Terms of Service Agreement
Orion Media Pty Ltd TAS A.P. Web Solutions
ABN: 68 627 229 252
ACN: 627 229 252
This Terms of Service Agreement (the “Agreement”) sets out the terms and conditions on which you (the “Client”) have engaged A.P. Web Solutions, to perform certain Services as outlined below. This is a legally binding agreement between you and Orion Media Pty Ltd TAS A.P. Web Solutions (hereinafter “A.P. Web Solutions”). By becoming an A.P. Web Solutions Client, you agree to be legally bound by the terms and conditions set forth in this Agreement. The “Effective Date” of this Agreement shall be the date on which you make the first payment for Services to A.P. Web Solutions.
The Terms & Conditions in this agreement apply to any and all parties that have engaged A.P. Web Solutions in any capacity for any of their Services.
- 1.1 A.P. Web Solutions offers digital marketing services specialising in search engine optimisation (hereinafter “SEO”) and Google AdWords (hereinafter “PPC” or “Pay Per Click”).
1.2 SEO Services
A.P. Web Solutions provides SEO services to the Client for mutually agreed keywords and prices as agreed between the parties before the commencement of this Agreement.
1.3 Google AdWords
A.P. Web Solutions provides PPC services to the Client for mutually agreed ads and keywords and the price is as agreed between the parties before the commencement of this Agreement.
1.4 The Client authorises A.P. Web Solutions to appoint agents and/or contractors from time to time to assist in the provision of the Services under this Agreement.
- A.P. Web Solutions’ OBLIGATIONS
2.1 A.P. Web Solutions will provide Services to the Client in accordance with A.P. Web Solutions’ standard policies and procedures. A.P. Web Solutions reserves the right to reject Clients for any other reason, at A.P. Web Solutions’ sole discretion. A.P. Web Solutions will be responsible for all aspects of providing the Services.
2.2 All A.P. Web Solutions rules, policies and operating procedures concerning privacy, pricing, customer service, and all other aspects of the Services will apply, and A.P. Web Solutions may change its rules, policies and operating procedures from time to time in its sole discretion.
- REPORTS AND ACTIVITIES
3.1 A.P. Web Solutions’ SEO link building activities (“off-page optimisation”) are confidential and A.P. Web Solutions does not disclose these activities. However, to provide the Client with feedback & transparency about how their campaigns are progressing with SEO services, A.P. Web Solutions provides access to ranking reports and/or monthly website performance reports.
3.2 Monthly Website Performance Reports are only applicable to Clients whose Proposal explicitly states this as a deliverable.
3.3 Clients who have engaged “one-off” services are not entitled to monthly reporting, meetings, consultations or Support unless explicitly stated in written correspondence.
3.4 Clients who have purchased one of the SEO Setup Packages are not entitled to Website Performance Reports or any other reports except for confirmation of tasks completed as part of the respective Setup package.
3.5 Clients who have engaged A.P. Web Solutions for any Service wherein a Letter of Agreement or Proposal has not been submitted are not entitled to receive any reports or deliverables unless explicitly stated in written correspondence.
3.6 A.P. Web Solutions provides results-based services and all reporting is associated with outcomes that have been achieved as a result of our Services. Reporting also includes expert commentary, ongoing recommendations and consultation. A.P. Web Solutions’ methods of achieving these results are confidential and proprietary. These methods, backend processes and activities are not reportable to the Client. Hours worked on the Client’s project or Services are not reportable to the Client.
- FEES AND PAYMENT
4.1 All fees for Services provided to the Client are due for full payment in advance of the provision of Services.
4.2 For all ongoing Services provided to the Client, the first payment must be made in full prior to the designated Campaign Launch Date, which will be stated in written correspondence between A.P. Web Solutions and the Client. The Campaign Launch date marks the beginning of the Client’s monthly Billing Cycle. Thereafter, all monthly payments must be made in full prior to start of the following Billing Cycle, until the Agreement has been canceled (see 5.1).
4.3 A.P. Web Solutions will issue invoices 7 days in advance of the Client’s Billing Cycle, with 7 days Terms. If the Client’s payment cycles/terms are 15 days, 30 days or any specific monthly date or period, the Client must inform A.P. Web Solutions so that invoices can be issued accordingly. In any circumstance, Client must ensure that full payment is made prior to commencement of the upcoming Billing Cycle (see 4.2).
4.4 A Client can make payments to A.P. Web Solutions by bank transfer or credit card. For payments by credit cards, a surcharge of 2% will apply.
4.5 If the Client provides A.P. Web Solutions with their credit card information, the Client authorises A.P. Web Solutions to automatically charge their credit or debit card for charges that apply to the Client’s account. Recurring charges will be posted to the Client’s credit card until such time that the Client cancels A.P. Web Solutions’ service.
4.6 If the payment method is credit card, A.P. Web Solutions will attempt to charge the Client’s credit card on the monthly anniversary date of the client first ordering services.
4.7 All invoiced fees must be received by 5pm on the stipulated due date on the invoice or an AUD $140 administrative fee will be charged for every 7 day-period.
4.8 Charges not paid by the due date for any reason might result in a suspension of Services until full payment is received.
4.9 The Client acknowledges that any unpaid invoices will be sent to a collection agency after 14 days from the due date.
4.10 Overdue invoices accrue interest (which if not paid will compound on the monthly anniversary) at 10.5% per annum for services provided in South Australia, Northern Territory and the Australian Capital Territory; and 4% above the penalty interest rate prescribed in the relevant state legislation for services provided in other states (and if you are in Tasmania, the relevant Victorian legislation).
4.11 All fees are non-refundable.
- TERM OF AGREEMENT AND CANCELLATION
5.1 This Agreement shall renew at the end of each 30-day period for a successive 30-day term unless either party provides a minimum of 30 days written notice of its intention not to renew or if both parties agree to enter a new contract term for a determined time period.
5.2 Cancellations become effective on the day they are processed by A.P. Web Solutions. The Client will be notified of the cancellation via email.
5.3 Upon acceptance of this Agreement, the Client may not terminate the Agreement without full payment of all invoices issued to them. The Agreement can only be terminated with 30 days written notice.
5.4 Client may not terminate this Agreement before the expiry of the Contract Term stated in the Letter of Agreement. After the Contract Term, the Client may terminate the Agreement with 30 days’ written notice (see 5.1). If Client prefers to terminate the Agreement before the expiry of the Contract Term, Client must pay the Termination Fee, which will be the equivalent to the amount payable for Services for the remainder of the Contract Term.
5.5 This Agreement commences on Acceptance
- WARRANTY DISCLAIMERS
6.1 A.P. Web Solutions expressly disclaims any and all warranties regarding or related to this agreement other than those imposed by statute under the laws of the Commonwealth of Australia or Victoria.
6.2 A.P. Web Solutions makes no warranty or representation:
6.2.1. 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;
6.2.2. for any specific result on any search engine;
6.2.3. as to the quantity or quality of increased traffic or sales to the Client’s Website; or
6.2.4. as to Client Website’s ranking. In particular, the Client acknowledges that the search engines change their ranking algorithms on a regular basis and new sites and competitor sites may be being optimised and submitted continually.
6.3 While Google’s results are displayed on other search engines, A.P. Web Solutions’ Services are aimed at increasing visibility and boosting traffic from Google. Google does change its algorithm and A.P. Web Solutions is not responsible for the client’s rankings due to this algorithm change. A.P. Web Solutions will endeavour to maintain the Client’s Google rankings, but the Client acknowledges that A.P. Web Solutions is not liable for any loss of business due to ranking fluctuations caused by Google algorithm changes. Plus, if the Client has had any previous search engine optimisation work carried out on their website by another organisation, A.P. Web Solutions is not responsible for the Client’s ranking fluctuations that may have been caused by this previous SEO work.6.4 The Client acknowledges and agrees that:
6.4.1. the information available on or through the Client’s Website following the application of the Services is not reviewed, controlled or examined by A.P. Web Solutions in any way before it appears on Client’s Website;
6.4.2. A.P. Web Solutions does not endorse, verify or otherwise certify the contents of any such information; and
6.4.3. The Client remains at all times legally responsible for the content of the Client’s Websites (including in connection with infringement of intellectual property rights of any other party).
6.4.4. A.P. Web Solutions has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
6.4.5. Client will provide Admin-level access to their website.
6.4.6. A.P. Web Solutions retains the right to display graphics and other web content elements as examples of their work in their portfolio and as content features in other projects.
6.4.7. A.P. Web Solutions may add a “Footer Credit Link” on the Client’s website footer, linking to the A.P. Web Solutions website.
6.4.8. A.P. Web Solutions retains the right to suspend Client’s Services if payment has not been received for 15 days into the Client’s Billing Cycle (see 4.2).6.5 A.P. Web Solutions does not warrant or guarantee that:
6.5.1. any information available on or through A.P. Web Solutions will be free of infection by viruses, worms, trojan horses or anything else manifesting contaminating or destructive properties; or
6.5.2. that the functions or services performed by A.P. Web Solutions or a Supplier will be uninterrupted or error-free, or that defects in Services will be corrected.
6.6 The Client remains responsible for the ongoing security and integrity of their own software, website, networks and systems.
6.7 The Client remains the owner of any content created by A.P. Web Solutions on the Client’s social media profiles or the Cleint’s website. The Client remains responsible for all content on the Client’s website or the Client’s social media networks such as Facebook, Twitter, Google Plus, LinkedIn, Instagram, Pinterest and other social media networks belonging to the Client or Google AdWords.
6.7.1 If A.P. Web Solutions makes any changes to the Client’s website or Google AdWords, the Client remains responsible for checking the content and for correcting it if it is necessary.
6.7.2 A.P. Web Solutions does not guarantee any conversion rates or specific numbers of clicks and spend related to SEO, Google AdWords and social media services.
6.7.3 If A.P. Web Solutions makes any posts or uploads content or makes any changes to the Client’s social media networks such us on Facebook, Google Plus and Twitter, LinkedIn, Instagram, Pinterest, the Client remains responsible for checking the content and for correcting it if it is necessary.
6.8 The Client agrees to share the Client’s website URL, keywords used for SEO purposes, website design, and/or social media profile URLs created/or managed by A.P. Web Solutions on A.P. Web Solutions marketing materials (such as websites, proposals, and portfolio examples).
The Client will indemnify A.P. Web Solutions and its customers, suppliers, directors, officers, agents and employees from and against any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable legal fees) arising out of or relating to any breach by the Client of any of the terms of this Agreement.
- LIMITATION OF LIABILITY
A.P. Web Solutions shall not be liable to the Client or any entity or person claiming through or under the Client for any loss of profit or income or other indirect, consequential, incidental, or special damages, whether in an action for contract or tort, in connection with this Agreement, even if A.P. Web Solutions has been advised of the possibility of such damages. In no event shall A.P. Web Solutions’ liability to the Client hereunder exceed the amount paid to A.P. Web Solutions by the Client for the previous one (1) month of services. This limit is cumulative and the existence of more than one claim will not enlarge the limit. The Client acknowledges that these limitations of liability are an essential element of the bargain between the parties and in their absence the terms and conditions of this agreement would be substantially different.The Client accepts that, as a limited liability entity, A.P. Web Solutions has an interest in limiting the personal liability of its employees (and contractors). You agree that you will not bring any claim personally against A.P. Web Solutions’ employees and contractors in respect of any losses you suffer in connection with the Services provided by A.P. Web Solutions.
- UNENFORCEABLE PROVISIONS
If any provision of this Agreement is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this Agreement.
This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof. This Agreement may be amended from time to time in A.P. Web Solutions’ sole discretion. Email communication sent to the Client’s last known email address will be deemed sufficient notice of any such changes in this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties` successors and permitted assigns; provided however, that the Client may not assign this Agreement, in whole or in part, without A.P. Web Solutions’ prior written consent and any assignment by the Client without such consent shall be null and void. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Victoria (Australia) without regard to its rules pertaining to conflict of laws. Any litigation or dispute resolution related to this Agreement shall take place in Australia, and the parties hereby consent to the jurisdiction of the state and federal courts located therein. Except as otherwise expressly set forth herein, any notice required or permitted to be given under this Agreement shall be sufficient if in writing, in the English language, and sent via email. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, that provision will be severed only to the extent minimally necessary, and the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party.