Terms of Services.
Terms of Service
This page explains our terms of service, which contains important information about your legal rights. When you use The Black Agency, you’re agreeing to these terms.
We’ve tried to make this Agreement fair and straight forward, but feel free to contact us if you have any questions or suggestions.
WHEREAS, the Company is engaged in the business of providing online marketing for via a template based website (hereinafter “Services”); and WHEREAS, the Buyer is interested in purchasing the Company’s services of providing online marketing via a template based website; and
WHEREAS, the Buyer recognizes that this is not for the sale of a website and that all websites remain the sole property of The Black Agency.
This Agreement for will continue in full effect until either party terminates the Agreement by giving thirty (30) days prior written notice to the other party. This Agreement has a minimum term of 12 months, and can only be terminated within 12 months of signing the Agreement by payment of an amount to the Company such that the Company has received from the Buyer in total fees equivalent to three months’ fees.
2. Your Content
When you upload content to The Black Agency, you still own it. You do, however, give us permission to use it in the ways necessary to provide our services. For example, when you upload a photo, you give us the right to save it, and also to display it on your site at your direction. We also may promote or feature your site, but you can opt out if you don’t want us to do that.
2.1. Featuring Your Site. We may use in perpetuity, worldwide and free of charge, any version of Your Sites (as defined below), or any portion thereof, for the limited purpose of The Black Agency marketing and promotional activities. For example, we may feature Your Sites on our Templates page, or on our social media accounts. This can result in improved traffic to Your Sites. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to Your Sites, and any right of inspection or approval of any such use of Your Sites. If you don't want Your Sites featured, you can opt out at anytime via the contact page or by contacting Customer Care.
2.2. Your User Content Stays Yours. Users of the Services may provide us with content, including without limitation text, photos, images, audio, video, code and any other materials (“User Content"). Your User Content stays yours. These Terms don't give us any rights to User Content, except for the limited rights that enable us to provide, improve, promote and protect the Services as described herein.
3. Your Responsibilities
You’re responsible for the content you publish on your sites, and you vouch to us that it’s all okay to use. We also ask that you follow our rules, and don’t do anything illegal on here. And keep in mind that some of what you upload can be viewed publicly, so share responsibly.
3.1. Only Use Content You’re Allowed To Use. You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content via the Services. If we use your User Content in the ways contemplated in this Agreement, you represent that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights. Content on the Services may be protected by others' intellectual property or other rights, so please don't copy, upload, download or share content unless you have the right to do so.
4. Third Party Services
The Services are integrated with various third party services, applications and sites (collectively, “Third Party Services”) that may make available to you their content and products, such as domain and email services, or marketplaces to connect customers and vendors. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof (except where prohibited by law).
4.1. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites.
5. Services and Fees
The Buyer agrees to pay The Black Agency all fees associated with the Buyer’s account. The first payment being due on the first day the buyer registers with The Black Agency. The buyer agrees to pay all fees associated with the Buyer’s account each month until the Agreement is terminated.
5.1. Payment shall be made to the Company via Electronic Subscription unless otherwise notified by The Black Agency. The Black Agency will charge the credit card on file or deduct the fee from Buyer’s electronic payment account until the Agreement is terminated.
5.2. In addition to any other right or remedy provided by law, if the Buyer fails to pay for the Services when due, the Company has the option to treat such failure as a material breach of this Agreement, and may terminate this Agreement and/or seek legal remedies. The Company will give the Buyer notice of the payment failure and the Buyer’s website will be taken down if the payment is not received within 10 days of the notice being given.
6. Your eCommerce
We offer tools to help you conduct eCommerce activities on The Black Agency, such as selling your products or collecting donations. How you conduct your eCommerce activities is your responsibility, and we’re not liable for it. Also, be sure to follow our eCommerce rules, or we may terminate your account. Finally, if you’re using a third party to process payments for your eCommerce activities, remember that your relationship is with them, not us.
6.1. Taxes. You're solely responsible for: (a) all Taxes and fees associated with Your eCommerce, including without limitation any Taxes related to the purchase or sale of products or services in connection therewith; (b) collecting, reporting and remitting required Taxes to relevant government authorities; and (c) informing your End Users of required Taxes, and providing them with invoices as required by law. You also agree that any tax estimates, reporting or related materials that we may provide via the Services are for illustration purposes only, and you may not rely on them to comply with your tax obligations.
6.2. Fulfillment And Delivery. You're solely responsible for fulfilling and delivering your products and services to your End Users.
6.3. Claims and Warranties. You're solely responsible for any claims or warranties you make in connection with Your eCommerce.
6.4. Customer Service. You're solely responsible for handling any comments or complaints related to Your eCommerce, including without limitation any issues related to payments, promotions, refunds or chargebacks. You agree to provide accurate and complete contact information on Your Sites so that your End Users can submit comments or complaints to you.
The Company shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner. The Company shall meet the standards that other similar companies in the Company’s community and region are held to, and will provide a standard of care equal to, or superior to, care used by service providers similar to the Company on similar projects.
8. Word Product Ownership
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by the Company in connection with the Services will be the exclusive property of the Company. Upon request, the Buyer will execute all documents necessary to confirm or perfect the exclusive ownership of Company to the Work Product. The Company is the owner of the website, and the Buyer is purchasing a service to use a template website that will be returned to the Company after the Agreement is terminated. Buyer agrees that any text, graphics or material copied from the Company by the Buyer onto a new website will result in a charge of $750 per month per website copied onto or reactivation of this agreement.
Buyer shall hold and keep the confidentiality of the Confidential Information of the Company and shall not use or disclose the Confidential Information to any third party. “Confidential Information” shall mean any financial information, trade secrets, know-how, inventions, products, designs, methods, techniques, systems, processes, software programs, works of authorship, business plans, customer lists, projects, plans, proposals and any other information of the Company. This provision will remain in effect after the termination of this Agreement.
The occurrence of any of the following shall constitute a material default under this Agreement:
10.1. The failure to make a required payment when due;
10.2. The insolvency or bankruptcy of either party;
10.3. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency; or
10.4. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
11. Remedies upon default
In addition to any and all other rights a party may have in accordance with the law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving the notice shall have ten (10) days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time periods shall result in the automatic termination of this Agreement. The occurrence of any of the following shall constitute a material default under this Agreement.
Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or 48 hours after posting, first class postage fully prepaid, addressed as follows:
(a) To Company: The Black Agency, Southbank, Melbourne.
(b) To Buyer: Address listed on account of buyer
or any other address as any party may, from time to time, designate by notice given in compliance with this section.
13. Force Majeure
13.1. If a Force Majeure Event occurs, the party that is prevented by that Force Majeure Event from performing any one or more obligations under this agreement (the “Nonperforming Party”) will be excused from performing those obligations, on condition that it complies with its obligations under section
13.2. For purposes of this agreement, “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this agreement, other than an obligation to pay money, on condition that that party that uses reasonable efforts to do so, except that a Force Majeure Event will not include any a strike or other labour unrest that affects only one party, an increase in prices, or a change of law.
13.3. Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this agreement.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules Chartered Institute of Arbitrators. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree as to the selection of arbitrator, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The Arbitration Settlement Agreement shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
15. Disclaimer of warranty
The site, services and materials are provided “as is,” “as available,” “with all faults” and without any warranty of any kind, express or implied. to the fullest extent permissible under applicable law, The Black Agency and its licensors disclaim all warranties of any kind, either express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. without limiting the foregoing, neither The Black Agency nor its licensors warrant that access to the site, the materials and/or the services available on or through the site will be uninterrupted or error-free, or that defects, if any, will be corrected; nor does The Black Agency or its licensors make any representations about the accuracy, reliability, currency, quality, completeness, usefulness, performance, security, legality or suitability of the services, the materials or the site. you expressly agree that your use of the site and your reliance upon the services and/or the materials is at your sole risk. in addition, The Black Agency is not responsible, and makes no representations or warranties for the delivery of any messages (such as emails, posting of answers or transmission of any other user generated content) sent through the site to anyone.
In addition, you acknowledge and agree that any data, information, content or materials contained in or made available in connection with the services is not intended as a substitute for, the knowledge, expertise, skill and judgment tax, legal or other professionals. the services do not provide tax or legal advice. you are responsible for obtaining such advice.
Further, the and its licensors make no representation or warranties that the services or The Black Agency aerials or the site are appropriate or available for use in all geographic locations. if you use the site, the services or the materials outside Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. neither The Black Agency nor any third party providers, partners or affiliates warrant that the site, its servers the materials or the services or any e-mail sent from the site or any third party providers, partners or affiliates are free of viruses or other harmful components.
16. Limitation of liability
The Black Agency is not liable to you or any other person for damages of any kind, including without limitation any punitive, exemplary, consequential, incidental, indirect or special damages (including, without limitation, any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) arising from or in connection with use of the site, the services, the materials, user content, the commercial products or any third party user generated content available on or through the site, whether under a theory of breach of contract, negligence, strict liability, malpractice or otherwise, even if The Black Agency has been advised of the possibility of such damages. the user hereby releases The Black Agency and holds The Black Agency and its parents, subsidiaries, affiliates, licensors, and their officers, directors, trustees, affiliates, subcontractors, agents and employees, harmless from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of the services, materials, site, your content, commercial products or any third party user generated content available on or through the site. the user hereby waives the provisions of any law limiting or prohibiting a general release.
17. Exclusive Remedy
In the event of any problem with the site, the services, the materials, the user agrees that its sole and exclusive remedy is to cease using the site, the services and the materials. under no circumstances shall The Black Agency, its affiliates, or licensors be liable in any way for the use of the site by the user, the services, the materials, the user's content, its commercial products or third party user generated content available on or through the site, including, but not limited to, any errors or omissions, any infringement of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of, or related to, the use of the site, the services, the materials, your content, the commercial products or any third party user generated content available on or through the site. where the exclusion of implied warranties or limitation of liability for incidental or consequential damages are not permitted by law, then the exclusions set forth above may not apply to the user.
You agree to indemnify, hold harmless, and defend The Black Agency and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively “Indemnified Parties”) from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys’ fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or the Materials, (ii) your Content, or (iii) any commercial products you offer on or through the Site or using our Services. This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defence and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
Neither party may assign or transfer this Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld.
21. Entire Agreement
This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. Any amendments to this Agreement must be in writing and signed by the party against whom enforcement of that amendment is sought.
This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
24. Waiver of contractual right
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
25. Separate Counsel
The Buyer hereby expressly acknowledges that it has been advised that it has not been represented by the Company’s lawyer in this matter and has been advised and urged to seek separate legal counsel for advice in this matter.
26. Further Action
The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purpose of the Agreement.
27. Law Governing
This Agreement shall be governed by and construed in accordance with the laws of Australia.