1. Overview
SERP Co (us, our or we) has agreed to provide to the person who accepts this document as client (you) (each a party) the services (each a Service and together the SERP Co services) specified in any invoice or proposal (Offer) on these terms and conditions (Ts and Cs).
These Ts and Cs (including the Schedule) are incorporated into and form part of our Offer. After payment of any deposit specified in these Ts and Cs or our Offer (Deposit) or the Setup Costs (see below), the SERP Co Services are invoiced on a monthly basis (month, monthly, or any words to that effect, means the period from a date to the calendar month anniversary of that same date eg a month commencing 14 June ceases on 13 July).
2. Acceptance of the SERP Co Services
On you accepting our Offer, it will be binding on all parties (Agreement). You can accept by either signing these Ts and Cs or by paying the Deposit to us (Acceptance).
If you do not accept the Offer within 28 days from the date that we provide it to you, we are not obliged to proceed with the Offer at our option. Prior to Acceptance, we may withdraw the Offer by notice to you.
3. Minimum Term
The minimum period which you must acquire each Service is set out in the respective clause for that Service, unless otherwise indicated in the Schedule in which case the period in the Schedule will apply (Minimum Term).
The Minimum Term for each Service commences once we inform you that the Service is operating (gone "live") and is suspended for any period to which we agree in writing with you. If suspended, the Service will recommence on our written advice to you.
If you are signing up as a SERP U or SERP University Agency student you get lifetime access to the courses. If you choose the payment plan option, you are still may owe the entire amount that SERP U was sold at the time of sign up. For example: If you sign up for SERP U for $1997 but choose the monthly payment option, you cannot cancel at anytime or if you do you may still be responsible for the remaining amount. This will be determined at SERP Co's discretion.
4. Duration of Agreement
This Agreement commences on Acceptance. For each Service which specifies a Minimum Term, subject to clause 3, the Agreement in respect of that Service will continue after the end of the Minimum Term for that Service, until it is terminated by either party on one months' notice or otherwise ends in accordance with the Agreement.
Each Service may be terminated independently of any other SERP Co Services after the end of its Minimum Term. For each Service which does not specify a Minimum Term, the Agreement for that Service will continue until the latter of us finishing delivery of that Service or termination of this Agreement.
5. Fees and payment
All course and coaching program sales are final. There are NO refunds unless stated in writing prior to signing up.
Our fees for providing each Service (Fees) are outlined in the schedule to these Ts and Cs (Schedule). Fees for each Service comprise:
a. the Deposit, any one time cost or setup cost (Setup Cost) is payable on Acceptance and is not refundable;
b. and the sum of the MMF (see below) and the monthly ad spend, if applicable (Monthly Fee). The MMF is paid for each month of the Minimum Term and any extension agreed. It is payable monthly in advance with the first monthly fee being due upon commencement of the campaign. Each MMF is payable before the month to which the invoice relates. The monthly ad spend is due in accordance with the Ts and Cs of the applicable service.
The MMF in each month is determined as the greater of the monthly management fee as specified in the Schedule for the relevant Service and 20% of Monthly Ad Spend unless otherwise stated.
Where the amount payable is greater than the Monthly Fee paid for the relevant month, we will invoice you for the difference in the following month. We will issue an invoice to you for the Fees. With the exception of the Deposit, the Setup Cost, and the first Monthly Fee (which are payable on Acceptance), you agree to pay each invoice on or before its due date.
If we request that you pay the Monthly Fee by the direct debit authority you will promptly set up a suitable authority. You must pay our invoices in full without set-off, deduction, or counterclaim and you acknowledge that this clause may be relied on in the bar of any such proceeding. We facilitate ad spend on your behalf as your disclosed agent. We have no liability to pay these amounts arising in respect of the ad spend.
These amounts of the outstanding monthly ad spend are totally and solely your responsibility. You must provide us with credit card information which we will make available to the relevant supplier of those services for payment of the monthly ad spend. If your credit card is declined for any reason, you must rectify the issue or provide us with an alternative payment method within 48 business hours at our request.
You will maintain during the Term a credit card account with sufficient available credit to satisfy any charges under this Agreement. You irrevocably authorize us to provide your information to the applicable provider (for Facebook, Google AdWords, or Remarketing services including AdRoll) in the event it is requested from us to recover any outstanding ad spend the balance. You authorize us to disclose detail of your credit card to third parties for the purposes of this Agreement and indemnify us in respect of any claim or liability arising from the misuse of your credit card other than for our fraud or wilful misuse and release us from any claim or liability not indemnified.
6. Access
You must provide us with any information requested or access to any of your systems that we reasonably require to perform each Service.
Your systems include any electronic offering, device or computer code, your website, Google AdWords account, Google Analytics account, Facebook Page, Facebook Ad Management account, cPanel account, FTP account or CMS account.
You must provide this information or access within the later of 14 days of Acceptance or when the information or access becomes first available to you.
7. Approval and provision of information
We will seek your approval to launch any version of a Service that allows public access (Approval). As part of the Approval process, you will be able to preview the Service. Any request, other than clause 8, for amendments or improvements to the Service (whether for usability, functionality, design or otherwise) beyond the scope of the Agreement will incur additional fees.
You will provide us with any information (or answers to our requests) in accordance with the timelines specified by us (whether in our Offer or otherwise). If you do not provide a response within 5 Business Days, unless otherwise stated, from the date the request was made, you will be deemed to have given your Approval.
8. Search Engine Optimization
Subject to the following and any express restriction in our Offer, we will provide Services to optimize your website (SEO Service), in accordance with the performance guarantee and timeframe specified in our Offer (SEO Guarantee). We guarantee to rank at least 10% of proposed key phrases on page 1 of Google within 90 days, 30% in 180 days, and 60% in 365 days. If we do not achieve an SEO Guarantee within the relevant timeframe, we will continue to provide the SEO Service without further charge during the term of this Service until that guarantee is achieved.
You agree that:
a. the Minimum Term of the SEO Service is 12 months;
b. the SEO Guarantee does not apply where:
i. a new domain has been implemented without an existing domain redirecting to it;
ii. And you modify or remove the "on-page" optimization work (including theme files and scripting) implemented by us;
c. the SEO Guarantee commences when we notify you that "on-page" optimization (including content approval by you) is complete;
d. the SEO Guarantee ends at the end of the initial Minimum Term;
e. subject to clause 17, we make no warranty that the SEO Service will generate any increase in your sales or business activity;
f. you will not hold us liable for any loss or damage arising from the SEO Service (other than as a result of our negligence);
g. SEO Service is governed by many factors which are outside our control and may affect the ranking of your website/ overall performance of SEO, including if:
i. your website has poor or duplicate content, is on an SEO unfriendly content management system (CMS), is suffering from a penalty (either automatic or manual from Google), has an unnatural link profile or is hosted on a slow or blacklisted server; or
ii. we cannot get access to your website and/or its CMS;
h. Google continually updates its search algorithms, which may change the operation of any SEO Service resulting in a negative impact on your website rankings. In these circumstances, we will endeavor to rectify any negative impact as quickly as possible, but give no warranty that rankings will improve. In rare circumstances, we may have to move your website to a new domain to remove a penalty (and if so, you must accept this recommendation and agree to pay any associated costs for any SEO Guarantee to be applicable); and
i. we may place in each footer of your web pages (or mobile applications) our "Digital Marketing by SERP Co" link.
9. Breach and Termination
We may terminate the Agreement by notice to you (without prejudice to any accrued rights) if you:
a. fail to pay an invoice when due;
b. revoke your established direct debit authorization without providing an alternative;
c. fail to follow our recommendations/advice in respect of the operation of the SERP Co Services;
d. run your own advertising campaign(s) in direct competition with any Service being provided by us;
e. contravene any other obligations of the Agreement and fail to promptly remedy that contravention;
f. fail to respond to our communication in a timely manner (or in any event within 5 Business Days); or
g. disparage us (in our reasonable opinion) in any way, including on social media, forums, reviews or websites or otherwise fail to act in a professional manner,
and fail to resolve that breach to our satisfaction in the period specified in the notice (which other than subparagraph (e) will be no less than 14 days,
You may not terminate a SERP Co Service before the expiry of its Minimum Term without our consent. After the Minimum Term, either party may terminate the Agreement by providing the other party with one month's written notice. If you seek to terminate a Service or if we terminate a Service because of your default before the end of the Minimum Term, you must pay the Termination Fee.
If you fail to pay an invoice by the due date, or you reverse a payment, in respect of any SERP Co Service, we may:
a. refuse to supply or suspend the operation of any SERP Co Service until the invoice is paid in full;
b. if payment is not made within 14 days of the due date, commence debt collection action without further notice;
c. terminate this Agreement;
d. change or withhold any logins or access particulars in respect of any SERP Co Service; and/or charge interest (which if not paid will compound on the monthly anniversary) at:
i. 10.5% per annum for SERP Co Services provided, and
ii. 4% above the penalty interest rate prescribed in the relevant state legislation for SERP Co Service provided in other states.
10. Confidentiality
Confidential Information includes the terms of this Agreement and any other information that a party discloses (Discloser) to the other party (Recipient) and includes information that a reasonable person would consider is confidential.
A Recipient must not, without the prior written consent of the Discloser, use or disclose the Discloser’s Confidential Information, unless expressly permitted by this Agreement or required to do so by law or regulatory authority.
A Recipient may and may only:
a. use the Confidential Information of the Discloser solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
b. disclose the Confidential Information to its officers, employees, or advisers to the extent necessary for the purposes of this Agreement, but only if reasonable steps are taken to ensure that the information remains confidential.
11. Intellectual Property Rights
Each party warrants that:
a. they own or are licensed to use in the manner contemplated by the Agreement the technology used in the SERP Co Services and all works (as defined in the Copyright Act 1968 (Cth)) including text, graphics, imagery, photography logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software and other content provided by that party (directly or indirectly) (Content), unless specified otherwise in writing; and
b. Content which they provide to the other party:
i. does not infringe the intellectual property rights of a third party;
ii. is not fraudulent, stolen, or otherwise unlawful;
iii. does not violate any applicable law, statute, ordinance or regulation (including those governing export control, consumer protection, unfair competition, or criminal law);
iv. does not unlawfully threaten or harass any person (in our reasonable opinion) or is defamatory (or any equivalent); and
v. does not contain viruses or other computer codes, files or programs which limit or destroy the functionality of other Content or computer hardware.
We reserve the right to refuse any Content that we consider being in contravention of any of the above.
Each party will retain all its rights in respect of its existing Content. You agree that we own all the Content created by us in connection with the Agreement (Created Content). You will not have any rights to the Created Content even after the payment of our invoice(s) and/or the termination of the Agreement.
12. Warranties
To the maximum extent permitted by law, you agree that all implied conditions and warranties are excluded from the Agreement, except to the extent that the exclusion would contravene any laws or cause this condition to be void (non-excludable condition).
Each party warrants that:
a. it has properly authorized the execution of the Agreement;
b. it has full power to execute, deliver and perform its obligations under the Agreement;
c. the Agreement constitutes a legal, valid, and binding obligation of it, enforceable in accordance with its terms;
d. they are authorized to use any Content which they provide to the other party; and
e. no Content which it causes to be published by, or displayed or associated with, will contain any illegal or unethical material (in our opinion, acting reasonably) (for the avoidance of doubt, where a party uses Content supplied by the other party, the user is deemed not to publish, display or be associated with that Content).
13. Limitation of liability
Our liability for a breach of a non-excludable condition is limited to our option to the re-supply of a replacement or equivalent Service, the rectification of the Service, or payment of the costs of having the Service replaced or rectified.
To the maximum extent permitted by law, we exclude any liability to you or any other person for any loss or damage consequential or otherwise and not limited to any loss of profits, revenue or goodwill arising out of or in connection with the provision of the Service provided, including:
a. loss of your data or interruption of your business;
b. any consequential damages or loss by you; and
c. failure to supply a Service caused by matters beyond our reasonable control, including acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts and the inability to obtain necessary resources.
To the maximum extent permitted by law, the parties agree that:
a. we will not be liable for:
i. any special, incidental, indirect, punitive or consequential damages (including, lost profits, injury to goodwill; and
ii. damage to persons or property, resulting from the use of the SERP Co Service, including in any business processes, or otherwise;
b. you assume all risks and liability in respect of any use of the SERP Co Service;
c. a party’s liability to the other party for any loss arising from that party’s negligence, breach of this agreement (except clause 5) or warranty is limited to the lesser of the invoice value of the relevant SERP Co Service in respect of which the claim is based and $2,000 (other than expressly excluded in this clause);
d. it is your responsibility to ensure all copy and creative materials produced under the Agreement are compliant with any and all relevant legislation or regulations that apply;
e. you discharge us from any other loss, claim, demand or cause of action; and
f. neither party will be liable to the extent that the other party or its agents, employees or subcontractors has caused or contributed to any loss.
14. Indemnity
You unconditionally and irrevocably indemnify, hold us indemnified and keep us, our officers, employees, and agents harmless against any and all action, claim, demand, loss, liability or cost (including legal cost on a solicitor and client basis), whether arising under contract, tort or a statute (including by a third party) that arises, or results from, or is in any way connected with the SERP Co Services, including the sale of any product or service via your website.
15. Your responsibilities
You will be responsible for any fees and charges applied by your financial institution for each unsuccessful debit attempt, any failed payment fee, and any collection fee, including any debt recovery agency or legal fees, incurred by us. You authorize us to attempt to re-process any unsuccessful payments after 3 Business Days. If the payment remains unsuccessful after 5 Business Days, you authorize us to suspend all SERP Co Services, pending full payment. In the event of a failed payment, you agree to pay us an administrative fee of $12 per failed transaction within 5 Business Days of an invoice being provided.
16. Notices
All notices must be in writing and may be given by personal delivery, post or email. A notice is deemed to be received if: by personal delivery, on the Business Day after delivery; sent by post, on 5 Business Days after the day of posting; and sent by email, on the Business Day after sending (unless within 12 hours of sending, the sender receives an automated delivery failure notification).
17. Jurisdiction
The laws of the United States govern this Agreement and each party submits to the exclusive jurisdiction of the courts of the United States.
18. Miscellaneous
Please refer to https://serp.co/contract-miscellaneous/ for miscellaneous components of this contract, such as definitions and interpretations.