Terms and Conditions

1. Definitions

“ Adwords Schedule” means the Adwords Schedule annexed hereto “Agreement” means the agreement which is governed by these Terms and Conditions “Call Tracking Schedule” means the Call Tracking Schedule attached hereto.

“ Customer” means the person who engages the Services of ROI pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms and Conditions.

“ROI” means ROI.com.au Pty Ltd and Website Revolution Pty Ltd.

“Services” means all services of the type and nature as described in the Schedule.

“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.

“Success Criteria” means the criteria stated in the Agreement to be achieved after the first six months or such other time as agreed between the parties in writing.

“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. Agreement

2.1 The Customer is deemed to have accepted these Terms and Conditions in any of the following ways:

    (a) by executing these Terms and Conditions;
    (b) by providing a written acceptance to these Terms and Conditions by email or by any other form of written communication:
    (c) by placing an order with ROI or instructing ROI to provide the Services after:

      (i) these Terms and Conditions are received by the Customer; or
      (ii) these Terms and Conditions are brought to the notice of the Customer.

2.2 These Terms and Conditions are to be read in conjunction with any other contractual documentation produced by ROI in relation to the Services to be performed by ROI including the Customer proposal, the Adwords Schedule and the Call Tracking Schedule and where there is a conflict between these Terms and Conditions and the other contractual documentation created by ROI the documentation will prevail in the following priority to the extent of such inconsistency:

2.2.1 Adwords Schedule / Call Tracking Schedule;

    2.2.2 Customer proposal;
    2.2.3 Terms and Conditions.

2A. Warranties by Customer

2A.1 The Customer warrants that it is registered proprietor of the domain name of the Website or is authorized to contract on behalf of the registered proprietor of the domain name of the Website, and if the party engaging the Services of ROI 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.

2B. Customer’s Responsibilities

2B.1 The Customer will:

    2B.1.1 disclose to ROI all information in the Customer’s possession relevant to the provision of the Services;
    2B.1.2 comply with all legal requirements and requirements of all relevant statutory authorities relating to the Services;
    2B.1.3 provide ROI with such access to the Website and to provide all necessary assistance to enable ROI to change and modify the Website which is reasonably required to enable ROI to provide Services safely in accordance with the Agreement;
    2B.1.4 make available as soon as is reasonably possible to ROI all material required to complete the Services to the agreed standard within the set deadline(s).
    2B.1.5 notify ROI in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control 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 ROI in writing.

3. Performance levels

3.1 The Customer acknowledges that:

    a. whilst ROI takes all care in implementing its search engine optimisation Services it is unable to guarantee improved rankings in Australia’s major search engines as it does not control the algorithms of the search engines;
    b. ROI 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 ROI search engine optimisation Services is at the Customer’s own risk.

3.2 If pursuant to the Agreement, ROI is to achieve certain rankings for the Customer’s keywords including achieving the Success Criteria, the rankings will be determined solely by the ranking report generated by ROI on the nominated day each month.

3.3 ROI will endeavor 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 time of the Agreement of the web browsing software Microsoft Internet Explorer and to an acceptable level with Mozilla browsers. ROI can offer no guarantees of a correct function with all browser software.

4. Exclusion of Liability of ROI

4.1 To the fullest extent permissible by law, ROI shall 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 ROI or otherwise and where liability cannot be legally excluded, the liability of ROI shall be limited to the cost of supplying the Services again.

4.2 The Customer agrees to indemnify ROI for any third party claim for damages arising out of or in any way connected with the supply of Services by ROI 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 ROI or otherwise.

4.3 The Customer expressly agrees to indemnify and hold harmless ROI, 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 attorneys fees and disbursements and court costs) arising from or in connection with the Customer’s information and the Customer’s use of ROI search engine optimisation services.

4.4 While ever endeavour will be made to ensure that the Website and any scripts or programs are free of errors, ROI cannot accept responsibility for any losses incurred due to malfunction of the Website or any part of it.

4.5 ROI 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.

4.6 Any additions to the Services will be carried out at the discretion of ROI and where no charge is made by ROI for such additions, ROI 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.

4.7 ROI will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.

4.8 ROI 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.

4.9 Provided that ROI implements procedures which are in accordance with the guidelines of search engine operators, it is not be responsible for URLs dropped or excluded by a search engine for any reason.

4.10 ROI 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.

4.11ROI 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.

4.12 ROI does not represent nor warrant that the Customer’s URLs will achieve a favourable position, or any position, within a particular search engine.

4.13 ROI does not warrant nor represent that the use or the results of the use of the materials available through the ROI Services or from third parties will be correct, accurate, timely, reliable or otherwise.

4.14 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside ROI’s control and could result in a breach of security. Accordingly, ROI cannot guarantee that Customer Account Service data information will be free from corruption or piracy. The Customer hereby expressly waives any claim against ROI arising out of the loss of data through corruption, piracy, breach of security or for any other reason that is not based on intentional or grossly negligent actions of ROI.

4.15 In relation to database applications and e-commerce development,
ROI cannot take responsibility for any losses incurred by the use of 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.

4.16 Whilst ROI recommends hosting companies to host websites, no guarantees can be made as to the availability or interruption of this service and ROI 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.

4.17 ROI reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate any free hosting service should the necessity arise.

4.18 ROI will not be liable for any loss suffered by the Customer as a result of any changes made by ROI to the Customer’s website but undertakes to notify the Customer before making any major changes so that the Customer can take such precautionary action as it considers appropriate.

5. Fees and Payments

5.1 ROI’s invoicing schedule is as outlined in the Customer proposal which constitutes a schedule hereto. The Customer is liable for a lump sum payment (“the First Lump Sum Payment”) at the beginning of each 6 months period (or such other period as is agreed in writing between the parties) as stated in the invoicing. However, ROI may agree at its sole option to accept in lieu of the First Lump Sum Payment, equal monthly payments, totaling the amount of the First Lump Sum Payment provided that the Customer is not in breach of the Agreement. If the Customer is in breach of the Agreement, ROI requires payment of the balance of the amount outstanding of the First Lump Sum Payment within 14 days.

5.2 If the Agreement states that after the first 6 months (or such other period as is agreed in writing between the parties), the lump sum for the next period (“the Second Lump Sum Payment”) is payable after the Success Criteria are achieved by ROI, the Second Lump Sum Payment becomes payable within 14 days of the Success Criteria being achieved unless the Agreement has been previously terminated pursuant to the Terms and Conditions. ROI may at its sole option agree to accept in lieu of the Second Lump Sum Payment, equal monthly payments, totaling the amount of the Second Lump Sum Payment. If the Customer is in breach of the balance of the Second Lump Sum Payment is payable within 14 days.

5.3 If at the expiration of six months or such other minimum time agreed in writing between the parties, the Success Criteria are not achieved, the Customer can terminate the Agreement within 30 days provided it is not otherwise in breach of the Agreement (including not being in default in the payment of the accounts of ROI) by serving written notice upon ROI. If the Customer fails to terminate within 30 days, ROI may at its option continue to work free of charge until the Success Criteria are achieved at which time the Second Lump Sum Payment will become due and payable.

5.4 ROI will be released from its obligation to achieve the Success Criteria before being entitled by further lump sum payments in any of the following instances:

    5.4.1 ROI’s search engine optimization work is deleted or changed by the Customer without the consent of ROI;
    5.4.2 The Customer’s website has technical coding or hosting problems not caused by ROI;
    5.4.3 The Customer or its agents or contractors (as the case may be) do not give ROI such reasonable assistance as is requested by ROI;
    5.4.4 Any of ROI’s accounts are not paid by the Customer within 30 days of being rendered.

5.5 For every delay caused by the Customer of 14 days or more in implementation of the search engine optimisation project, ROI’s obligation to achieve Success Criteria will be extended for the period of the delay plus an additional 30 days.

5.6 If additional work is performed by ROI as a result 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, ROI may make a reasonable additional charge for the additional work performed by it.

5.7 In the event that the Customer fails to make payment of ROI invoices, without prejudice to any other rights ROI has under the Terms and Conditions, interest will accrue at the rate of 2% per month on any outstanding amount.

5.8 In the event of default of payment by the Customer, the Customer hereby indemnifies ROI 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 percent or otherwise incurred by ROI or for which ROI has a liability shall be deemed to be part of the indebtedness of the Customer to ROI.

5.9 ROI 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 ROI for the period of 30 days;

5.10 There are no refunds available on services by ROI.

5.11 All ROI charges will be deducted against the credit card the Customer designates in the executed Credit Card Authority such deduction being made 14 days ROI renders the tax invoice on the Customer. The Customer agrees that ROI may charge the credit card for any additional amounts (including taxes and late fees, as applicable) as may be accrued in connection with ROI’s charges.

6 Termination

6.1 If the Customer alleges that ROI is in breach of any of the terms of the Agreement including the Terms and Conditions and ROI is in such breach, the Customer cannot terminate the agreement without giving ROI an opportunity to remedy the alleged breach by serving ROI with a notice specifying in detail the alleged breach and stating that ROI has 14 days to remedy such breach, failing which the Agreement will be terminated.

6.2 The Customer may terminate the Agreement by giving written notice of its intention to do so at least 30 days before the end of each yearly anniversary of the Agreement. If the Customer fails to do so, the Agreement will be renewed for the next 12 months and be governed by the Terms and Conditions until terminated under this clause or under the other provisions of the Agreement.

6.3 At least 30 days before the end of each yearly anniversary of the Agreement, ROI may vary the Terms and Conditions by giving the Customer written notice of such variation (including the fees and charges of ROI) and the variation(s) will take effect if the Agreement is renewed.

6.4 ROI may terminate the Agreement:

(a) immediately by written notice to the Customer where the Customer:

    (i) becomes bankrupt, or insolvent, or becomes subject to external administration; or
    (ii) commits a substantial breach or default under the Agreement; or
    (iii) repudiates the Agreement;

and if ROI does give such notice, the Customer must pay ROI the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.

6.5 If the Agreement is month to month, the Customer may terminate with one month’s written notice, such notice to take effect on the monthly anniversary of the Agreement subsequent to the notice being given.

7 ROI’s rights

7.1 Any remedy of ROI under these Terms and Conditions is in addition to and not in substitution for any remedy which ROI has in law.

7.2 If the Customer unlawfully terminates, ROI can remove data or other matters which it placed on the Website.

7.3 Any scripts, cgi applications or software (unless specifically agreed) written by ROI remain the copyright of ROI and may only be commercially reproduced or resold with the permission of ROI.

8 Privacy

8.1 The Customer agrees that the Customer’s personal data may be used and retained by ROI for the following purposes:

    8.1.1 provision of good & services
    8.1.2 marketing of good & services
    8.1.3 processing any payment instructions

9 Confidentiality

9.1 Notwithstanding that this Agreement shall have terminated or expired, each party agrees to keep in confidence and prevent the unauthorized use or disclosure to any unauthorized person or persons of all Confidential Information which is received under this Agreement and to use such data only for the above stated purpose.

9.2 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 shall be liable for use or disclosure of any such Confidential Information if the same:

    9.2.1 Is in the public domain at the time it is disclosed; or
    9.2.2 Is known to the receiving party at the time of disclosure; or
    9.2.3 Is used or disclosed with the prior, written approval of the disclosing party; or
    9.2.4 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
    9.2.5 Is independently developed by the receiving party; or
    9.2.6 Becomes known to the receiving party from a source other than the disclosing party without a breach of this Agreement by the receiving party.

9.3 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.

10 Miscellaneous

10.1These 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 non exclusive jurisdiction of the courts of Victoria.

10.2If 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.

10.3 ROI 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 ROI.

Adwords Schedule

This schedule provides additional specific terms and conditions for the provision of Adwords Management services by ROI which differ to that of other services supplied by ROI. Where the terms and conditions in this Schedule are in conflict with the Terms and Conditions and/or the Client Proposal, the terms and conditions in this schedule will prevail in accordance with clause 2.2 of the Terms and Conditions.

1. There is a minimum three month term for the supply and charging of Adwords Management services by ROI to the Customer.

2. Fees

    a. The fee for Adwords Management services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
    b. The first monthly fee plus GST is payable on setting up the account and payable monthly thereafter.
    c. Monthly fees will be calculated as the base monthly fee stated in the Customer Proposal plus GST per month or a specific percentage of the total Adwords spend, whichever is greater. Adjustments for amounts greater than the monthly fee will be made at the end of each month and be payable on the next invoice issued to the Customer.

3. ROI will offer a managed Adwords service with the following provisions:

    a. ROI will setup a new Adwords account for the Customer.
    b. ROI will have sole access and retain ownership of the new Adwords account.
    c. ROI will provide the Customer via Google Analytics with access 24/7 to reporting and campaign date.

4. Payment

a. All fees are payable monthly in advance.

b. All fees including Click costs payable to Google shall be paid by the Customer either by:

    i. the provision of a credit card by the Customer to ROI that can be used to pay Google click costs directly to Google up to a defined spending budget as confirmed by the Customer together with the fees of ROI; or
    ii. the Customer providing a direct debit authority the fees of ROI including Google click cost budget for payment directly into the ROI bank account which shall be transacted each month before ROI makes payment to Google. ROI will raise an invoice for the click costs and GST and be responsible for paying Google for the click costs due from the pre deposited amount.

5. Termination of service

After the initial three month term, to terminate the Adwords Management services, the Customer has to give at least one month’s notice in writing of termination and if notice is given during a calendar month, the notice will be deemed to have been given on the last day of that calendar month and the Customer will be liable for the cost of the services to the expiration of the notice period.

    Call Tracking Schedule

    This schedule provides additional specific terms and conditions for the provision of Call Tracking services by ROI which differ to that of other services supplied by ROI. Where the terms and conditions in this Schedule are in conflict with the Terms and Conditions and/or the Client Proposal, the terms and conditions in this schedule will prevail in accordance with clause 2.2 of the Terms and Conditions.

    1. There is a minimum 3 month term for the supply and charging of Call Tracking services by ROI to the Customer.

    2. Disruption of service

      a. ROI will use its best endeavors to ensure call tracking remains online. If calls are lost or reporting stops functioning due to telephony or software errors ROI will not be held responsible for any loss of business of the Customer.
      b. ROI will use its best endeavors to ensure the Customer’s monthly report is sent and received on time and ROI will not be held responsible for any loss arising from delayed receiving of the report.

    3. Implementation

      a. ROI reserves the right to request the developer’s assistance or cancel the implementation of the call tracking product due to overly complex CMS’s/websites.
      b. Due to the nature of the call tracking product the telephony number displayed on the Customer’s website will change with each visitor. However that number will be assigned to the Customer as long as the Customer remains a customer of ROI.

    4. Payment

    All fees are payable monthly in advance either by:

      a. the provision of a credit card by the Customer to ROI that can be used to pay Customer invoices seven days after forwarding invoice to the Customer; or
      b. the Customer providing a direct debit authority directly into the ROI bank account which shall be used to pay Customer invoices seven days after forwarding invoice to the Customer.

    5. Termination of service

    To cancel the Call Tracking service, the Customer must give at least one month’s notice in writing of termination and if notice is given during a calendar month, the notice will be deemed to have been given on the last day of that calendar month and the Customer will be liable for the fees of the services to the expiration of the notice period.

    6. Code Ownership

    Any code deployed on your website is the property of ROI and may not be distributed or re-used elsewhere without its permission.