Terms and Conditions

 

2009/07/01

 

This Agreement is made between: WebTop Pty Ltd (ACN 135 467 300) ("Company")

And: XYZ Pty Ltd (ACN XXX XXX XXX) ("Client", "User", "Partner" or "Reseller")

 

In order to become a Reseller or Partner of the Company, or a Client or User of any of the Company's services, you must agree to the following terms and conditions. Your agreement to these terms will be indicated to use by sending to us an application, duly completed confirmation (if requested), completion of an order form, or commencement of reseller activities, partner activities or use of any of the Company's services, whichever occurs first.

 

The following terms of business apply to any or all of the services to be provided by the Company from time to time, including domain name registration, web site hosting, email, spam and virus protection, search engine optimisation and search engine marketing services, as well as any services provided by the Company under any reseller or partner agreement.

  • Server means the computer server equipment operated by us, or used by us, in connection with the provision of the Services.
  • Web Site means the area on the Server allocated by the Company to you for use by you as a site on the Internet.
  • Secure Web Page means the web page operated and located on the Server which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded, because the page is encrypted.
  • Search Engine Optimisation means any service which is designed to assist your Web Site gain a higher listing in the Search Engine result, including but not limited to site optimisation, content optimisation, advice, pay-per-click campaigns and management services.
  • Terms of Payment means 14 days from date of invoice.
  • Standard Published Rates are as follows:
    • $16.50 including GST per 6 minute unit or part thereof reasonably spent (the equivalent of $165 per hour including GST).

 

Domain Name Registration Terms and Conditions

  • We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
  • Both the registration of the domain name and its ongoing use are subject to the relevant naming authority's terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
  • We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
  • We give no warranty or representation that your domain name is or will continue to be available for your use or that no domain name is or will be registered which conflicts with your domain name or which otherwise affects your use of your domain name.
  • The Company shall be entitled to withhold the release of any domain name to another provider or "tag holder" unless full payment of all amounts due to us at that time for whatever reason has been received by us.
  • If payment is not received for any domain name, the Company may delete or retain the domain for further sale.

 

Web Hosting Terms and Conditions

  • We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that: a. you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation; b. you will not knowingly or recklessly post, link to or transmit any material: i. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or ii. containing a virus or other hostile computer program; iii. that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and c. you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
  • You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), the Company reserves it right to terminate services without prior notification.
  • You warrant, undertake and agree that:
    • a. any transactions within your Web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
    • b. the information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
    • c. you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web Site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
  • Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
  • We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and the company expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.
  • You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified in the Service. All excess data may be charged at our current published rates, at our discretion. These charges, if any, will fall due at the completion of the calendar month on our normal trading terms. The Company will provide an online interface allowing authorised users to monitor website data traffic.
  • You are not permitted to resell any of the Company's services without the express permission of the Company.  Reselling of any of the Company's services will bring you into default unless otherwise agreed.

 

Web Design Terms and Conditions

  • You agree that in the provision of web design services by us we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and content, provided to us by you
  • You are responsible to keep a copy of any existing Web Site which we may replace pursuant to the provision of web design services including all databases and hosted files. Netregistry can provide an archival solution for the existing website at our standard commercial rates.
  • We are not responsible for the contents of any Web Site we design for you, and upon publication you must satisfy yourselves that the Web Site will comply with all applicable laws, and codes of practice governing the use of Web Sites and related services. This includes the intellectual property and copyright ownership of all material that you have provided to us. The Company is similarly not responsible for your subsequent use of the site and your compliance of various commonwealth and state legislations.
    • a. All website content must be provided by you within 1 calendar month of invoice (project commencement). If your data is not supplied within 1 month, the Company reserves the right to issue a 30 day final submission notice. If no data is supplied within 2 calendar months of invoice, the project may be cancelled and subject to cancellation fees, at the Company's discretion.
    • b. If your data is not complete within 1 month, the Company reserves the right to place your project on administrative hold, and charged according to agreed rates as though the site has been put live. Should your data not be complete within 3 months of invoice, a 30 day final submission notice may be issued. Upon expiry, we may terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
  • You must provide complete feedback within 7 calendar days during design concept and production review. If no feedback is provided within this time, the Company reserves the right to move forward with the project, assuming no changes have been requested and that work is accepted in its current form. Any changes requested past this time are subject to our current standard published rates.
  • You may request an administrative hold of your project for up to 6 months at a cost of $100 per month. We will stop working on the project until you advise us that you are ready to move forward. If you exceed 6 months of the project being held, unless otherwise agreed in writing, we may terminate the project without notice and all monies paid by you to us will be forfeited, with no refunds available.
  • If you are unhappy with your site design, you may request additional layout concepts, subject to our current standard published rates, with full payment required upfront.
  • You are responsible for the digital rights to any image that you supply to us in the course of a project and beyond.  You are responsible for the digital rights for any image on your site, whether provided by the Company or otherwise, in the course of a project and beyond.
  • Once your website has been published, the Company will review and repair any pre-existing code errors and/or bugs in the website if reported within 30 days of publishing. Any cosmetic changes or alterations, or code errors reported outside of this time period will be subject to additional charges at our current standard published rates.
  • 100% upfront payment is required for static website design services, unless otherwise agreed upon in writing. If cancellation occurs before design is selected and site is put into production, a cancellation fee of $330 (inclusive of GST) will apply. Once a site is placed into production, cancellation fee will be 100% of project cost and no refunds will be available.
  • 50% upfront payment is required for dynamic website design services, with the balance required after design selection before we place the project in production, unless otherwise agreed upon in writing. If cancellation occurs before design is selected and site is put into production, a cancellation fee of $330 (inclusive of GST) will apply. Once a site is placed into production, cancellation fee will be 100% of project cost and no refunds will be available.
  • While providing assistance in the obtaining of a merchant facility, the Company provide no guarantees that a bank will provide a merchant facility for your online store.
  • The Company warrants the software used as stable and secure at the time of delivery. Post delivery maintenance of the security of the site is the responsibility of the client or their agent, and not of the Company.

 

Search Engine Optimisation Terms and Conditions

  • Whilst we will try to improve the position of your Web Site in the Search Engine results in response to a search request, we do not warrant that this effort will be successful.
  • We cannot be held responsible for any changes to the position of your Web Site in the Search Engines results pursuant to the provision of search engine optimisation services by us.
  • Whilst we will try to utilise your monthly advertising budget, we do not warrant that this will always be possible, and at times may exceed your monthly advertising budget, and in the event of a shortfall in the use of your monthly advertising budget in any one month, you agree to our increasing future monthly budgets to compensate.
  • Monthly budgets will be updated, and it is up to you to ensure that your advertising account has sufficient funds for the Company to continue with its services to you.  If there are insufficient funds in your account, the Company reserves the right to suspend or cancel the service, and you agree to compensate the Company for any shortfall in your account.
  • Whilst we will try to improve your business exposure, we cannot be responsible for nor do we warrant that the provision of search engine advertising services will either increase third party traffic to your Web Site or that such traffic will increase business sales or enquiries.

 

General Terms and Conditions

 

Service Availability

We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.

 

Intellectual property rights and other consents

You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant financial institutions.

 

Indemnity

You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.

 

Termination

  • We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due.
  • We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
  • On termination of this agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense (at our standard published rates), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we see fit.
  • If you wish to terminate your account with the Company, you must give the Company 28 days notice and do so in writing, otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Specifically, the Company will not accept verbal instructions to terminate an account.
  • On receipt of your cancellation request, and after the notice period, the Company will cancel your service at the first available opportunity.
  • There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.

Payment

  • All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our Web site and shall be due and payable according to our standard terms.
  • The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you.
  • If you fail to make payment within the terms of this agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 12% per annum, from the due date of the payment.
  • Upon provision of a credit card account, you give us authorisation to automatically debit your credit card for all charges on issuance of a valid invoice.

Late Payment Fee

  • If you exceed our thirty (30) days credit terms, you will be charged an $11.00 (inclusive of GST) late payment fee. A revised invoice will be sent to your nominated e-mail address.

Exclusion and Limitation of Liability

  • TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
  • Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
  • In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.

Important Note

  • In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:
    • a. in relation to goods
      • i. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
      • ii. the repair of the goods or payment of the cost of having the goods repaired;
    • b. in relation to services
      • i. the supplying of the services again; or
      • ii. The payment of the cost of having the services supplied again as in each case we may elect.

Notices

  • Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.

Severability

  • If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.

Assignment

  • The benefit of this agreement may be assigned by us, but not our obligations to you - to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.

Changes to Terms and Conditions

  • We may change the terms and conditions of this Agreement at any time. Details of our current terms are available here on our website at http://www.webtop.com.au.

Entire Agreement

  • These terms and conditions constitute the entire agreement between the Company and you, and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the contract unless it is in writing and signed by authorised representatives of you and the Company.

Entire Agreement, Governing Law

  • This agreement shall be governed by the laws in force in the state of New South Wales. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.

Notifications and Communications

  • In addition to general Account, Billing and Service communications, the Company will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by sending an email to unsubscribe@webtop.com.au or by following 'unsubscribe' instructions contained within the communcitions.

  • You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.

  • Please review our Privacy Statement for full details of our use of personal data.

 

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