Terms and Conditions
1. Service Terms and Conditions
1.1 General
1.) Refunds. All fees are non-refundable.
2.) Confidentiality. All fees, services, documents, recommendations, and reports are confidential.
3.) Scope. All services under this agreement will be provided on a time and materials basis at the standard hourly rates as stipulated under fees and charges.
4.) Copyright. The Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Living Online for inclusion on the website are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Living Online and its subcontractors from any liability or suit arising from the use of such elements.
5.) Age. The Client representative confirms that they are over 18 years of age are fully and legally authorised to enter into a binding commercial agreement.
6.) Indemnity. The Client indemnifies Living Online from all claims arising from Client behaviour, including but not limited to posting illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable content. Further the Client understands that Living Online specifically prohibits the posting of such content and warrants not to post content that breaches this agreement. The Client also indemnifies Living Online from all claims due to other forms of client behaviour. For the purposes of indemnification ‘claims’ means losses, actions, liabilities, damages, expenses and reasonable attorneys’ fees and court costs.
7.) Subscriptions. Subscriptions are accepted on a rolling basis whereby Living Online will continue to provide subscription based services unless given notice of cancellation.
8.) Cancellation. Living Online maintains the right to terminate this account at the sole discretion of Living Online. Cancellation of the project at the request of the Client must be made by letter and will be considered effective upon confirmation of receipt of letter by Living Online. In the event that work is postponed or cancelled at the request of the Client by letter, Living Online shall have the right to retain fees paid to date. In the event this amount is not sufficient to cover Living Online for time and expense already invested in the project additional payment will be due at the standard consulting rates and payable immediately. The Client must provide Living Online with one month’s notice when cancelling subscription based services, whereby Living Online will provide services for and charge for the subsequent service period to the period in which the cancellation letter was received. The subsequent service period to the period in which the cancellation letter was received will be billed in full and will not be billed on a pro-rata basis.
9.) Privacy. Living Online will not provide any Client information to any third parties other than for purposes described in Living Online’s privacy policy.
10.) Login Details. The Client is wholly and fully responsible for remembering and securing any user names and passwords provided by Living Online.
11.) Limitation of Warranty. The Client expressly agrees that the Client’s use of, or inability to use, the Service is at the Client’s sole risk. The Service and all products and services delivered to the Client through the service are provided “as is” and “as available” for Client use, without warranties of any kind, either express or implied, including all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
12.) Modification of Terms and Conditions. Living Online maintains the right to modify the terms and conditions at any time and at the sole discretion of Living Online. If the client deems the modifications to terms and conditions to be unreasonable, the client maintains the right to cancel the service within 7 days of receipt of said modifications as per normal terms of cancellation without being subjected to the modified terms and conditions.
13.) Pricing. Living Online maintains the right to modify pricing at any time and at the sole discretion of Living Online.
14.) Opportunity to Cure. Prior to any claim for damages being made, the Client must provide Living Online with reasonable notice of any alleged deficiencies in performance and Living Online shall have a reasonable opportunity to cure any alleged defect in performance.
15.) Venue. Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this agreement was entered into Perth, Western Australia, and any dispute will be litigated or arbitrated in Perth, Western Australia and the Client hereby consents to the personal jurisdiction of the Western Australian courts. Furthermore, the Client waives any right to or claim of sovereign immunity.
16.) Travel. You acknowledge that we charge our hourly rate for time spent travelling, where that travel is reasonably required to provide services to you. For example, if we are required to meet with you at your offices we will charge you for travel time to and from your offices.
17.) Outstanding Invoices. If any invoice remains unpaid for more than 14 days, from the date of receipt of that invoice, we, at our absolute discretion, may choose not to undertake any further work for you (with respect to the project to which the agreement relates or any other project we are working on for you) until such time as that invoice is paid by you in full (including any outstanding interest).
18.) Acceptance and Payment. The Client shall not unreasonably withhold acceptance of, or payment for, services rendered by Living Online. If, prior to completion of the project, the client observes any non-conformance with the requirements, Living Online must be promptly notified, allowing for necessary corrections. Rejection of the completed project or cancellation during its execution will result in forfeiture of deposit, fees paid to date, and payment will be due for all additional labour or expenses incurred to date. All elements of the project must then be returned to Living Online. Any usage by the client of those elements will be consider acceptance of the project and result in appropriate legal action. Client shall bear all costs, expenses, and reasonable attorney’s fees in any action brought to recover payment under this contract or in which Living Online may become a party by reason of this contract.
19.) Limitation of Liability. Should there be legal dispute from the execution of this agreement, Living Online’s liability shall be limited to the amount it has received from the Client as payment for its services.
20.) Nondisclosure. Living Online, its employees, and subcontractors agree that, except as directed by the Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. Likewise, the Client agrees that it will not convey any confidential information obtained about Living Online to another party.
21.) Validity. The terms and conditions contained herein become effective and enforceable only when this agreement has been signed by both parties.
22.) Rapid Turnaround. The provisioning of rapid turnaround or special report services may be deemed to be out of scope to existing contract agreements. Living Online reserves the right to charge additional monies to prioritise such projects ahead of pre-existing planned work. Rapid turnaround fees will be pre-negotiated.
23.) Client Availability. The Client shall make its personnel available to Living Online for discussion, on the Client’s premises, or elsewhere subject to Living Online’s agreement, in a reasonable timely manner.
24.) Late Payment. In the event that payment is not received within the agreed payment terms in this quotation Living Online shall be entitled to issue further invoices for late payment charges at a rate of 5% of the outstanding amount per calendar month or part thereof.
25.) Force Majeure:
Definition: For the purpose of this clause an “Event of Force Majeure” means an event or circumstance which is in the nature of Force Majeure” including, but not limited to, fire, flood, storm, accidents, plague, earthquakes, riots, explosions, wars, hostilities, labour disputes and industrial actions which prevent a party from complying with its obligations under this Agreement, and which that party:
i. did not cause;
ii. cannot control or influence; and
iii. could not have prevented or avoided through prudent management processes, policies and precautions including the use of alternative resources, the procuring of services from another source and work around plans.
Effect: The obligations of a party directly affected by an Event of Force Majeure and any corresponding entitlement of another party will be suspended to the extent and for so long as the performance of the affected party’s obligations are prevented or delayed by the Event of Force Majeure. An Obligation to pay money is not excused by the Event of Force Majeure.
Notification: The affected party must notify the other party if the Event of Force Majeure prevents (or is likely to prevent) it from complying with any of its obligations under this Agreement as soon as it becomes aware of the Event of Force Majeure.
Obligations to Re-commence Performance: The affected party must:
i. use its best endeavours to work around or overcome the effect of the Event of Force Majeure;
ii. keep the other party informed of continuation and expected duration of the Event of Force Majeure and of measures taken to comply with this clause; and
iii. re-commence performance of its obligations as soon as possible after the Event of Force Majeure has ceased to exist.
iv. If a party is delayed in performing its obligations under this Agreement due to the circumstances beyond its reasonable control (and without fault or negligence by that party), then the time within which such obligation must be performed is extended for the period of such delay. This clause does not operate to allow the Client to commission services on any date or at any time other than those specified in this Agreement.”
1.2 Web design and development
26.) Intellectual Property. Living Online maintains intellectual property rights over all code and design provided to the Client as part of this agreement. Living Online grants the client the unencumbered right to use the code and design material for the promotional or operational purposes. The Client agrees not to resell Living Online’s code and design intellectual property in the provision of web design and development services. The Client maintains intellectual property rights over all content provided by the Client.
27.) System Requirements. Use of the Web Design and Development Service requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to use the Service may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service.
28.) Hosting Access. The Client will establish a separate contract with an Internet Service Provider (ISP) for hosting, or Living Online will establish one for the Client. The Client hereby authorizes Living Online to access this account, and authorizes the Host Provider to provide Living Online with “write permission” for the Client’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project.
29.) Domain Registration. Living Online will secure a domain name for the Client at the Client’s request. All charges incurred will be billed as per the schedule of fees and charges listed in this contract.
30.) Browser Compatibility. Living Online represents and warrants that the web site we design for you will work in all modern browsers.
Any additional compatibility work will be considered outside the scope of this contract and will be billed as per the hourly rate stipulated in the schedule of fees and charges. The Client is aware that some advanced techniques on the Internet may require a more recent browser version and brand or plug-in. The Client is also aware that the development of new browser versions may not be backwards compatible. Time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of this agreement.
31.) Subcontractors. Living Online reserves the right, and the Client hereby agrees, to assign subcontractors to this Web Design and Development Project to insure that the terms of this agreement are met.
32.) Client Responsibility. The Client agrees to work expeditiously submit all necessary material to Living Online in a timely and prompt manner. If the Client does not supply Living Online with required content within 45 days of the effective date of this agreement, Living Online has the option to retain the entire deposit amount of the agreement as liquidated damages and render the contract null and void.
33.) Provision of Imagery. The Client agrees to provide Living Online with all the graphic elements necessary to complete the Client’s website, including but not necessarily limited to the company logo.
34.) Provision of Hosting. The Client understands that Living Online does not provide any hosting services in connection with this Web Design and Development Project unless stipulated under the deliverable section of this contract. Hosting services require a separate contract with the hosting service of the Client’s choice. The Client agrees to select a hosting service which allows Living Online full access to the Client’s account via FTP (File Transfer Protocol). The Client will be solely responsible for any and all hosting service charges.
35.) Consumables and Expenses. The Client agrees to reimburse Living Online for any Client requested expenses necessary for the completion of the project, including but not necessarily limited to the purchase of stock photography imagery, fonts, or software.
36.) eCommerce. The Client agrees that the Client is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the Web Design and Development project or any other services contemplated herein, and will hold harmless, protect, and defend Living Online and its subcontractors from any claim, suit, penalty, tax, fine, penalty, or tariff arising from the Client’s exercise of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
37.) Legal Notice. Notwithstanding anything to the contrary contained in this contract, neither Living Online nor any of its employees or agents, warrants that the functions contained in the Web Design and Development project will be uninterrupted or error-free. The entire risk as to the quality and performance of the Web Design and Development Project is with the Client. In no event will Living Online be liable to the Client or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate this Web Design and Development Project, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, Client or Client site visitor’s computer or Internet software, even if Living Online has been advised of the possibility of such damages.
1.3 Search engine optimisation
38.) Objective. Living Online’s SEO services are intended to serve two main purposes: 1) to provide the Client with increased exposure in search engines, and 2) to drive targeted online traffic to the site.
39.) Client Provision. For the purposes of receiving professional SEO services, Client agrees to provide the following:
Administrative/backend access to the website for analysis of content and structure.
Permission to make changes for the purpose of optimization, and to communicate directly with any third parties if necessary.
Unlimited access to existing website traffic statistics for analysis and tracking purposes.
A ‘clientsite.tld’ email address for the purposes of requesting links.
Authorization to use client pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as deemed necessary by Living Online for search engine optimization purposes.
If Client’s site is lacking in textual content, Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages. Living Online can create site content at additional cost to the Client. If Client is interested in purchasing content from Living Online, please contact Living Online for a cost estimate.
40.) Search Engine Algorithms. Client acknowledges that Living Online 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.
41.) Limitation of Guarantees. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Living Online does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase, or search term.
42.) Risk. The Client acknowledges that there is some risk inherent with any SEO activity, and that at any time the search engines may choose to alter their algorithm and/or apply retrospective penalties to SEO techniques which may cause material damage to the Client’s business. The Client acknowledges that Living Online has no control over the actions of search engines and that Living Online cannot be held accountable for search engine actions. As such, the Client agrees that Living Online will not be liable for any loss of ranking, traffic, sales, or other types of business value that may be lost through a reduction in search engine visibility. By entering into this contract, the Client accepts all risk and understands that such risk is part of SEO activity.
43.) Exclusivity. Living Online does not warrant that they are providing services to the client on an exclusive basis unless otherwise stipulated. Living Online may be providing SEO services to other clients in the same area of business.
44. Sandbox. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for anywhere between 3 and 12 months. This is referred to as the “Google Sandbox.” Living Online assumes no liability for ranking/traffic/indexing issues related to Google Sandbox penalties.
45.) Re-optimisation. Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO. Should a listing be dropped during the SEO campaign and does not reappear within 30 days of campaign completion, Living Online will re-optimize the website/page based on the current policies of the search engine in question.
46.) Paid Directories. Some search directories offer expedited listing services for a fee. If the Client wishes to engage in said expedited listing services (e.g., paid directories), the Client is responsible for all paid for inclusion or expedited service fees. Living Online can offer a list of expedited listing services upon request.
47.) Paid Links. Living Online does not engage in Blackhat SEO and as such does not source paid links for clients. Any paid links to the Client site can damage a site’s ranking. The Client acknowledges that Living Online cannot provide any assurances about SEO performance if there is any previous or current history or evidence of paid links to the website.
48.) Bad Linking. Linking to “bad neighbourhoods” or getting links from “link farms” can seriously damage all SEO efforts. Living Online does not assume liability for the Client’s choice to link to or obtain a link from any particular website without prior consultation.
49.) Third Party Actions. Living Online is not responsible for changes made to the website by other parties that adversely affect the search engine rankings of the Client’s website.
50.) Client Actions. Living Online is not responsible for the Client overwriting SEO work to the Client’s site. Notwithstanding any other provision of this Agreement, Living Online has no obligation to provide remedial SEO services in the event that the Client’s conduct negates SEO services already provided. The Client will be charged an additional fee for re-constructing content, based on the standard hourly rate.
1.4 Digital advertising management
51.) Objective. Living Online’s digital advertising management is intended to drive targeted online traffic to the site through the placement of sponsored listings in third party search engines and other advertising networks.
52.) Competitive Marketplace. Client acknowledges that Living Online has no control over the bid costs for search terms due to the fact that sponsored listing placements are auctioned to the highest bidder.
53.) Limitation of Guarantees. Due to the competitiveness of some keywords/phrases, the potential for poor website quality to affect bid costs, and other competitive factors, Living Online does not guarantee that digital advertising management will return a positive return on investment for any particular keyword, phrase, or search term.
54.) Landing Pages. The Client acknowledges that digital advertising management is most effective when ads are being directed towards purpose built landing pages. The Client hereby accepts that landing pages may be required in order to obtain the highest potential benefit from the digital advertising management campaign. The creation of landing pages must be pre-agreed and will be billed at Living Online’s standard hourly rate.
55.) Performance Management. Digital advertising management can include the adjustment and refinement of existing campaigns and Adgroups.
56.) New Campaigns. Once the account has been setup the creation of new campaigns will be deemed out of scope and extra to the monthly performance management budget. The creation of new campaigns must be pre-agreed and will be billed at Living Online’s standard hourly rate.
57.) Client Approval. All materials for digital advertising management publication shall be submitted by Living Online to the Client for prior approval before to publication. Following such approval, Living Online shall not be liable to any person or entity for any loss or damage suffered by any party resulting directly or indirectly from such publication. The Client further agrees to indemnify Living Online from any claim by any party in this regard.
58.) Click Validity. The Client acknowledges that Living Online has no control over click validity. Search engines take certain steps to reduce the incidence of invalid Clicks, but it cannot be guaranteed that all Clicks charged to the Client were caused by bona fide users. As a result, Living Online disclaims any representation or warranty as to the validity of Clicks for which the Client may be billed. The Client acknowledges and agrees that this provision is an essential element of the Agreement and, in its absence, the economic terms of this Agreement would be substantially different.
59.) Third Party Payments. Any payments to third parties such as Google, Yahoo or Microsoft will be the Client’s responsibility.
60.) Third Party Actions. Living Online is not responsible for changes made to the website by other parties that adversely affect the performance of the digital advertising management campaign.
61.) Client Actions. Living Online is not responsible for the Client modifying the content of the Client site that adversely affects the performance of the digital advertising management campaign.
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