Date: October 2013
Terms and Conditions
These are the standard terms and conditions of supply of the Florence Road Online Marketing Services offered from time to time on Florence Road’s web site at http://www.florenceroad.com.com/ (“Florence Road Web Site”) and/or the Proposal (as defined in clause 1.1.2 below the “Services”, each individually a “Service”).
Please read these terms and conditions carefully. It is a condition of your use of the Services that you (“you”) comply with these terms and conditions.
1. Terms and Amendment Procedure
1.1 This agreement comprises, in order of priority, highest to lowest:
1.1.1 the terms and conditions of this agreement; and
1.1.2 the Florence Road Online Marketing Proposal (“Proposal”).
1.2 This agreement commences on the date upon which Florence Road confirms to you by email or any other written medium that a Service has been commenced or activated (“Commencement Date”).
1.3 Florence Road may change these terms and conditions either by obtaining your consent or giving you notice. The period of notice given by Florence Road depends on the nature of the change. If:
1.3.1 the change will benefit you, we may make the change immediately and are not required to notify you prior to the change;
1.3.2 the change is required by law, a regulatory body or for a technical reason (including for security), we will give you a reasonable period of notice not exceeding 3 days;
1.3.3 we consider that the change has a significant and detrimental impact on our customers generally, we will give you at least 30 days notice prior to the change, and
1.3.4 for all other changes, we will also give you at least 30 days notice prior to the change. Florence Road may give notice of a change by posting the new version of the Agreement on its website located at http://www.florenceroad.com/policies/
1.4 If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.
1.5 These terms constitute the agreement in its entirety and supersede all prior agreements.
1.6 Any reference in this agreement to Florence Road’s “supplier” is a reference to any third party service provider of Florence Road (a “Supplier”), if and to the extent a Supplier is supplying any part of the Services to you on behalf of Florence Road.
2.1 The Services shall be provided to you from the Commencement Date for the minimum period specified in the Proposal (“Initial Period”). On expiry of the Initial Period, the contract will automatically be extended on a month by month basis (“Additional Period”). The Initial Period and each Additional Period are referred to as the “Service Period”. The contract can be terminated on 30 days notice before the end of the Initial Period or Additional Period.
2.2 Prior to or upon the Commencement Date, you and Florence Road shall agree on the key phrase or keyphrases (depending on the Services that you have elected to obtain from Florence Road) in respect of which Florence Road will provide the Services (as the context requires, depending on the Services that you have elected to obtain from Florence Road “Agreed Keyphrase/s”).
2.3 You agree to provide Florence Road with any information, material, excerpts of or links from or to any content (“Your Web Site Information”) on Your Web Site reasonably requested by Florence Road, to assist Florence Road with providing the Services to you.
3. Billing and Payment
3.1 You must pay for the Services in accordance with the prices and charges published on the Florence Road Web Site or the Proposal (as applicable, and as amended from time to time in accordance with clause 1.3).
3.2 You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in accordance with the billing provisions specified on the Florence Road Web Site or in the Proposal.
3.3 Prices and charges published on Florence Road’s Web Site or in the Proposal are inclusive of any government taxes or charges unless otherwise stated.
3.4 You consent to Florence Road or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Florence Road of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
3.5 Unless otherwise stated, fees are payable in advance and non-refundable.
3.6 If we have invoiced you in arrears for any Services, and you fail to pay the charges in any invoice by the due date specified in any applicable billing provisions (as referred to in clause 3.2 above) or the invoice (“Unpaid Charges”), in addition to any other rights under this agreement, Florence Road may charge you interest and you agree to pay, on demand by Florence Road, interest on the Unpaid Charges at the Applicable Rate from the date the Unpaid Charges became due until those Unpaid Charges are paid to Florence Road in full. For the purposes of this clause, “Applicable Rate” means the Reserve Bank’s Official Cash Rate (as published in the Australian Financial review at the time the Unpaid Charges become due)
3.7 You agree that in the event of any action being taken by Florence Road to recover any overdue amount due to it under this agreement or the Proposal, as evidenced for example by, without limitation, your credit card company notifying Florence Road of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by Florence Road in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Florence Road) are payable by you to Florence Road and shall be recoverable by Florence Road as a separate debt.
4. Your Warranties
You warrant that:
4.1 you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either Florence Road or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;
4.2 you are at least 18 years of age;
4.3 your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or any other rights of Florence Road, its Supplier or any third party;
4.4 you have the right to provide us with Your Web Site Information, and, if applicable, FTP Access, with respect to Your Web Site;
4.5 you will not alter, and will procure that no other person alters, any element of the textual content, content structure, graphical content and/or source code of Your Web Site, at any time during the Service Period, without Florence Road’s prior written consent;
4.6 neither Your Web Site nor any of the content of Your Web Site (including, without limitation, Your Products and Services (if applicable), Your Web Site Information, and if applicable, any Optimisation Changes implemented by Florence Road or, by you or anyone on behalf of you)(collectively, “Your Web Site Property”) will infringe the intellectual property or any other rights of any third party;
4.7 Your Web Site and Your Web Site Property will at all times comply with all laws required to be complied with by you; and
4.8 Your Website and use of the Supplier services contemplated under this Agreement complies with all relevant policies of those third parties (for example, without limitation, you comply with the Google policies in relation to use of its AdWords service).
5. Our General Disclaimer of Warranties
5.1 To the extent permitted by law, neither Florence Road nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a “Relevant Party”) of either Florence Road or the Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.
5.2 Florence Road agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, Florence Road, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of either Florence Road or its Supplier:
5.2.1 that the Services will be uninterrupted or error free;
5.2.2 that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Florence Road or its Supplier;
5.2.3 concerning the results or success that may be obtained from the use of the Services;
5.2.4 concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Services (including, for the avoidance of doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that you may determine to offer for supply, or supply via your web site, the Internet or otherwise (“Your Products and Services”));
5.2.5 as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services, or, for the avoidance of doubt, any information provided by Florence Road or its Supplier in any advice, report or communication to you or any other party;
5.2.6 that the provision of the Services will result in the ranking of Your Web Site improving; and/or
5.2.7 that the provision of the Services will result in an increased amount of traffic or users to Your Web Site; and/or
5.2.8 concerning any market conditions (whether favourable or not) that may be in existence at the Commencement Date will continue; and/or
5.2.9 that the provision of the Services generally, or any software utilised by Florence Road to provide the Services, will not be subject to, or result in, either errors and/or delays.
5.3 You acknowledge that although Florence Road may suggest Optimisation Changes to you in connection with providing the Services, Florence Road cannot and does not, nor does any Relevant Party, take any responsibility for Your Web Site or Your Web Site Property. Accordingly, you agree that you shall at all times be solely responsible for Your Web Site and Your Web Site Property notwithstanding the provision of the Services to you by Florence Road or its Supplier.
5.4 Without limiting the above, you acknowledge that Florence Road’s Services may require Florence Road to use, interface with or input information into Supplier’s systems (including companies such as Google and Yahoo!) and you agree that Florence Road has no liability to the extent that the Supplier is unable to provide its services to you.
You will indemnify and defend Florence Road and its Supplier and all directors, officers, employees, and agents of Florence Road and its Supplier (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:
6.1 Your Web Site; and/or
6.2 Your Web Site Property; and/or
6.3 Florence Road’s role as your agent (and any action or inaction by Florence Road as part of that role); and/or
6.4 any breach of this agreement by you; and/or
6.5 the use of the Services by you.
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
7. Limitation of Liability
7.1 You agree that neither Florence Road nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if Florence Road or its Supplier (as the case may be) has been advised of the possibility of such damages.
7.2 Subject to clause 7.1, you further agree that the aggregate liability of Florence Road and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
7.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Florence Road and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.
7.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Florence Road and its Supplier (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of Florence Road and its Supplier) shall be limited to the greatest extent permitted by applicable law.
8. Intellectual Property
8.1 You acknowledge that all right, title and interest in any and all:
8.1.1 technology, including the software;
8.1.2 any documentation and material that is part of or provided with the Services; and
8.1.3 any know-how, trademarks or service marks of Florence Road or its Supplier, (collectively, “Our Intellectual Property”) is vested in Florence Road, its Supplier and/or the licensors of Florence Road or its Supplier (as the context requires).
8.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.
8.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
8.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of Florence Road and/or its Supplier (as the context requires); provided, however, that nothing in this clause 8.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 8.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.
9. Confidential Information
You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of Florence Road or its Supplier (“Confidential Information”). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of Florence Road or on termination or expiration of this agreement, you shall return the Confidential Information of Florence Road or its Supplier then in your possession to Florence Road or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by Florence Road and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.
10.1 You agree to comply with Florence Road’s Acceptable Use Policy located at http://www.florenceroad.com/terms/, as varied from time to time (“AUP”). If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, in addition to any other rights of Florence Road under this agreement, you agree that Florence Road or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of Florence Road, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, Florence Road shall not refund to you any fees paid to Florence Road prior to such corrective action.
11. Force Majeure
Neither Florence Road nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
12. Suspension or Termination of this agreement
12.1 In addition to any other rights under this agreement, Florence Road may suspend or terminate this agreement and cease providing the Services to you:
12.1.1 if you breach any term of this agreement and (if capable of remedy) fail to remedy that breach within 14 days of receipt of a notice from Florence Road requiring you to remedy that breach;
12.1.2 if any of the following events occur:
184.108.40.206 you becomes insolvent or are otherwise unable to pay its debts as and when they fall due;
220.127.116.11 you (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to you, for the settlement of your debts;
18.104.22.168 you make a general assignment for the benefit of creditors; or
22.214.171.124 you cease to conduct business;
126.96.36.199 if requested to do so by a third party; or
188.8.131.52 Florence Road has elected to cease providing the Services to you for any reason whatsoever. Notwithstanding any suspension of any Service under this clause 11.1, you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
12.2 In addition to any other obligation under this agreement, if Florence Road terminates this agreement:
12.2.1 you must pay all outstanding charges to Florence Road immediately; and
12.2.2 any licence issued to or by you in relation to the Services will cease from the date of termination.
13. Cancellation and Exit Fee
13.1 You may cancel the Services within four business days of the Commencement Date.
13.2 Where you have cancelled any Services pursuant to clause 13.1, and Florence Road will refund you for any other payments you have previously paid to Florence Road with respect to the Services and this agreement shall automatically terminate.
13.3 If you cancel the Service during the Initial Period, you must pay to Florence Road the “Exit Fee” within 30 days of cancellation. The Exit Fee is calculated as follows:
Exit fee = 70% * Number of unpaid months remaining in contract * monthly fee
14.1 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.
14.2 In the event it is necessary for Florence Road to enforce its rights under this agreement, you agree to pay all fees incurred by Florence Road (including, but not limited to, legal fees and collection agency fees)
14.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of Florence Road.
14.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
14.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.
Specific Additional Terms
The following specific additional terms apply to the products indicated below.
See terms and conditions at http://www.florenceroad.com/terms/
Online Marketing Services
1. You agree that Florence Road may from time to time during the Service Period, propose changes to any website owned or operated by you in respect of which the Services are being provided (“Your Web Site”), including, without limitation, to suggest adjustments to Your Web Site in the event that search engine algorithms change, and which Florence Road considers might assist you in improving the ranking of Your Web Site (each an “Optimisation Change”, collectively,”Optimisation Changes”).
2. You hereby authorise Florence Road to develop a link exchange program whereby links to and from Your Web Site, and other websites and/or industry guides and/or directories, are established, and you hereby appoint Florence Road as your agent for this purpose. Florence Road agrees to use all reasonable commercial endeavours to ensure that Florence Road does not insert links to and from Your Web Site to or from obscene, defamatory or sexually explicit websites and/or industry guides and/or directories.
3. Florence Road agrees that it will not, and will not recommend that you, cloak any pages or hide same colour content on same colour background or otherwise knowingly use spam methods in an attempt to improve the ranking of Your Web Site in connection with the provision of the Services.
4. If you agree to provide Florence Road with FTP (file transfer protocol) access (“FTP Access”) to Your Web Site, Florence Road agrees not to make any Optimisation Changes to Your Web Site, without your prior written consent to such Optimisation Changes.
5. In addition to paragraph 4, if you agree to provide Florence Road with FTP Access to Your Web Site (but not otherwise), you expressly grant to Florence Road a licence to cache the file and content of Your Web Site, including data and content supplied by you and/or third parties, whether or not Your Web Site is hosted by Florence Road’s Supplier. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to Florence Road. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
6. In the event that you do not agree to provide Florence Road with FTP Access, Florence Road agrees that any Optimisation Changes will be provided by Florence Road to you in writing.
7. Florence Road agrees to provide you with monthly written ranking reports with respect to the Agreed Keyphrase/s (“Benchmark Report”).
8. All fees are non-refundable and payable in advance.