The Organic Agency’s Terms and Conditions
“Agreement” means the agreement which is governed by these Terms and Conditions
“Associated Documents” means any documents created by The Organic Agency on the reading of which contains terms which relate to the relationship between The Organic Agency and its Customer.
“Customer” means the person who engages the Services of The Organic Agency 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 four months unless otherwise stated in the Customer proposal.
“Biddable Media” means Paid Search Media, Paid Social Media, Display Buying & Campaign Optimisation and products such as Google Adwords, Facebook, Bing that The Organic Agency may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto.
“The Organic Agency” means The Organic Agency Pty Ltd or any other related entity or company trading under the ‘The Organic Agency’ brand name.
“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 The Organic Agency 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 of the Agreement as provided in clause 2.2.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services.
2.1 The Customer is deemed to have accepted the Terms and Conditions in any of the following ways:
2.1.1 by providing a written acceptance to the Terms and Conditions by execution of The Organic Agency’s Terms and Conditions or by any other form of written communication:
2.1.2 by placing an order with The Organic Agency or instructing The Organic Agency to provide the Services after:
(a) The Organic Agency’s Terms and Conditions received by the Customer; or
(b) the availability of The Organic Agency’s Terms and Conditions on The Organic Agency’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
2.2 The Terms and Conditions comprise the terms in The Organic Agency’s Terms and Condition read in conjunction with the Customer proposal, Schedule to Customer Proposal and Associated Documents if any and where there is a conflict between The Organic Agency’s Terms and Conditions and the other contractual documentation created by The Organic Agency the documentation will prevail in the following priority to the extent of such inconsistency:
2.2.1 Service Agreement if any;
2.2.2 Customer Proposal.
2.2.3 The Organic Agency’s Terms and Conditions;
2.2.4 Associated Documents.
2.3 Where there are PPC Services provided by The Organic Agency to the Customer, the PPC Terms will prevail over the documents stated in subclause 2.2
2A. WARRANTIES BY CUSTOMER
2A.1 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.
2A.2 The Customer warrants that it has given The Organic Agency all necessary information for it to perform its work including details of all parties which have access to make changes to the website.
2B. CUSTOMER’S RESPONSIBILITIES
2B.1 The Customer will:
2B.1.1 disclose to The Organic Agency 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 The Organic Agency with such access to the Website and to provide all necessary assistance to enable The Organic Agency to change and modify the Website which is reasonably required to enable The Organic Agency to provide the Services safely in accordance with the Agreement;
2B.1.4 make available as soon as is reasonably possible to The Organic Agency all material required to complete the Services;
2B.1.5 notify The Organic Agency 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 The Organic Agency.
3. PERFORMANCE LEVELS
3.1 The Customer acknowledges that:
3.1.1 The Organic Agency is unable to guarantee improved rankings in Australia’s major search engines;
3.1.2 The Organic Agency is unable to guarantee improved traffic to the Customer’s website(s).
3.1.3 The Organic Agency makes no warranty that the 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;
3.2 The use of the ‘The Organic Agency Services’ is at the Customer’s own risk.
3.3 The Organic Agency will endeavour to ensure that any development/design site or application will function correctly on the server 2 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. The Organic Agency can offer no guarantees of the correct functioning with all browsers.
4. EXCLUSION OF LIABILITY OF THE ORGANIC AGENCY
4.1 To the fullest extent permissible by law, The Organic Agency 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 The Organic Agency or otherwise. Where liability cannot be legally excluded, the liability of The Organic Agency shall be limited to the cost of supplying the Services again.
4.2 The Customer agrees to indemnify The Organic Agency, 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) by any third party claim for damages arising out of or in any way connected with the supply of Services by The Organic Agency 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 whether arising from the negligence of The Organic Agency or otherwise including any claims arising from or in connection with the Customer’s information and the Customer’s use of The Organic Agency Services.
4.3 The exclusions and indemnities in clauses 4.1 and 4.2 above apply to but are not limited to the following instances:
4.3.1 malfunctioning of the Website or any part of it;
4.3.2 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.
4.3.3 failure to meet agreed deadlines;
4.3.4 URLs dropped or excluded by a search engine for any reason;
4.3.5 acts or causes beyond The Organic Agency’s control, including but not limited to acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters;
4.3.6 failure of URLs to achieve specific positions within a particular search engine;
4.3.7 the use or the results of the use of the materials available through the ‘The Organic Agency’ Services from third parties or otherwise not being correct, accurate, timely or reliable;
4.3.8 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 The Organic Agency;
4.3.9 the functioning of any software created for the Customer whether database, e-commerce applications or otherwise;
4.3.10 unavailability, malfunction or interruption of services; and
4.3.11 changes made by The Organic Agency to the Customer’s website.
4.4 The Organic Agency 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 The Organic Agency 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.
5. FEES AND PAYMENTS
5.1 Upon acceptance of the Terms and Conditions, the Customer is liable to pay the total amount in advance for The Organic Agency’s Services. However, The Organic Agency may agree at its sole option to accept in lieu of payment of the total amount, equal monthly payments in advance during the Period. If the Customer breaches the Terms and Conditions, the total amount will immediately become due and payable.
5.2 If additional work is performed by The Organic Agency 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 or an algorithm penalty or by changes made to the website by a third party, The Organic Agency may make a reasonable additional charge for the additional work performed by it.
5.3 In the event that the Customer fails to make payment of The Organic Agency invoices, without prejudice to any other rights The Organic Agency has, interest will accrue at the rate of 2% per month on any outstanding amount and the Customer indemnifies The Organic Agency against all costs and expenses however arising from such default including legal costs on a solicitor/own client basis and any mercantile agent’s cost at a commission rate of not more than 18 percent and any such liability shall be deemed to be part of the indebtedness of the Customer to The Organic Agency.
5.4 The Organic Agency 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 The Organic Agency for the period of 30 days;
5.5 There are no refunds available on Services by The Organic Agency.
5.6 All The Organic Agency charges will be deducted against the credit card or account the Customer designates in the executed Credit Card Authority or Direct Debit authority such 3 deduction being made 7 days The Organic Agency renders the tax invoice on the Customer. The Customer agrees that The Organic Agency 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 The Organic Agency’s charges.
5.7 If the Customer disputes an invoice including disputing an item in an invoice, the Customer must notify The Organic Agency in writing of the issue in dispute within 7 days of becoming so aware and must pay such part of the invoice which is not disputed in accordance with The Organic Agency’s trading terms, failing which the Customer waives all rights to dispute the invoice at a later date.
6.1 Subject to clause
6.2, Both The Organic Agency 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 for a further Period on the same terms and conditions unless it has been agreed in writing between the parties that the Agreement shall not run for a further Period in which case the Agreement shall continue from month to month until terminated by either party on one month’s notice.
6.2 The Organic Agency may give the Customer written notice of variation of the Agreement (including the fees and charges of The Organic Agency) 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 The Organic Agency 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.
6.3 The Organic Agency may terminate the Agreement immediately by written notice to the Customer where the Customer:
6.3.1 becomes bankrupt, or insolvent, or becomes subject to external administration; or
6.3.2 commits a substantial breach or default under the Agreement; or
6.3.3 repudiates the Agreement; and if The Organic Agency does give such notice, the Customer must pay The Organic Agency the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
7. THE ORANIC AGENCY’S RIGHTS
7.1 Any remedy of The Organic Agency under these Terms and Conditions is in addition to and not in substitution for any remedy which The Organic Agency has in law.
7.2 If the Customer unlawfully terminates, The Organic Agency 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 The Organic Agency remain the copyright of The Organic Agency and may only be commercially reproduced or resold with the permission of The Organic Agency.
8.1 The Customer agrees that the Customer’s personal data may be used and retained by The Organic Agency 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.
9.1 Notwithstanding the expiration or termination of the Agreement, 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 the Agreement and to use such data only for the above stated purpose save where such Confidential Information is:
9.1.1 in the public domain at the time it is disclosed; or
9.1.2 known to the receiving party at the time of disclosure; or
9.1.3 used or disclosed with the prior, written approval of the disclosing party; or
9.1.4 used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to the Agreement; or
9.1.5 independently developed by the receiving party; or
9.1.6 known to the receiving party from a source other than the disclosing party without a breach of the Agreement by the receiving party. 10 Miscellaneous 10.1 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. 10.2 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. 10.3 The Organic Agency 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 The Organic Agency.