persons, both are deemed to be the Customer in these Terms and Conditions and are jointly and severally liable for the obligations of the Customer.
3.2 The Customer further warrants that on request it will provide SEO Consulting with all documents it may require evidencing such ownership.
4. CUSTOMER’S RESPONSIBILITIES
4.1 The Customer will:
(a) Disclose to SEO Consulting all information in the Customer’s possession relevant to the provision of the Services;
(b) Comply with all legal requirements and requirements of all relevant statutory authorities relating to the Services;
(c) Provide SEO Consulting with access to the Website and to provide all necessary assistance to enable SEO Consulting to provide Services safely in accordance with the Agreement;
(d) Make available as soon as is reasonably possible to SEO Consulting all material requested by SEO Consulting and or required to complete the Services.
(e) Notify SEO Consulting of the Customer’s business or change of the registered proprietor of the domain name of the Website the Customer will remain liable under this Agreement unless released by SEO Consulting in writing.
5. PERFORMANCE LEVELS
5.1 The Customer acknowledges that:
(a) Whilst SEO Consulting takes all care in implementing its search engine optimisation Services it is unable to guarantee improved rankings in major search engines as it does not control the algorithms of the search engines;
(b) SEO Consulting makes no warranty that a search engine optimisation Services will generate any increase in sales, business activity, profits or any other form of improvement for the Customer’s business or any other purpose;
(c) The use of the SEO Consulting search engine optimisation Services is undertaken at the Customer’s own risk.
5.2 SEO Consulting will endeavour to ensure that any development/design site or application will function correctly on the server which it is initially installed on and that it will function correctly when viewed with the latest version at the date of the Agreement of the web browsing software Microsoft Internet Explorer and to an acceptable level with Mozilla browsers. SEO Consulting can offer no guarantees of a correct function with all browser software.
6. EXCLUSION OF LIABILITY OF SEO Consulting
6.1 To the fullest extent permissible by law, SEO Consulting will not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of SEO Consulting or otherwise and where liability cannot be legally excluded, the liability of SEO Consulting shall be limited to the cost of supplying the Services again.
6.2 The Customer agrees to indemnify SEO Consulting for any third party claim for damages arising out of or in any way connected with the supply of Services by SEO Consulting to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of SEO Consulting or otherwise.
6.3 The Customer expressly agrees to indemnify and hold harmless SEO Consulting, its subsidiaries, affiliates, officers, agents and partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable legal fees, disbursements and court costs) arising from or in connection with the Customer’s information and the Customer’s use of SEO Consulting search engine optimisation services.
6.4 Whilst every endeavour will be made to ensure that the Website and any scripts or programs are free of errors, SEO Consulting cannot accept responsibility for any losses incurred due to malfunction of the Website or any part of it.
6.5 SEO Consulting cannot take responsibility for any copyright infringements and any other infringements of intellectual property rights including but not limited to patents and confidential information caused by materials submitted by the Customer. It reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
6.6 Any additions to the Services will be carried out at the discretion of SEO Consulting and where no charge is made by SEO Consulting for such additions, SEO Consulting accept no responsibility to ensure such additions are error free and reserves the right to charge an appropriate amount for any correction to the additions.
6.7 SEO Consulting will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
6.8 SEO Consulting will not be liable or become involved in any disputes between the registered proprietor of the domain name and its customers and cannot be held responsible for any wrongdoing on the part of a site owner.
6.9 SEO Consulting shall not be responsible for delays or failure of performance resulting from Internet Service Provider delivery problems or failure, or any communication or delivery problems associated with Customer’s receipt of the account service data.
6.10 SEO Consulting shall not be responsible for acts or causes beyond its control, including but not limited to: acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters.
6.11 Solution A Design does not represent nor warrant that the Customer’s URLs will achieve a favourable position, or any position, within a search engine.
6.12 SEO Consulting does not warrant nor represent that the use or the results of the use of the materials available through the SEO Consulting Services or from third parties will be correct, accurate, timely, reliable or otherwise.
6.13 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside SEO Consulting’s control and could result in a breach of security. Accordingly, SEO Consulting cannot guarantee that Customer data will be free from corruption or piracy. The Customer hereby expressly waives any claim against SEO Consulting arising out of the loss of data through corruption, piracy, breach of security or for any other reason.
6.14 In relation to database applications and e-commerce development, SEO Consulting cannot take responsibility for any losses incurred using any software created for the Customer. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the Customer in ensuring that all software is functioning correctly before use.
6.15 Whilst SEO Consulting recommends hosting companies to host websites, no guarantees can be made as to the availability or interruption of this service and SEO Consulting cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss.
6.16 SEO Consulting reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and to terminate any free hosting service should the necessity arise.
6.17 SEO Consulting will not be liable for any loss suffered by the Customer because of any changes made by SEO Consulting to the Customer’s website but undertakes to notify the Customer before making any major changes, such as a total redesign so that the Customer can take such precautionary action as it considers appropriate.
7. SERVICE FEES AND PAYMENTS
7.1 SEO Consulting’s are payable monthly in advance and payment options are detailed on the SEO Consulting site.
7.2 If the Customer fails to pay the Service Fees as required SEO Consulting may at its sole discretion continue to provide the Services for up to 30 days without suspending or terminating the Agreement.
7.3 If additional work is performed by SEO Consulting because of changes requested by the Customer which were not contemplated by the parties at the date of the Agreement or which resulted from a default by the Customer, SEO Consulting may make a reasonable additional charge for the additional work performed by it.
7.4 In the event that the Customer fails to make payment of SEO Consulting invoices, without prejudice to any other rights SEO Consulting has under the Terms and Conditions, interest will accrue at the rate of 2 per centum per month on any outstanding amount.
7.5 In the event of default of payment by the Customer, the Customer hereby indemnifies SEO Consulting against all costs and expenses however arising from such default and further all debt recovery costs including legal costs on a solicitor/own client basis and any mercantile agent’s cost at a commission rate of not exceeding 18 per centum per annum or otherwise incurred by SEO Consulting or for which SEO Consulting has a liability shall be deemed to be part of the indebtedness of the Customer to SEO Consulting.
7.6 SEO Consulting has the right to suspend the provision of the Services in the event of non-payment for the same by the Customer of accounts rendered by SEO Consulting for the period of 30 days;
7.7 Due to the nature of the Services there are no refunds available on Service Fees paid to SEO Consulting.
7.8 All SEO Consulting charges are to be paid via the PayPal shopping cart option on the site or otherwise by prior written arrangement with SEO Consulting.
8.1 If the Customer alleges that SEO Consulting is in breach of any of the terms of the Agreement including the Terms and Conditions and SEO Consulting is in such breach, the Customer cannot terminate the agreement without first giving SEO Consulting an opportunity to remedy the alleged breach by serving SEO Consulting with a notice specifying in detail the alleged breach and stating that SEO Consulting has 14 days to remedy such breach, failing which the Agreement will be terminated.
8.2 The Customer may terminate the Agreement by giving written notice of its intention to do so at least 5 days before the end of the month, or Service Agreement period. If the Customer fails to do so, the Agreement will be renewed for the next months or Agreement period and be governed by the Terms and Conditions until terminated under this clause or under the other provisions of the Agreement.
8.3 SEO Consulting may vary the Terms and Conditions by giving the Customer not less than 5 days written notice of such variation (including the fees and charges of SEO Consulting) and the variation(s) will take effect if the Agreement is renewed or no objection is otherwise raised.
8.4 SEO Consulting may terminate the Agreement immediately by written notice to the Customer where the Customer:
(a) Becomes bankrupt, or insolvent, or becomes subject to external administration; or
(b) Commits a substantial breach or default under the Agreement; or
(c) Repudiates the Agreement;
8.5 Where SEO Consulting issues notice in accordance with 8.4, the Customer must immediately pay SEO Consulting the sum of all monies due and payable but unpaid.
9. SEO CONSULTING’S RIGHTS
9.1 Any remedy of SEO Consulting under these Terms and Conditions is in addition to and not in substitution for any remedy which SEO Consulting has in law.
9.2 If the Customer unlawfully terminates, SEO Consulting at its sole discretion may remove data which it placed on the Website.
9.3 Any scripts, CGI applications or software (unless specifically agreed) written by SEO Consulting remain the intellectual property of SEO Consulting and are subject to copyright and may only be commercially reproduced or resold with the express written permission of SEO Consulting.
(a) Provision of good & services;
(b) Marketing of good & services; and
(c) Processing any payment instructions.
11.1 Notwithstanding that this Agreement shall have terminated or expired, each party agrees to keep in confidence and prevent the unauthorised use or disclosure to any unauthorised person or persons of all Confidential Information which is received under this Agreement and to use such data only for the above stated purpose.
11.2 Confidential Information shall include information disclosed orally only if identified as proprietary information at the time of the first oral disclosure and reduced to writing and so designated within thirty (30) days thereof. Neither party will be liable for use or disclosure of any such Confidential Information if the same:
(a) is in the public domain at the time it is disclosed; or
(b) is known to the receiving party at the time of disclosure; or
(c) is used or disclosed with the prior, written approval of the disclosing party; or
(d) is used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to this Agreement; or
(e) Is independently developed by the receiving party; or
(f) Becomes known to the receiving party from a source other than the disclosing party without a breach of this Agreement by the receiving party.
11.3 In maintaining the confidentiality of Confidential Information received hereunder, each party shall exercise the same degree of care that the receiving party takes to safeguard its own proprietary information.
12 GENERAL DISCLAIMER
12.1 Whilst every effort is made by SEO Consulting to verify the information and articles it publishes on its site the Customer acknowledges that the information is intended to be general in nature only and may not be current at the time of its consumption or otherwise may not be suitable to their specific needs or circumstances of the Customer. No liability is accepted by SEO Consulting for the use or misuse of this information and any reliance is undertaken at the sole risk of the Customer.
13.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of Victoria and the parties hereto agree to submit to the jurisdiction of the courts of Victoria.
13.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
13.3 SEO Consulting can assign it rights under the Agreement upon the provision of 30 days written notice to the Customer. The Customer cannot assign its rights under the Agreement without the express written consent of SEO Consulting.
13.4 Where a dispute arises between the parties each part has an obligation to mediate that dispute before applying to the appropriate Court for a determination.