SureFire Standard Terms & Conditions
Introduction
These terms of business and the attached Statement of Work (SOW) together form the entire agreement (“the contract” or “this Agreement”) between SureFire Search Ltd (“Consultant” or “we”) and all addressees (“Client” or “you”) of the SOW. If there is any conflict between these terms and the SOW, the SOW will prevail. Unless otherwise agreed in writing, any further work we may carry out in conjunction with this service will be carried out as part of this contract.
1. Engagement
Client engages Consultant, and Consultant accepts engagement, to provide Client with Search Engine Marketing Services as described in this Agreement.
2. Services
Search Engine Marketing Services are intended to provide the Client website with preferential positioning in selected key search engines and drive increased targeted visitors to Client website. Services to be provided by Consultant during the term of this Agreement shall include:
2.1 Services described in the SOW (“the Services”).
2.2 Unless specifically stated to the contrary in the SOW:
(i) We may allocate appropriate staff to perform the Services and may replace any personnel named in the SOW with personnel of similar skill;
(ii) Timetabled dates are intended for planning and estimating purposes only and are not contractually binding;
(iii) We are not responsible for the work of any other person who you engage to perform work in conjunction with our Services.
3. Fees
Fees as set out below are for the provision of the Consultant’s Services in relation to one website only. Client shall pay Consultant fees for Services as follows:
3.1. Fees do not include any disbursements such as directory fees and ghost writing of articles and media releases if required.
3.2. Any Fee estimate is given in good faith but is not contractually binding.
3.3. Other services as requested charged on a time cost basis @ $200 per hour invoiced monthly.
3.4. Fees are exclusive of GST, which is also payable.
3.5. Our invoices are due for payment by the 20th of the month following invoice date. If payment is not received by the due date we reserve the right to suspend provision of the Services with immediate effect until payment has been received in full and/or charge interest on the outstanding amount at a rate of 2% per month compounding. You will also be required to pay a campaign re-start fee of $500.
3.6. Payment to be made by cheque, international money order or direct credit to:
SureFire Search Ltd,
ASB Bank, Business Banking Centre, 19 Hargreaves Street, Ponsonby, Auckland, New Zealand.
Account: 12-3209-0448301-00
3.7. The Consultant may issue invoices covering both anticipated fees and disbursements (including, without limitation, the charges in clause 4) in advance of the Services being carried out. Any positive or negative adjustment to any such invoice shall be made by the Consultant in the invoice for the following month.
4. Search Engine and Directory Charges
4.1. Consultant’s fees do not include fees or other charges required by search engines, directories or media release online distribution services. These will be billed directly to Client by Consultant.
4.2. Search engines and directories fees vary according to each client’s individual requirements. Consultant will advise Client of the recommended search engine and directories fees payable in relation to the client’s website.
4.3. Consultant is under no obligation to make payment of any sums for search engines and directories fees prior to Consultant receiving pre-payment of such sums.
4.4. Consultant will not commit Client to payment of any sums for engine or directory fees or costs without client’s consent which shall be deemed to be given in the event of any pre-payment of such sums.
4.5. Selection of search engines and directories plus payment of any applicable fees is at the sole discretion of Consultant.
5. Performance of Services
5.1. Consultant shall determine the manner in which the Services are to be performed and the specific hours worked by Consultant. Client will rely on Consultant to work as many hours as may be reasonably necessary to fulfil Consultant’s obligations under this Agreement.
5.2. Consultant will endeavour to attain top rankings in search engines for targeted keywords, however Consultant does not control search engines and therefore cannot guarantee top search rankings.
6. Client Obligations
For the purposes of providing the Services, Client agrees to:
6.1. Promptly provide information requested by Consultant during the research and analysis phase. This input is necessary for Consultant to understand Client’s business and therefore develop the most appropriate Search Engine Marketing strategy.
6.2. Provide Consultant with an email address of a technician who can upload requested changes on a timely basis. Consultant cannot be held responsible for delays once the technician has been notified of the upload request. Client will alert anyone else who has access to Client’s website that Consultant is performing work on Client’s website.
6.3. Client authorises Consultant’s use of all Client logos, trademarks, website images, etc., for use in creating landing pages, and any other uses as deemed necessary by Consultant for search engine optimisation.
6.4. Client undertakes any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Consultant for inclusion on the website are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Consultant from any liability or suit arising from the use of such elements.
6.5. If requested Client will provide additional relevant text content in electronic format for the purpose of creating additional web content.
6.6. If requested Client will provide Consultant with articles for syndication on other websites and online Press Releases. If necessary Consultant can arrange to have appropriate articles and Press Releases ghost-written on behalf of Client. This is out-sourced & additional costs apply. Client will provide information requested by Consultant for use in creation of articles. Articles will be provided to client for approval prior to publication.
6.7. Client authorises Consultant to solicit links on Client’s behalf and modify Client’s links page as required without asking prior approval from Client.
6.8 Client agrees to act as a reference for Consultant’s services. Consultant may list Client (including name and contact information) and at its discretion publish a case study about its Search Engine Marketing services in which Client agrees to reasonably participate and cooperate with SureFire Search.
7. Client acknowledges the following:
Without limiting or affecting the Consultant’s performance undertaking provided above:
7.1. Consultant 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 site may be excluded from any directory at any time at the sole discretion of the search engine or directory.
7.2. Some search engines and directories may take as long as 3 – 6 months, and in some cases longer, after submission to list your site. Any changes requested by Client of deemed necessary by Consultant after submission may therefore take a subsequent 3 – 6 months.
7.3. Search engines will occasionally stop accepting submissions for an indefinite period of time.
7.4. Search engines will occasionally drop listings for no apparent or predictable reason. Consultant will re-submit the site based on the current policies of the search engine in question.
7.5. Payment of submission fees or costs does not ensure inclusion and placement with or in an engine or directory.
7.6. If Consultant recommendations are not followed we cannot be
held accountable for any negative impacts this has on search engine rankings.
7.7. Consultant has no control over the linking policies of other websites. The decision of other sites to link to Client’s website is entirely at their discretion and Consultant gives no undertaking that links obtained will be maintained indefinitely.
7.8. Traffic projections made are based on search engine estimates. These figures are not guaranteed & actuals may vary.
7.9. The Consultant may charge the Client a fee for any loss arising from the actions undertaken by third parties in relation to the Services offered by the Consultant.
8. Confidentiality
During the term of this Agreement and at any time thereafter Consultant and the Client shall not without the prior written consent of the other party, disclose to anyone any Confidential Information. “Confidential information” for the purposes of this Agreement shall include Consultant’s and Client’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, passwords or user ids, financial information, tools and designs. Confidential information shall not include any information that:
8.1. Becomes publicly available through no act of either party.
8.2. Is rightfully received by either party from a third party.
8.3. For the avoidance of doubt, both parties’ obligations under this provision shall survive the completion of the term of this Agreement.
8.4. Nothing in this provision shall limit or affect any other confidentiality agreement entered into between the parties to this Agreement.
9. Intellectual Property Rights
9.1. Intellectual property rights in all documentation, systems, materials, methodologies and processes (“tools”) brought to and utilised by Consultant in relation to the Services or created in the course of providing the Services, and in all working papers and reports, remain vested in Consultant or any third party that has any rights in respect of any matters relating to the Services as appropriate. You agree to protect, not infringe nor in any way prejudice any such rights.
9.2. Subject to the requirement to treat confidential information as confidential any spreadsheet, database, system, technique, methodology, idea, concept, information or know-how developed in the course of the contract may be used in any way we deem appropriate, including by or for our clients, without any obligation to account to you.
9.3. In the case of documentation or software prepared by the Consultant for you we may, on termination or completion of the contract, retain one copy of such information as a professional record of our involvement.
10. Other Engagements
10.1 Nothing in this contract prevents the Consultant from providing services to other clients provided that we take reasonable steps to ensure that each client’s confidential information is not disclosed to other clients.
10.2 This contract is separate from other engagements that we may perform for you or for other clients and we have no obligation to utilise knowledge gained from such other engagements when performing the Services under this contract.
11. Circumstances outside the Parties control
Neither party will be liable to the other for any failure to fulfil obligations caused by circumstances outside its reasonable control.
12. Assignment
Neither party may assign, transfer, charge or otherwise deal with its rights or obligations under the contract without the prior written consent of the other party, except that each may transfer its respective rights and obligations to a partnership or legal entity authorised to take over all or part of its business.
13. Liability
13.1. The liability of the Consultant to the Client for breach of this Agreement, negligence or other breach of duty is in all cases limited to the fees, exclusive of disbursements and taxes, which Consultant has been paid for the specific work in respect of which a claim has arisen.
13.2. Consultant shall not be liable in any way whatsoever for indirect or consequential loss or loss of profit arising from the contract or otherwise including but not limited to any loss by reason of delay, negligence or any act or matter or thing done, permitted or omitted by the Consultant and the Client shall have no rights to off-set or claims against the invoiced fees and disbursements under any circumstances.
14. Indemnity
The Client indemnifies and holds harmless the Consultant for all costs, claims, expenses, losses and liabilities arising as a result of the Consultant providing the Services under the contract excluding any costs, claims, expenses, losses or liabilities arising directly from the default or negligence of the Consultant.
15. Term of Engagement
Consultant shall provide Services to Client for a 12 calendar month term unless stated to the contrary in the SOW. After this period, renewal for an additional period of 12 calendar months subject to negotiation and mutual agreement. Thereafter, the engagement shall automatically renew for subsequent one (1) year terms unless either party notifies the other of its election not to renew ninety (90) days prior to the end of the then current term.
16. Termination
16.1. Client may terminate this Agreement prior to full 12 month term subject to Client paying Consultant in full all monthly campaign management and any other fees that would apply from termination date through to 12 month term completion date.
16.2. Client must give not less than two weeks written notice, such notice expiring and the Agreement being terminated on the last day of the calendar month in which notice is given.
16.3. Termination of this Agreement will not prejudice any rights or obligations of the parties that exist prior to termination.
16.4. If requested by the Consultant, the Client shall immediately return any proprietary material in relation to the Services to the Consultant on termination of the contract or as soon as reasonably practical following such date.
17. Suspension and Termination for Non Payment of Fees or Breach
17.1. In the event that the Client fails to pay any fees in accordance with this Agreement or is otherwise in breach Consultant may, without prejudice to any other rights and remedies, suspend all Services until all outstanding fees are paid or the breach is remedied.
17.2. Where any fees payable pursuant to the terms of this Agreement are unpaid for a period of one month or any other breach remains unremedied for more than 14 days, this Agreement may be terminated by Consultant forthwith by giving written notice to the Client.
18. Final Agreement
This Agreement constitutes the final understanding and Agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties, whether written or verbal. This Agreement may be amended, supplemented or changed only by an agreement in writing signed by both parties.
19. Entire Agreement
19.1. The contract forms the entire agreement between the parties.
19.2. To the extent permissible by law all warranties, conditions, representations and liabilities or terms other than those expressly stated are excluded.
19.3. No delay or failure by either party to exercise any of its rights under this contract shall be treated a waiver of such rights.
19.4. If any term of the contract is held to be invalid the enforceability of the remainder of the contract will not be affected.
20. Resolving Disputes
20.1 The contract is governed by New Zealand law.
20.2 Should any dispute arise, the parties will attempt to resolve it in good faith by senior level negotiations (this may include mediation using the services of an agreed mediator).
20.3 If the dispute is not resolved through negotiation of mediation the New Zealand Courts will have exclusive jurisdiction, over all claims that may arise out of or in connection with the contract.
20.4 Each party hereby irrevocably waives any claim that an action is brought in an inconvenient forum, or that the New Zealand Courts do not have jurisdiction.
21. Notices
Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left at or sent by:
21.1 First class post or express or air mail or other fast postal service; or
21.2 Registered post; or
21.3 Telex, facsimile or other electronic media to a party at the address or relevant telecommunications number for such party or such other address as the party may from time to time designate by written notice to the other.
22. Execution
This Agreement may be signed in any number of counterparts, including facsimile copies, with the same effect as if the signature to each were upon the same contract, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
SureFire T&C 21 June 2010
