Terms of Service Agreement
Proud Cactus ABN: 52 53 874 8123
This Terms of Service Agreement (the “Agreement”) sets out the terms and conditions on which you (the “Client”) have engaged Proud Cactus, to perform certain Services as outlined below. This is a legally binding agreement between you and Sher Yee Chong TAS Proud Cactus (hereinafter “Proud Cactus”). By becoming a Proud Cactus 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 Proud Cactus.
The Terms & Conditions in this agreement apply to any and all parties that have engaged Proud Cactus in any capacity for any of their Services.
1.1 Proud Cactus offers digital marketing services specialising in search engine optimisation (hereinafter “SEO”) and Google AdWords (hereinafter “PPC” or “Pay Per Click”).
1.2 SEO Services Proud Cactus 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 Proud Cactus 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 The Client authorises Proud Cactus to appoint agents and/or contractors from time to time to assist in the provision of the Services under this Agreement.
2. PROUD CACTUS’ OBLIGATIONS
2.1 Proud Cactus will provide Services to the Client in accordance with Proud Cactus’ standard policies and procedures. Proud Cactus reserves the right to reject Clients for any other reason, at Proud Cactus’ sole discretion. Proud Cactus will be responsible for all aspects of providing the Services.
2.2 All Proud Cactus rules, policies and operating procedures concerning privacy, pricing, customer service, and all other aspects of the Services will apply, and Proud Cactus may change its rules, policies and operating procedures from time to time in its sole discretion.
3. REPORTS AND ACTIVITIES
3.1 Proud Cactus’ SEO link building activities (“off-page optimisation”) are confidential and Proud Cactus does not disclose these activities. However, to provide the Client with feedback & transparency about how their campaigns are progressing with SEO services, Proud Cactus provides access to ranking reports and/or monthly website performance reports.
3.2 Monthly Website Performance Reports are only applicable to Clients whose Proposal explicitly states this as a deliverable. 3.3 Clients who have engaged “one-off” services are not entitled to monthly reporting, meetings, consultations or Support unless explicitly stated in written correspondence.
3.4 Clients who have purchased one of the SEO Setup Packages are not entitled to Website Performance Reports or any other reports except for confirmation of tasks completed as part of the respective Setup package.
3.5 Clients who have engaged Proud Cactus for any Service wherein a Letter of Agreement or Proposal has not been submitted are not entitled to receive any reports or deliverables unless explicitly stated in written correspondence.
3.6 Proud Cactus provides results-based services and all reporting is associated with outcomes that have been achieved as a result of our Services. Reporting also includes expert commentary, ongoing recommendations and consultation. Proud Cactus’ methods of achieving these results are confidential and proprietary. These methods, backend processes and activities are not reportable to the Client. Hours worked on the Client’s project or Services are not reportable to the Client.
4. FEES AND PAYMENT
4.1 All fees for Services provided to the Client are due for full payment in advance of the provision of Services.
4.2 For all ongoing Services provided to the Client, the first payment must be made in full prior to the designated Campaign Launch Date, which will be stated in written correspondence between Proud Cactus and the Client. The Campaign Launch date marks the beginning of the Client’s monthly Billing Cycle. Thereafter, all monthly payments must be made in full prior to start of the following Billing Cycle, until the Agreement has been cancelled (see 5.1).
4.3 Proud Cactus will send invoices to the Client at the start of each month following a full month of service provided and payment terms are 7 days on each invoice.
4.4 A Client can make payments to Proud Cactus by bank transfer.
4.5 Charges not paid by the due date for any reason might result in a suspension of Services until full payment is received.
4.6 All fees are non-refundable.
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 30 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 become effective on the day they are processed by Proud Cactus. The Client will be notified of the cancellation via email.
6. WARRANTY DISCLAIMERS
6.1 Proud Cactus 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 Victoria.
6.2 Proud Cactus 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, Proud Cactus’ Services are aimed at increasing visibility and boosting traffic from Google. Google does change its algorithm and Proud Cactus is not responsible for the client’s rankings due to this algorithm change. Proud Cactus will endeavour to maintain the Client’s Google rankings, but the Client acknowledges that Proud Cactus 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 organisation, Proud Cactus 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 Proud Cactus in any way before it appears on Client’s Website;
6.4.2. Proud Cactus 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).
6.4.4. Proud Cactus has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
6.4.5. Client will provide Admin-level access to their website.
6.4.6. Proud Cactus retains the right to display graphics and other web content elements as examples of their work in their portfolio and as content features in other projects.
6.4.7. Proud Cactus retains the right add a “Footer Credit Link” on the Client’s website footer, linking to the Proud Cactus website. If the Client prefers to not have this Footer Credit Link, this must be stated and agreed to in writing prior to commencement of the Client’s services.
6.5 Proud Cactus does not warrant or guarantee that:
6.5.1. any information available on or through Proud Cactus 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 Proud Cactus 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 Proud Cactus on the Client’s social media profiles or the Client’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 Proud Cactus 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 Proud Cactus 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 Proud Cactus 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, Pinterest, the Client remains responsible for checking the content and for correcting it if it is necessary.
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 Proud Cactus on Proud Cactus marketing materials (such as websites, proposals, and portfolio examples).
The Client will indemnify Proud Cactus 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
Proud Cactus 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 Proud Cactus has been advised of the possibility of such damages. In no event shall Proud Cactus’ liability to the Client hereunder exceed the amount paid to Proud Cactus 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.The Client accepts that, as a limited liability entity, Proud Cactus has an interest in limiting the personal liability of its employees (and contractors). You agree that you will not bring any claim personally against Proud Cactus’ employees and contractors in respect of any losses you suffer in connection with the Services provided by Proud Cactus.
9. UNENFORCEABLE PROVISIONS
If any provision of this Agreement is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this Agreement.
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 Proud Cactus’ sole discretion. 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 Proud Cactus’ 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 Victoria (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 email. 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.