- Terms and Conditions
Terms & Conditions
These Terms and Conditions will apply to every supply of Services. Geekware reserves the right to vary these Terms and Conditions at any time by submitting to you a copy of the amended Terms and Conditions. Otherwise these Terms and Conditions may only be altered or waived in writing signed by the Managing Director of Geekware.
Terms and their meanings
In these Terms and Conditions, the following words commencing with a capital have the following meanings
Agreement: has the meaning as set out in clause 4.10;
Losses: means any direct, indirect, consequential or incidental loss, costs, damages or expenses of any nature whatsoever and howsoever caused including, but not limited to, loss of profits, loss of savings or other incidental or consequential damages, and any claims, actions, or demands in relation to any of the foregoing;
Pay Per Click Advertising or PPC: means an advertising model in which advertisers pay for clicks to their website from Search Engines and advertising networks predominantly, but not limited to, Google Adwords and Yahoo Search Marketing;
Proposal: means the written communication setting out the Services to be undertaken and the fees payable in respect to such Services and may include additional terms and conditions of trade;
Search Engine: means a tool designed to search for information on the Internet, such as Google, Yahoo and Bing.
Search Engine Optimisation or SEO: means any service which is designed to assist your Web Site gain a higher listing in the Search Engines;
Services: means the provision of services by Geekware in relation to, but not limited to Search Engine Optimisation, Pay Per Click Advertising, Social Media Services or Web Design;
Social Media Services: means any service which is designed to promote your brand through a platform such as, but not limited to Facebook, Twitter, YouTube, Pinterest or LinkedIn
Web Design: means the design and development of a website;
Geekware: means Geekware Pty Ltd (ABN 1715 6605 695);
We, our and us: means Geekware;
Website: means your company website or the website which Geekware is designing and / or marketing; and
You and your: means any person or entity that Geekware provides Services to.
- Provision of Services
- Provision & Acceptance of Proposals
- We will provide a Proposal upon request. The Proposal will set out the scope of work to be undertaken by us on your behalf.
- Upon receipt of a Proposal from us, you will have thirty (30) days in which to accept same in writing, following which the Proposal shall lapse. Upon receipt of such acceptance from you, we will confirm our engagement to provide the Services in accordance with the Proposal either in writing or by commencement of such Services. No binding obligations shall arise until such time as we confirm our engagement as set out in this clause 2.1.2.
- Following confirmation of our engagement, we will have no obligation to perform any task or Services on your behalf unless it is expressly set out in the Proposal or otherwise agreed in writing by us.
- Web Design / Secure Web Page / Virus Protection Terms
- We retain ownership of any website, and the intellectual property and rights attaching to same, developed by us on your behalf including but not limited to any content developed by us, until such time as payment of all amounts owed to us as set out in the applicable Proposal are received. Upon receipt of all such amounts all right title and interest in your website including any content developed by us will automatically be assigned from Geekware to you with the exception of the source files and codes developed by Geekware which shall remain the sole property of Geekware. Source files are generally included within the Proposal presented.
- You will be responsible for maintaining backups of your website and any customer data which is generated from your website marketing.
- You will be the owner of, and responsible for, all images purchased and displayed on your website (with the exception of content developed by Geekware, ownership of which shall be dealt with in accordance with clause 2.2.1).
- You warrant to us that:
(a) you will only use your website for lawful purposes;
(b) you will not knowingly or recklessly post, link to or transmit on your website any material:
that is unlawful; or containing a virus or other hostile computer program;
that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and
(c) any transactions within your website which are contracts for sale of goods or services will be between you as the merchant and your end-user customer;
(d) the information contained within your website will comply with applicable law, and codes of practice governing the use of internet and related services, including,
Terms & Conditions |Geekware Pty Ltd 1300 766 949 | V1.0 3
without limitation, those codes of practice governing distance selling and data from time to time in force; and
(e) you will keep secure any identification, password and other Confidential Information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any or suspected breach of security, including loss, theft or disclosure of your password information.
- Notwithstanding notification of any breach of security as required pursuant to the warranty in clause 2.2.4(e), you will be liable for any and all uses of your website including but not limited to any fraudulent or improper use of your password or any other access to any of the facilities or Services provided by Geekware with the exception of unauthorised use or access by Geekware.
- It is your responsibility to ensure that you have appropriate virus protection software in place.
- If the provision of our Web Design services is delayed for over one month due to circumstances within your control without your prior written notice to us, we may reschedule the provision of the Web Design services to you and charge you an additional fee of 10% of the total Web Design fee to cover our administration expenses.
- Search Engine Optimisation Services
- While we will try to improve the position of your website in Search Engine results in response to a search request, we do not warrant that this effort is in any way guaranteed. You acknowledge that our SEO services are focussed primarily on achieving improvements in the position of your website when undertaking certain key word searches using the Google Search Engine.
- You acknowledge that, unless the Proposal provides for exclusive dealing, Geekware may at its discretion offer SEO services to businesses in competition with you and/or businesses in the same or a similar industry as you.
- We do not guarantee, warrant or represent that a higher ranking of your website in Search Engine results will result in increased traffic to your website and/or increased sales.
- We use paid and free methods in an attempt to raise the ranking of your website in Search Engine results. We disclose, and you acknowledge, that without notice Search Engines, in particular Google, can devalue a particular method which may lead to a lower ranking of your website in Search Engine results. We cannot be held responsible for a lower ranking of your website in Search Engine results.
- Pay Per Click Advertising (“PPC”)
- We will manage your PPC budget.
- Payment of the PPC budget will be made directly to the Search Engine provider, in particular Google.
- We do not guarantee, warrant or represent that PPC will result in increased traffic to your website and/or increased sales.
- We will not be responsible for any errors or miscalculation of fees made by Google or other Search Engines.
- To terminate your PPC campaign you must provide us with at least two (2) working days’ notice in writing. You will be liable for any fees incurred during the notice period.
- We will not be responsible for any loss of your PPC budget due to downtime of your website or website hosting.
- Social Media Services
- You hereby authorise us to promote your brand through a social media platform such as but not limited to Facebook, Twitter, YouTube, Pinterest or LinkedIn.
- Payment of the Facebook and/or LinkedIn Advertisements will be made directly to the specific social platform. You must set up a credit card with Facebook and/or LinkedIn for such payments.
- We will also provide Facebook and/or LinkedIn Advertisement Management as per Proposal.
- We do not guarantee, warrant or represent that Social Media Services will result in increased traffic to your website and/or increased sales and/or increased media reach.
- We will not be responsible for any errors or miscalculation of fees made by Facebook or other social medias.
- The minimum term for the Social Media Service is three (3) months and thereafter to terminate the Social Media Services you must provide us with at least thirty (30) working days’ notice in writing.
- Provision & Acceptance of Proposals
- Exclusion and Limitation of Liability
- With the exception of any warranties that are unable to be excluded either at law or under Statute, all conditions and warranties, whether express or implied and whether arising under Statute or otherwise, as to the condition, suitability, quality or fitness of the Services are expressly excluded.
- Without limiting the generality of clause 3.1, we expressly provide no warranty in relation to:
(a) the effectiveness of our virus protection software nor do we warrant that all information uploaded or transmitted from us to your computer network will be free from viruses;
(b) the Services will be error free or free from interruption failure; and
(c) system and/or service availability, accessibility or performance.
- The liability of Geekware:
(a) for a breach of a condition or warranty implied by law, Statute or otherwise, and which cannot be excluded; and
(b) in respect to any other Losses suffered or incurred by you or any person or entity related to or associated with you arising out of or in connection with performance of the Services; will be limited to any one of the following as determined by Geekware:
(c) the supplying of the Services again; or
(d) the payment of the cost of having the Services supplied again.
- Notwithstanding anything to the contrary contained within these Terms and Conditions, these Terms and Conditions will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any services pursuant to this Agreement of all or any of the provisions of Chapters 2 and 3 of the Schedule 2 to the Competition and Consumer Act 2010 or any other provisions of that Statute or of any other Act of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia which by law cannot be excluded, restricted or modified.
- Subject to clause 3.2, you indemnify, on a full indemnity basis, and agree to keep indemnified, Geekware from all Losses suffered by Geekware arising out of or in connection with provision of the Services including but not limited to any Losses arising from any action, claims, demands or suits commenced or made against Geekware by any third party.
- General Terms and Conditions
We shall use reasonable endeavours to provide continuing availability of the Services but we shall not, in any event, be liable for Service interruptions.
- Property Rights and other Consents
You are solely responsible for obtaining any and all necessary consents and authorisations in relation to all material, images and content whatsoever that appears on or is used in your website including without limitation in respect of your proposed domain name, logos, pictures, text, merchant services agreements and any other information you provide to us.
- Subject to any fixed term as set out in the Proposal, either party may terminate this Agreement by giving thirty (30) days written notice to the other party. In the event you terminate this Agreement, or this Agreement is terminated by us pursuant to either clause 4.3.2 or clause 4.3.3, during the fixed term period, then you will be liable to pay us on demand the SEO Setup Fee as set out in the Proposal and you acknowledge that the SEO Setup Fee represents a true and accurate assessment of our liquidated damages arising from any termination of this Agreement (as set out in this clause) during the fixed term period.
- We may terminate this Agreement immediately by notice in writing to you if you fail to make payments in regards to the Services to us as and when they fall due.
- We may terminate this Agreement immediately by notice in writing to you if you:
(a) are in breach of any of these Terms and Conditions and you fail to rectify such breach within five (5) working days from receipt of notice from us requesting rectification of same; or
- (b) if you are a company and you go into liquidation, administration or receivership; or
(c) if you are a person and you are declared bankrupt.
- You will be responsible for all costs in relation to the provision of the Services up to and including the date of termination of the Services.
- Subject to any increase in accordance with clause 4.4.2, all fees payable by you to us for the Services shall be as outlined in the Proposal and shall be due and payable within seven (7) days of receipt of our invoice in relation to such Services. For the purposes of clause 2.2.1, the payment of your final instalment as set out in your Proposal will trigger the automatic assignment from Geekware to you of the right, title and interest in all intellectual property and content contained on your website.
- We reserve the right to increase our fees for provision of the Services from time to time by giving you a minimum of thirty (30) days written notice.
- The provision, or continued provision, by us of the Services is contingent upon our receipt of payment in full from you in accordance with the applicable Proposal. Without prejudice to any other rights and remedies we may have, we reserve the right to suspend the provision of the Services to you in the event of late payment of any amounts owed by you to us.
- In the event that any amount has not been paid by you as it falls due in accordance clause 4.4.1 (“Due Date”), interest on the outstanding amount will be payable by you in accordance with this clause 4.4.4. Such interest shall accrue on the outstanding amount from time to time at the rate of ten percent (10%) per annum from the Due Date until the outstanding amount is paid to Geekware in full, such interest to be calculated on a daily basis and paid monthly in arrears. For the avoidance of doubt, the first of such interest payments will be due one month after the Due Date, or as otherwise directed by Geekware.
- In addition to interest payable pursuant to clause 4.4.4, you will be liable, and you agree to immediately reimburse Geekware upon demand, for any costs incurred by Geekware in relation to collection of any outstanding amounts owed by you to us including but not limited to legal costs.
- Upon provision of a credit card account, you give us authorisation to automatically debit your credit card in relation to all amounts owed by you to us for provision of the Services and as set out in applicable invoices.
- In relation to Geekware services, unless agreed with you otherwise, the Proposal we provide to you shall be payable in four equal instalments as follows.
(a) the first instalment: at the commencement of the Web Design services;
(b) the second instalment: on the date one month following the commencement of the Web Design services; and
(c) the third instalment: on the date two months following the commencement of the Web Design services.
- (d) the fourth instalment: on the date three months following the commencement of the Web Design services. You must make payment for the above invoices even if the provision of our Web Design services is delayed due to circumstances within your control.
- Consent to Link to Website
Subject to any increase in accordance with clause 4.4.2, all fees payable by you to us for the Services shall be as outlined in the Proposal and shall be due and payable within seven (7) days of receipt of our invoice in relation to such Services. For the purposes of clause 2.2.1, the payment of your final instalment as set out in your Proposal will trigger the automatic assignment from Geekware to you of the right, title and interest in all intellectual property and content contained on your website.
If any clause of these Terms and Conditions is held to be invalid and/or unenforceable in whole or in part, the invalid or unenforceable shall be deemed to be omitted.
The benefit of the Agreement may be assigned by us. You may not assign the Agreement or otherwise transfer the benefit of this Agreement or a right or remedy under it, without our prior written consent.
- Change to Terms on Renewal
We may change the Terms and Conditions at any time by providing you thirty (30) days’ notice in writing setting out details of the change.
- Confidential Information
Confidential Information is information disclosed by the client (Discloser) to Geekware (Recipient) or of which the Recipient becomes aware, during the term of this Agreement, including:
(a) information designated as confidential by the Discloser including passwords and identification information; and
(b) any other information which by its nature should reasonably be considered to be confidential information of the Discloser or of a person to whom the Discloser owes a duty of confidence. Confidential Information may be provided in writing, electronically, verbally or otherwise. Confidential Information does not include any information which the Recipient can prove either is in the public domain or was known by the Recipient at the time of disclosure, other than through a breach of this agreement.
- Entire Agreement
These Terms and Conditions together with the Proposal, constitute the entire agreement with you (“the Agreement”), and supersede all prior agreements, understandings representations whether oral or written. No oral explanation or information given by any party shall alter the interpretation these terms and conditions.
- Governing Law
This agreement shall be governed by the laws in force in the state of Queensland, Australia. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.
In the event of any inconsistency between these Terms and Conditions and the Terms and Conditions contained in the Proposal, the Terms and Conditions of the Proposal will prevail.