Terms of Service Agreement
ABN: 69 398 577 008
This Terms of Service Agreement (the “Agreement”) sets out the terms and conditions on which you (the “Client”) have engaged JRGD Webdesign, to perform certain Services as outlined below. This is a legally binding agreement between you and Justine Reilly Graphic Design - JRGD (hereinafter “JRGD Webdesign”). By becoming an JRGD Webdesign 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 JRGD Webdesign.
1.1 JRGD Webdesign offers internet marketing services that include, but are not limited to: search engine optimisation (hereinafter “SEO”), campaigns for Google AdWords (hereinafter “PPC” or “Pay Per Click”), Facebook and other social media advertising, link building, social media management and web design/development.
1.2 SEO Services
JRGD Webdesign 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
JRGD Webdesign 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 Social media services
JRGD Webdesign provides social media services to the Client for mutually agreed social media networks (the Client’s profile pages) for a mutually agreed price as agreed between the parties before the commencement of this Agreement.
1.5 Website design and development
JRGD Webdesign provides website design and/ or development to the Client for a mutually agreed design and website structure at the price agreed between the parties before the commencement of this Agreement.
1.6 The Client authorises JRGD Webdesign to appoint agents and or contractors from time to time to assist in the provision of the Services under this Agreement.
2. JRGD Webdesign’s OBLIGATIONS
2.1 JRGD Webdesign will provide Services to the Client in accordance with JRGD Webdesign`s standard policies and procedures. JRGD Webdesign reserves the right to reject Clients for any other reason, at JRGD Webdesign`s sole discretion. JRGD Webdesign will be responsible for all aspects of providing the Services.
2.2 All JRGD Webdesign rules, policies and operating procedures concerning privacy, pricing, customer service, and all other aspects of the Services will apply, and JRGD Webdesign may change its rules, policies and operating procedures from time to time in its sole discretion.
3. SEO REPORTS AND ACTIVITIES
3.1 To provide a client with feedback about how a domain is progressing with SEO services, JRGD Webdesign provides access to a dashboard at the following URL: https://reports.seoshark.com.au with reports and all activities.
4. FEES AND PAYMENT
4.1 All fees for Services provided to the Client are due and payable in full, in advance of the provision of Services.
4.2 A Client can make payments to JRGD Webdesign by credit card, PayPal or bank transfer.
4.3 If the Client provides JRGD Webdesign with their credit card information, the Client authorises JRGD Webdesign 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 JRGD Webdesign’s service.
4.4 If the payment method is credit card, JRGD Webdesign will attempt to charge the Client’s credit card on the monthly anniversary date of the client first ordering services.
4.5 All invoiced fees must be received by 5pm on the stipulated due date on the invoice or an AUD200 administrative fee will be charged for each 7 days.
4.6 Charges not paid by the due date for any reason might result in a suspension of Services until full payment is received.
4.7 The Client acknowledges that any unpaid invoices will be sent to a collection agency after 2 months.
4.8 Except in the case of a material breach of this agreement by JRGD Webdesign, JRGD Webdesign does not issue refunds of any fees for any reason.
5. 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 14 working 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 carry a 30 day cancellation period which is chargeable and becomes effective on the day they are processed by JRGD Webdesign. The Client will be notified of the cancellation via email.
6. WARRANTY DISCLAIMERS
6.1 JRGD Webdesign 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 New South Wales.
6.2 JRGD Webdesign 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, JRGD Webdesign’s Services are aimed at increasing visibility and boosting traffic from Google. Google does change its algorithm and JRGD Webdesign is not responsible for the client’s rankings due to this algorithm change. JRGD Webdesign will endeavour to maintain the Client’s Google rankings, but the Client acknowledges that JRGD Webdesign 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 SEO organisation, JRGD Webdesign 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 JRGD Webdesign in any way before it appears on Client’s Website;
6.4.2. JRGD Webdesign 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).
6.5 JRGD Webdesign does not warrant or guarantee that:
6.5.1. any information available on or through JRGD Webdesign 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 JRGD Webdesign 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 JRGD Webdesign 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 JRGD Webdesign 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 JRGD Webdesign 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 JRGD Webdesign 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, Pinteres, the Client remains responsible for checking the content and for correcting it if it is necessary.
6.7.4 By providing access to the Client’s social media networks, the Client allows JRGD Webdesign to read and respond to any messages or posts made on the Client’s social media networks.
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 JRGD Webdesign on JRGD Webdesign marketing materials (such as websites, proposals, and portfolio examples), unless the Client instructs otherwise.
The Client will indemnify JRGD Webdesign 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.
8. LIMITATION OF LIABILITY
JRGD Webdesign 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 JRGD Webdesign has been advised of the possibility of such damages. In no event shall JRGD Webdesign`s liability to the Client hereunder exceed the amount paid to JRGD Webdesign 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.
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 JRGD Webdesign’s sole discretion. An 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 JRGD Webdesign`s 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 New South Wales (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 Australia Post Certified Mail, return receipt requested. 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.
11. REFUNDS & CHARGEBACKS
We do not refund partial monthly fees to accounts. All website account cancellation requests must be submitted 30 days before the next billing cycle. Only the authorised account holder or an authorised contact may cancel the account. Authorised contacts are appointed only by the account holder. In the event of cancellation, client will automatically be billed for the then-current calendar month. A cancellation fee is calculated as a pro-rata release fee of Credit card or PayPal chargebacks will incur a fee of $100 to be reinstated. Services that incur chargebacks will be permanently deleted and purged from our servers, and domain name ownership transferred to JRGD. Clients may only cancel a Service via the Members Area.
12. FAILURE TO PAY
JRGD may temporarily deny Service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
13. SECURITY & SOFTWARE
You acknowledge that the use of software such as WordPress and other similar types of third party open source software can represent potential risk, and as such requires You to play a part in maintaining Your chosen website software. Therefore, You agree to take steps to ensure You keep Your or their chosen software updated to the latest release and security patched where applicable. You agree to utilise and implement security measures as per advice from the developers/publishers of the third party software installed onto Your Service. You agree that under no circumstances shall JRGD be liable for any damages, loss or costs arising from or associated with the result of any third party or otherwise software You have chosen to install into a hosting account becoming compromised (hacked) that may result in the destruction of data on the server whether this is the result of Your chosen software becoming compromised or for any other reason whatsoever. You explicitly agree not to hold JRGD responsible or liable in any manner whatsoever for any damages, loss or costs arising from or associated with any type of data becoming deleted and/or unrecoverable due to any type of compromise or hack irrespective of how the compromise or hack occurred. Account compromise by a third party or otherwise, including but not limited to: stolen passwords, phishing, redirections, meta-refresh scripts or defacement of an individual website is not the responsibility of JRGD. JRGD has the responsibility to notify the customer utilising the information provided on the Account in the Members Area and suspend the account at the earliest convenience, at the sole discretion of JRGD repeat offenders which have openly had an account compromised several times may be charged a service administration fee.
14. TERMINATION & SUSPENSION
JRGD reserves the right, in our sole discretion, to terminate or suspend your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Agreements or any law, if you suffer an Insolvency Event, we are required to do so by law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination or suspension may result in the forfeiture and destruction of information associated with your Account. JRGD may provide prior notice of the intent to terminate or suspend Services to you if such notice will not, in our discretion, run counter to the intents and purposes of these Agreements. Any fees paid hereunder are non-refundable and any fees owed to us before such termination or suspension shall be immediately due and payable, including any liabilities that may have been incurred prior to termination or suspension such as our costs for collection (including its legal fees) of any such charges or other liabilities. Upon termination, any and all rights granted to you by this Agreement will immediately be terminated, and you must promptly discontinue all use of the Services. Upon reactivation of your Account following a suspension, we may require you to pay us in full for all outstanding amounts and pay a reactivation fee at our discretion. If you wish to terminate your Account, you may do so by providing 30 days notice in writing to firstname.lastname@example.org. We are under no obligation to provide you with a copy of your Data or User Content if we terminate or suspend all or part of your Services. Nor are we under any obligation to refund you amounts automatically debited from your PayPal account after your Service has been terminated. It is your responsibility to terminate any PayPal subscriptions. If we are required to refund you any payments received, then we may charge you an administration fee for doing so by deducting that amount from the amount to be refunded to you. All provisions of these Agreements which by their nature should survive termination shall survive termination or suspension, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability. JRGD websites are subscription based products and as such incur a monthly subscription fee. Upon client cancelling the service we reserve the right at our sole discretion to provide you with a copy of your website content and database, in exported xml format. This will contain your website text and database but does not include any software, site plugins, add-ons, customisations, themes or templates which remain the licensed property of JRGD. We reserve the right at our sole discretion to cancel your service. If we choose to cancel your service you will receive email notification that your service is being cancelled and will be provided 30 days to move your service to an alternate provider. All data and files relative to Your Service from terminated and cancelled accounts are immediately deleted and purged from our servers. This includes any and all backups. Please make sure to back up all Your files and data before cancelling Your Service.
Some businesses in time require a standalone website on their own servers for third party development access. If necessary a release/buy-out fee applies for full purchase of site, all UI design & web development as well as all site themes, add ons and plug ins and your website to be removed from JRGD hosted network and redeveloped into a stand-alone corporate website which can be supplied to you the Client as a tar.zip file for provision to your new hosting provider. Release fee is $2750 incl.gst. and can be arranged after your subscription service is cancelled in writing. Turnaround time approx 30 days. Whilst JRGD can recommend trusted hosting providers, all responsibility for site design & functionality is relinquished once transferred. Any development consultation required by third party providers throughout the process is billable at $110/hr.
15. FILE HOSTING
File hosting and file storage of any type is strictly prohibited on any and all servers used within JRGD's network. You MAY NOT use Your JRGD account as a download or file storage repository. Our Services are strictly offered for website hosting only.This means You cannot operate a site that specialises in downloads like download.com or for the use of storing data that is not being served on your website. You may not use Your JRGD Account as storage repository for MP3, games, video, audio or music files.
16. BACKUPS & DATA LOSS
Use of the Service is at Your sole risk. JRGD is not responsible for any and all files and data residing on Your account on our servers. JRGD cannot guarantee that the contents of a web site will never be corrupted, or that a backup of a web site will always be available. You agree to take full and sole responsibility for any and all files and data transferred to our servers and to maintain all appropriate backups of any and all files and data stored on any JRGD server to which You have an account on. A fee will incur in the event that a Service backup is required to be restored.
You, as JRGD's client, are solely responsible for the content stored on and served by JRGD's server. Client acknowledges that any further web site construction and management is client's responsibility. JRGD is not responsible for web site management or files lost or damaged by client.
18. GOVERNING LAW & JURISDICTION
Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of New South Wales and the Commonwealth of Australia, without regard to principles of conflict of laws. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the courts of New South Wales and the Commonwealth of Australia. You consent to service of process via email at the email address(es) provided by you, and waives any requirement under any judicial treaty requiring that legal process be translated into any language other than English.
19. DISPUTE RESOLUTION
Mindful of the high cost of litigation, you and JRGD agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and JRGD (a “Dispute”) The party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to us at: P.O. Box 157, Suffolk Park, NSW 2481, Australia or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and JRGD agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any legal proceedings against the other party.
1 May 2019