1. DEFINITIONS AND INTERPRETATION
“Agreement” means the agreement which is governed by these Terms and Conditions.
“Associated Documents” means any documents created by ROI on the reading of which contains terms which relate to the relationship between ROI and its Customer.
“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.
“Period” means the duration of the Agreement which is twelve months unless otherwise stated in the Customer proposal.
“PPC Services” means pay per click services and products such as Google AdWords, Facebook, Bing that ROI may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto (Attachment A).
“ROI” means ROI Growth Agency Pty Ltd which expression shall include the members, officers, employees, affiliates and permitted agents and subcontractors engaged from time to time by ROI to provide the services.
“Services” means all services of the type and nature as described in these Terms and Conditions, Customer Proposal, Schedule to Customer Proposal and Associated Documents provided by ROI to the Customer.
“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 set out in this document.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services (Attachment B).
(a) The singular includes the plural and vice versa
(b) References to a person includes a corporation, firm, company, partnership, joint venture, unincorporated body of persons or individual whether or not a separate legal entity.
2.1 The Customer is deemed to have accepted the Terms and Conditions by placing an order with ROI or instructing ROI to provide the Services after:
(a) ROI’s Terms and Conditions received by the Customer; or
(b) The availability of ROI’s Terms and Conditions on ROI’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer will provide in a timely fashion all information, access to third parties as reasonably required and access to Website to enable ROI to change and modify the Website to enable ROI to provide the Services.
3.2 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract on behalf of the registered proprietor and both the Customer and the registered proprietor are jointly and severally liable for the obligations of the Customer under the Terms and Conditions.
3.3 The Customer will 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 the Agreement unless released in writing by ROI.
4. PERFORMANCE LEVELS
4.1 ROI will provide its Services on information supplied to it about the Customer’s business. However the Customer acknowledges that ROI cannot guarantee an improvement in rankings, traffic, sales, business activity, profit or any other form of improvement. ROI cannot accept responsibility for any loss or damage, including consequential loss, arising from its Services.
4.2 ROI will endeavour to ensure that any development/design site or application will function correctly on the server which it is initially installed on when viewed with the latest version of the web browsing software Microsoft Internet Explorer or Mozilla browsers or Chrome browsers. ROI can offer no guarantees of the correct functioning with all browsers.
5.1 ROI shall not be liable to the Customer for any direct, indirect, economic, special, punitive, incidental or consequential loss or damage (whether for loss of profits, loss of business, revenue, data, goodwill or otherwise) arising suffered by the Customer which arises out of or in connection with the provision of the Services or any liability of the Customer.
5.2 The entire financial liability of ROI (including any liability for the acts or omissions of its members, officers, employees, affiliates and permitted agents and subcontractors ) to the Customer in connection with provision of Services in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clause 5.1 above or otherwise) whether such claim arises in contract, tort, misrepresentation or otherwise shall not exceed a sum equal to the fees paid for the Services.
5.3 ROI accepts no duty of care or other liability in respect of its Services to any person other than the Customer.
5.4 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 and ROI 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. INTELLECTUAL PROPERTY AND COPYRIGHT
6.1 Intellectual property rights in all documentation, systems, design, materials, methodologies and processes created in course of providing Services to the Customer shall remain the property of ROI.
6.2 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.
6.3 At the conclusion of ROI services to the Customer, the Customer may request ROI to hand-over customer data it has in its possession; however ROI will not release access to the account and set-up which remains the intellectual property of ROI.
7. FEES AND PAYMENT
7.1 Unless specifically agreed otherwise, upon acceptance of the Terms and Conditions the Customer is liable to pay the total amount in advance for ROI’s Services.
7.2 In the event that the Customer fails to make payment of ROI invoices, without prejudice to any other rights ROI has, ROI retains the right to charge interest at the rate of 2% per month accruing on a daily basis on any outstanding amount and the Customer indemnifies ROI against all costs and expenses arising from such default including legal costs.
7.3 All ROI charges will be deducted against the credit card or account the Customer designates in the executed Credit Card Authority or Direct Debit authority such deduction being made 7 days from issue of a tax invoice to the Customer. The Customer agrees that ROI may charge the credit card or direct debit for any additional amounts (including taxes and late fees, as applicable) as may be accrued in connection with ROI’s charges.
7.4 Goods & services tax (GST) at the prevailing rate will be added to and forms part of our fees.
8.1 To pause a service requires acknowledgement and approval by a senior manager, other than the account manager, at ROI.
8.2 A pause in services by ROI will be no longer than a 2 month period unless agreed otherwise.
8.3 All other Terms and Conditions of this agreement remain the same.
9.1 Subject to clause 9.2, both ROI and the Customer may each terminate the Agreement at the expiration of the Period by giving written notice of its intention to do so at least 30 days before the end of the Period. If neither party gives notice of intention to terminate, the Agreement will continue from month to month until terminated by either party on one month’s 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.
9.2 ROI may give the Customer written notice of variation of the Agreement (including the fees and charges of ROI) and the variation(s) will take effect 14 days after such notice is given but never any earlier than the expiration of the Period of the Agreement. If notice of variation is given, the Customer may terminate the Agreement by giving written notice to ROI within 14 days of receiving notice of variation, such termination to take effect when the variation would have taken effect save for the termination by the Customer. The Customer must pay ROI the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.3 ROI 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; 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.
9.4 ROI retains it right over all things pertaining to your matter until all invoices have been paid in full.
10.1 The Customer agrees that the Customer’s personal data may be used and retained by ROI for the purposes of both provision and marketing of good & services, and also for processing of payment instructions.
11.1 ROI will not be prevented or restricted from providing services to other clients including but not limited to your competitors or other parties whose interests may be in conflict with yours, provided we do not disclose your confidential information.
12.1 The Customer authorises ROI and ROI is able to communicate electronically using electronic mail.
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 non-exclusive 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 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.
14. FORCE MAJEURE
14.1 ROI will not be liable to the Customer for any delay or failure to fulfil its obligation to the extent that such delay or failure is caused beyond its control, including but not limited to, fire floods, natural disasters, terrorism, wars, strikes, lockouts and industrial disputes.
ATTACHMENT A: PPC TERMS
This schedule provides additional specific terms and conditions for the provision of PPC Services by ROI. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail.
1.1 The duration of the Agreement is twelve months unless otherwise stated in the Customer proposal.
2.1 The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2.2 The first monthly fee plus GST is payable on setting up the account and payable monthly thereafter.
2.3 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.
3.1 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.
(d) ROI will endeavour to spend the predetermined Google click cost budget each month. ROI will not be liable for any under or over spend.
(e) The Customer is liable for all AdWords charges generated from the AdWords account.
4.1 All fees are payable monthly in advance.
4.2 All fees including Click costs payable to Google shall be paid by the Customer either by:
(a) 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
(b) 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.
5.1 Refer Section 9 of the Terms and Conditions.
ATTACHMENT B: WEBSITE TERMS
ROI reserves the right to recover additional costs for any work carried out under the following circumstances:
1.1 If the scope changes to the extent that substantially alters the specifications in the proposal including but not limited to:
(a) Additional pages and features
(b) Changes to functionality
(c) Uploading of additional products, images & content (d) Professional photography and video content
(e) Generation and editing of content (f) SEO Migration
(g) Plugin updates, site core updates and security updates.
1.2 Subsequent changes to appearance & layout after finalised and approved by the customer
1.3 Delays by the customer in providing ROI with required information and content
1.4 After the website is handed over to the customer any further work carried out by ROI at the customer’s request
1.5 Issues identified 30 days after the website going live which are unlikely to be due to the original site coding and or design
ROI’s rate for additional work will be charged at $200 per hour. ROI can provide a monthly costing for any ongoing site maintenance i.e plugin and security updates.