TERMS OF SERVICE
1. DESCRIPTION OF SERVICES
We will provide an ongoing set of online services including website design, copy and editorial development, search engine optimisation and website updates as described in the Proposal you have received for each specific service.
2. LIMITATIONS OF SCOPE
We will not be responsible for work that is beyond the scope of services set forth in the subscription plan in effect at the time you initiates the service. Any changes to the scope of services will not be effective unless approved by both parties.
3. MANAGEMENT RESPONSIBILITY
We will provide certain tools, methods and resources to you that are intended to help you grow and build your business. However, you are fully and exclusively responsible for your own business performance and satisfaction. In addition, you have full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to your business, including without limitation, data held by you and your clients, information provided by you to your clients and/or other third parties and any safeguarding and security measures that may be required. We may participate in implementing needed systems services and functions, but you are solely responsible for the final outcomes, actions taken and results produced.
All content produced by us within the scope of Services including software and web code, contents, graphics and design, or material developed or licensed by us for you as part of the Services is copyrighted by us and remains the exclusive property of the Agency. Upon termination of this Agreement copyrights shall remain with the Agency. After twelve months of service and full payment if you choose to cancel this agreement per the conditions in Section 6 below all our copyrighted content, EXCEPT software, web code, WordPress themes and plug-ins, PSD files and other files or code used to create the your website and newsletter can be used indefinitely by you for you company website, newsletter and other marketing collateral. This use will be restricted to the your company use only and you do not have any rights to resell, license or otherwise allow 3rd parties use of the content.
In the event that we cease business operations and providing the services described in this agreement, all Agency copyrighted content, EXCEPT software, web code, WordPress themes and plug-ins, PSD files and other files or code used to create your website and newsletter can be used indefinitely by you for your company website, newsletter and other marketing collateral. This use will be restricted to your company use only and you do not have any rights to resell, license or otherwise allow 3rd parties use of the content.
5. OUR PORTFOLIO
You hereby acknowledge and agree that we shall have the right to use your business name, including your Web Site, for reference as a customer of our services for referral and marketing purposes.
Except for reasons of non-performance by either party, this Agreement shall remain in effect until formally terminated in writing by either party. We will start subscription billing to you beginning the date (“Renewal Date”) you agree to these terms of services and it shall automatically renew for subsequent one (1) month periods until it is formally terminated in writing or email. Termination of this Agreement requires written or email notice delivered thirty (30) days prior to the desired date of termination. A repeated failure to make payment by date due during any period gives us the option for immediate termination. Upon the expiration or termination of this Agreement for non-payment or non-performance by you, (i) all licenses granted by us to you hereunder shall automatically terminate and you shall immediately cease your use of the licensed content and other provided marketing collateral, and (ii) your right to the Services afforded to our Customer’s shall automatically terminate.
Once your website subscription has been cancelled, we’ll maintain a copy of your website on an archived server for 3 years. All website files associated with the cancelled website will be permanently deleted after that 3 year period has ended.
7. PAYMENT FOR SERVICES
You will pay monthly fees to us for a subscription to Services as described in our plan in effect at the time of this agreement and for the license to use the our web services, software and licensed content in conjunction with these services. Payment will be made by automatic credit card transactions. Invoices will include monthly subscription fees and any additional fees for elective or other additional Services that have been purchased by you. Invoices will be issued and automatic transactions processed on the Renewal Date as described in Section 6 above. We reserve the right to assess and collect late-payment charges of 1.5% per month on past due balances.
We shall provide our services and meet our obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable standards in our industry, and will provide a standard of care based on commercially reasonable efforts. The services and all products provided as part of the services are provided “as is” and we disclaim, and you waive, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guaranty or representation related to the services. We do not warrant that the software or any products or services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall the Agency be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use the Website. The Agency shall not be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
9. LIMITATIONS OF LIABILITY
Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of us, our liability to pay damages for any losses incurred by client as a result of breach of contract, negligence or other tort committed by us, regardless of the theory of liability asserted, is limited to no more than the total amount of the most recent three (3) months of base fees paid under this agreement. In any case, we and our licensors will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages. In addition, we shall have no liability to you arising from or relating to any third party hardware, software, information or materials. We are also not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though we will attempt to prevent or minimise exposure to such risks.
Subject to the provisions hereof, you shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against us and our licensors arising from products or services related to this Agreement. Conversely, we shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against you arising from the gross negligence or intentional misconduct of the Agency.
11. GOVERNING LAW
The laws of Victoria, Australia govern this Agreement and each party submits to the exclusive jurisdiction of the courts of Victoria.