Terms and Conditions of Keyword Intent Pty Ltd ACN 138 544 555 (“the Supplier”)
These Terms and Conditions (“T&Cs”), and no terms and conditions of the Customer, will apply to any supply of Services by the Supplier to the Customer.
In these T&Cs:
“Agency Plan” means a licence the Supplier grants to the Customer, giving it access to and use of online applications, available from the Supplier’s Website, to manage search engine optimisation, link building and online public relations activities for the Customer’s website and those of the Customer’s clients.
“Application” means any written or verbal order by the Customer to the Supplier for Services;
“Beta Services” means Services, software or other applications that have received an alpha test but are still undergoing tests to rectify bugs or other unresolved issues prior to regular release;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity of the Supplier including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of a subscription Application by the Supplier;
“Customer” means the customer making Application to subscribe to the Supplier’s Website;
“Customer Data” means all data, information or material of any nature whatsoever that the Customer submits to the Supplier in the course of receiving the Services;
“Goods” means products, if any, supplied by the Supplier in respect to provision of the Services;
“Keyword Data” means words or phrases internet users type into world wide web search engines, to locate websites with content relating to goods or services they are searching for.
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trade marks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Payment Information” means information related to billing and payment matters including:
(a) a valid debit card or credit card number the Customer is authorized to use for payment of the Price for the Services; and
(b) an election of a preferred billing frequency, and
(c) other information as required by the Supplier;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
“Price” means the price of the Services;
“Registration Data” means full, true and correct information about the Customer including, but not limited to, the Customer’s legal identity, address, telephone number, email address, billing details and authorised billing contact;
“Services” means the particular services a Customer has made Application to receive from the Supplier, from its suite of services and may include the supply of the Agency Plan, Small Business Plan or other services offered by the Supplier from time to time, to Customers and includes any associated goods or services supplied pursuant to the Contract.
“Small Business Plan” means a licence the Supplier grants to its Customer, giving it access to and use of online applications, available at the Supplier’s Website, to manage search engine optimisation, link building and online public relations activities for the Customer’s website.
“Start Date” means the date the Supplier commences supplying the Services after an Application has been received and accepted.
“Supplier’s Website” means either www.keywordintent.com, www.keywordintent.com.au, www.keywordintent.co.nz, www.keywordintent.co.uk or http://app.keywordintent.com and when the context requires, means all of them.
“Term” means an indefinite period commencing on the Start Date and continuing until the Contract is terminated in accordance with these T&Cs.
Application for Services
3.1 Any Application by the Customer to the Supplier or any acceptance of any Services by the Customer will constitute agreement to these T&Cs by the Customer.
3.2 If the Supplier accepts an Application in connection with any Services, the parties will have created a binding Contract and the Customer will pay the Price to the Supplier in accordance with the terms of the Contract (which will include these T&Cs). If Goods are supplied to the Customer and are not included in the Price, the Customer will pay the additional charges applicable to supply of those Goods in accordance with the terms of the Contract (which will include these T&Cs)
3.3 Upon making Application for Services the Customer must complete the Supplier’s online registration process which will include, but is not limited to:
(a) Provision to the Supplier of the Registration Data”; and
(b) confirming electronic acceptance to these T&Cs.
3.4 The Customer must promptly notify the Supplier if the Registration Data ceases to be accurate in any respect at any time throughout the Term.
3.5 Subject to the next clause, the password and username selected by the Customer, as part of the Supplier’s online registration process, must be kept secret and the Customer must use every effort to ensure nobody, other than the Customer, accesses the Services pursuant to the Customer’s chosen password and username.
3.6 The Customer does not breach the preceding clause by allowing its Personnel to access the Services.
3.7 The Customer is solely responsible for all activities, acts and omissions that occur while any user accesses the Services with the Customer’s password and username (whether that access is by the Customer, the Customer’s Personnel or any unauthorised third party) and assumes all Liability incurred by the Supplier or the Supplier’s Personnel arising from any unauthorised access to the Services through the Customer’s password and username.
3.8 The Customer will immediately notify the Supplier if it becomes aware a third party has come into possession of the Customer’s password and username.
3.9 The Customer must ensure the Payment Information provided as part of the online registration process is true, complete and correct and must ensure any account used to pay the Price has available credit sufficient to pay the Price. The Supplier shall not be responsible for any overdraft charge or other fees incurred by the Customer if the Customer’s account has insufficient credit to pay the Price. The Customer is solely responsible for updating the Payment Information as necessary. The Customer authorizes the Supplier, from time to time, to take steps to determine if the Payment Information provided is valid.
3.10 The Customer warrants that:
(a) the nature and scope of the Services stated in any Application by the Customer will be fit for the intended purpose of the Services;
(b) it does not engage in any business (or plans to engage in a business) that competes with the Supplier in the provision of services similar to the Services.
3.11 The Supplier will be entitled to rely on the warranties provided by the Customer in accordance with the preceding clause and also upon the accuracy of all information provided by the Customer.
3.12 The Supplier may reject any Customer Application in its sole absolute discretion or cancel any Contract at any time prior to delivery of Services with no liability to the Customer.
Provision of Services throughout Term
4.1 If the Supplier agrees to supply Services to the Customer, the Supplier will, subject to the Customer complying with the terms of the Contract (which will include these T&Cs), use reasonable endeavours to continue providing the Services without material disruption during the Term.
4.2 Despite the preceding clause, the Customer acknowledges there are inherent limitations associated with using the internet and the supply of electronic services over the world wide web. The Supplier is not in breach of the preceding clause if Services are temporarily disrupted or delayed whether due to the Supplier’s error or otherwise.
4.3 The Supplier may modify the Services or features associated with the Services at any time, in its sole absolute discretion. The Supplier shall use reasonable endeavours to give prior notice of impending modification of the Services to the Customer. The Customer agrees that, by continuing to use the Services after modifications have been made by the Supplier, the Services continue to be fit for the purposes intended by the Customer notwithstanding they may differ in nature to the Services available at the time the Customer made its Application.
4.4 The Customer will examine any Services immediately on delivery by the Supplier and will be deemed to have accepted the Services unless the Customer provides immediate written notice to the Supplier that the Customer is dissatisfied with the Services.
5.1 The Price is exclusive of all taxes (however described, including, but not limited to goods and services tax) arising from the supply of the Services or associated Goods and the Customer agrees to pay the taxes, in addition to the Price, and acknowledges the Supplier is authorised to include those taxes as part of any payment transaction that occurs pursuant to the Contract.
5.2 If the Customer is registered for goods & services tax in Australia, the Supplier shall issue a tax invoice to the Customer in respect of any goods and services tax applying to the supply made by the Supplier to the Customer pursuant to the Contract.
5.3 During the Term, the Price shall be paid in advance each 30 days in respect of the Services to be supplied (and if applicable, any associated Goods to be provided) by the Supplier for the following 30 day period.
5.4 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to the Supplier for any reason.
Credit Terms and other charges
6.1 The Customer must make full payment of the Price before the Supplier supplies Services to the Customer unless the Supplier has granted credit terms to the Customer in which case the Customer must make full payment of the Price and any other amounts payable to the Supplier within 14 days of the date of the invoice.
6.2 The Customer must reimburse the Supplier for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by the Supplier to recover money from the Customer.
6.3 The Supplier may charge monthly compound interest on any overdue amounts owed by the Customer at a rate of 10% per annum above the Reserve Bank of Australia’s cash rate target.
Risk and Title
7.1 The risk in Goods passes to the Customer immediately on the collection of the Goods by the Customer or delivery of the Goods by the Supplier.
7.2 If provision of the Goods is not included in the Price, the Customer will not receive title to Goods until the Customer makes full payment for the Goods and any other amounts payable to the Supplier.
7.3 Until title in the Goods passes to the Customer in accordance with these T&Cs, the Customer will:
(a) be only a bailee of the Goods;
(b) ensure the Goods are kept separate and identifiable from other goods;
(c) not grant any charge over, or interest in, the Goods to any third party;
(d) return any Goods to the Supplier immediately on request;
(e) authorise the Supplier or any agent of the Supplier to enter any land and premises owned, occupied or controlled by the Customer where the Goods are located and take possession of the Goods; and
(f) hold the proceeds from any sale or disposal of the Goods on trust for the Supplier.
The Supplier will not be liable to the Customer for any failure to supply the Services, or delay in otherwise performing the Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the Supplier’s reasonable control and if any such failure or delay continues for a period of 30 days the Supplier may, in its sole discretion, terminate any affected Contract.
Confidential Information and Intellectual Property
9.1 The Customer will not use, or disclose to any third party, any Confidential Information disclosed to the Customer.
9.2 No supply of Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Services.
10.1 The Supplier does not warrant that any Goods or Services supplied are fit for any purpose whether or not made known by the Customer or any third party to the Supplier or any member of the Supplier’s Personnel.
10.2 The Supplier excludes all express and implied conditions and warranties in relation to any Goods or Services supplied except those conditions or warranties that cannot be excluded by law.
10.3 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Trade Practices Act 1974 (Cth) or any Fair Trading Act of any State or Territory of Australia except to the extent permitted by such Acts.
11.1 The Supplier’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Goods or Services will be limited to the amount of the Price, including any additional amount paid for Goods, if applicable.
11.2 The Supplier will not be liable to the Customer or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
11.3 The Supplier may, from time to time, recommend goods or services provided by third parties and for the avoidance of doubt, the exclusion of liability in the preceding clause includes any Liability or Claim arising from goods or services obtained by the Customer from those third parties.
The Customer indemnifies the Supplier and each member of the Supplier’s Personnel on a full and continuing indemnity basis from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the Customer’s breach of these T&Cs or any Contract;
(b) the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
(c) the Goods and/or Services not being fit for any particular purpose;
(d) any tests conducted by a third party in relation to Goods and their Services;
(e) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Goods or Services;
(f) the Customer or any member of the Customer’s Personnel purporting to cancel a Contract when not entitled to do so.
13.1 The Contract may be terminated by the Supplier at any time upon the provision of 7 days notice to the Customer, unless the Customer is in breach of the Contract, in which event the Supplier may terminate the Contract immediately without prior notice.
13.2 The Contract may be terminated by the Customer at any time during the period of 30 days after a debit charge is made against the Customer’s debit card or credit card by the Supplier. The Customer must give notice of termination online by cancelling its subscription in the account information page on the Supplier’s Website.
13.3 Any part of the Price paid in advance at the time the Contract is terminated is forfeited to the Supplier and is not refundable to the Customer under any circumstances.
14.1 The Customer warrants it is the sole legal and beneficial owner of the Customer Data and does not infringe any third party’s Intellectual Property Rights, or other property rights by providing that data to the Supplier in the course of obtaining the Services.
14.2 Keyword Data and associated search engine marketing data generated as part of the supply of Services is only accessible to users entering the Supplier’s Website with the Customer’s password and username.
14.3 The Keyword Data and associated search engine marketing data generated as part of the supply of Services is not shared or aggregated in any way either internally with other customers, or with any other third party.
14.4 The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and Intellectual Property Rights or right to use of the Customer Data and the Supplier shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
14.5 While the Supplier may, in its sole absolute discretion, backup some Customer Data to assist in the supply of the Services, there is no ongoing obligation for it to do so. The Customer acknowledges and agrees the Supplier has no obligation to store, retain or backup the Customer Data.
14.6 Any Customer Data held by the Supplier may be deleted upon termination of the Contract.
15.1 These T&Cs or any Contract may only be amended with the Supplier’s express written agreement.
15.2 Any waiver by the Supplier must be express and in writing.
15.3 The Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the Supplier.
15.4 If any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply.
15.5 The Supplier may assign any rights or obligations under any Contract or these T&Cs or any Contract to any third party.
15.6 The Customer may only assign any rights or obligations under any Contract or these T&Cs or any Contract with the Supplier’s prior written consent.
15.7 The Customer must not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way;
(b) modify or make derivative works based upon the Services;
(c) embed the Service as a “iframe” or “frame” from within another application; or
(d) reverse engineer or access the Services in order to design competitive services, goods or services using similar ideas, features, functions or graphics, or copy any ideas, features, functions or graphics.
15.8 These T&Cs and any Contract will be governed by the laws of the state of Queensland in Australia and the parties submit to the jurisdiction of the courts of Queensland and the Federal court of Australia.
15.9 The Contract contains the entire agreement between the parties and applies to the exclusion of any other arrangements or representations made by the Supplier.
15.10 In the case of Customers supplied with any Beta Services, the Customer acknowledges those Beta Services are made available to the Customer for the purposes of evaluation and feedback. The Customer acknowledges that Beta Services may contain bugs, errors and other problems and is provided to the Customer on an “as-is” basis. Without limiting the generality, operation or scope of clauses 10 and 11, the Supplier disclaims any warranty or Liability obligations to the Customer of any kind with respect to the Beta Services. The Customer acknowledges the provision of Beta Services to the Customer is conditional upon the Customer complying with the Supplier’s feedback requirements during Customer’s use of the Beta Services. By participating in the Supplier’s Beta program the Customer agrees to receive related correspondence and updates from the Supplier. In the event the Customer requests to opt-out from such communications, the Customer’s participation in the Supplier’s Beta program and the Supplier’s supply of the Beta Services may be cancelled in the Supplier’s sole absolute discretion. The Customer also hereby acknowledges that the Supplier has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and the Supplier has no express or implied obligation to the Customer to announce or introduce the Beta Services. During the currency of the Supplier’s Beta program, the Customer hereby grants to the Supplier a perpetual, royalty-free worldwide license to use and/or incorporate feedback provided by the Customer into the Supplier’s Goods or Services (including the Beta Services) at any time at the sole discretion of the Supplier.
15.11 Any trial periods, coupons, credits or promotional offers (“special offer”) granted by the Supplier are provided in the Supplier’s sole absolute discretion and may be discontinued or modified at any time without prior notice. A Customer is not entitled to receive more than one special offer concurrently.
15.13 The Supplier may change the T&Cs from time to time by notice to the Customer and by continuing to pay the Price and use the Services, after receipt of that notice, the Customer acknowledges the Contract will incorporate the modified T&Cs.
15.14 The Customer acknowledges that all Services are supplied by the Supplier to the Customer on the basis of a non-exclusive, non-transferrable licence granted by the Supplier.
In these T&Cs:
(a) the headings will not affect interpretation of these T&Cs;
(b) the singular includes the plural and vice versa, and a gender includes other genders;
(c) any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to a party to a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, corporation or instrumentality or any other entity;
(g) a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;
(h) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(i) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(j) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs or any part of these T&Cs; and
(l) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.