In order to become a user of any Services provided by The Web Company or its associated businesses, you must agree to the following terms and conditions. Your agreement to these terms will be indicated to us by sending to us an application or use of any Services provided by The Web Company, whichever occurs first.
The following terms of business apply to any or all of the Domain Name Registration, Website hosting, Email hosting, Search Engine Optimisation, Search Engine Advertising and Secure Web Page (SSL) Services to be provided by The Web Company to you from time to time. Server means the computer server equipment operated by us in connection with the provision of the Services. Website means the area on the Server allocated by The Web Company to you for use by you as a site on the Internet. Secure Web Page (SSL) 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 Website gain a higher listing in the search engine results.
Special Terms & Conditions
DOMAIN NAME REGISTRATION
1. 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.
2. If your application is deemed fraudulent through a fraud detection and prevention mechanism in the domain registration process, we may require the registering party to supply Photo Identification to verify their identity. Accepted Photo Identification methods are Passport or current Drivers License.
3. 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.
4. 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.
WEBSITE & EMAIL HOSTING
5. 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.
6. 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.
7. You warrant to us that you will only use your assigned Website 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 party to, use the Server in violation of any law or regulation; b. you will not knowingly or recklessly post, link to or transmit: ; i.; any material that is unlawful, threatening, abusive, harmful, malicious, libellous, defamatory, obscene, pornographic, profane or otherwise objectionable in any way; or ii.; any material containing a virus or other hostile computer program; iii.; you will not post, link to or transmit any material 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, firm or company under the laws of any jurisdiction; and iv.; 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.
8. 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 misquoting or any other failure of Email. In the event of deliberate transmission of unsolicited commercial Email (UCE), The Web Company reserves its right to terminate Services without prior notification.
9. 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.
10.; You warrant, undertake and agree that: a. any transactions within your Website which are contracts for the sale of goods or Services will be between you as the merchant and your 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 Website will comply with all applicable law, and codes of practice governing the use of Websites 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 Website) 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.
11. 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.
12. You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified in the Service. All excess data will be charged at the rate of 5.5c/MB to the nearest whole MB. These charges will fall due at the completion of the calendar month on normal trading terms of 28 days from invoice. We will provide an online interface allowing authorised users to monitor Website data traffic.
SEARCH ENGINE OPTIMISATION
13.; Whilst we will try to improve the position of your Website in the Search Engine results in response to a search request, we do not warrant that this effort will be successful.
14. We cannot be held responsible for any changes to the position of your Website in the Search Engines results pursuant to the provision of Search Engine Optimisation Services by us.
15. By participating in the SEO program, your site will be updated with recommended links as part of our Link Building program. You are responsible for reviewing these changes and advising us to remove any which you deem are not suitable. We will endeavour to remove any links you nominate within 24 working hours.
16. The sale of Search Engine Optimisation Services is final, and no refunds or credits are available upon commencement of the program.
17. The SEO program can be placed on hold for up to a maximum of 3 months. Beyond this point billing will resume as per the original outlined billing period / fee. If you wish to place the program on hold for a period that exceeds 3 months, then you will need to cancel and re-subscribe at a later date.
18. Changes to the Website that have not being recommended by an Online Marketing Consultant are not included in the Service fee and may attracted an additional charge at our standard hourly rate.
SEARCH ENGINE ADVERTISING
19. We will make our best endeavours to use your monthly advertising budget responsibly. Fluctuations in search traffic mean we cannot guarantee it will always be spent in its entirety. Underspend from one month will be rolled over into a future month.
20. We do not offer refunds or credits for other Services of your unspent monthly budget.
21. The monthly Ad Spend budget you have agreed to will be charged each month in advance, regardless of actual Ad Spend in the previous month. You may vary this plan up or down in advance, without penalty, to suit your marketing needs. This cannot be varied after billing has commenced for the period.
22. Whilst we follow best practice to bring qualified traffic to your Website, we do not guarantee that Search Engine Advertising Services will increase third party traffic to your Website or that such traffic will increase business sales or enquiries.
23. Setup fees for Pay-Per-Click Setup, Management, Ad Spend and Landing Pages are payable in advance. Setups and Ads will not commence serving until the appropriate invoicing is paid in full.
24. Payment terms and payment plans are not available and invoicing is not retrospective.
25. Termination: should you wish to suspend the Service after the initial contract period (3, 6 or 12 months), it must be cancelled by notifying us in writing at least one (5) business days before the end of the current monthly billing cycle, otherwise this agreement will continue from month to month. The standard monthly billing cycle starts on the day that your Ads commenced serving and concludes one day prior in the following month. Instructions in relation to the operation of the Search Engine Advertising Services, from the customer to The Web Company will be by way of email and no verbal instruction will form an amendment, alteration, direction or consent in any matter. No refund or credit for other Services will be provided for any outstanding days of Management or Ad Spend for the remainder of the current monthly billing cycle.
26. We do not manage Google Adwords inside existing accounts. If you have an existing Adwords account, we will suspend it at the same time as your new account goes live. It can take Google some weeks for billing on your original account to be finalised.
27. Hosted Application means a software application or tool which is accessed and used, including the saving and retrieval of data, by logging onto the Servers of the software provider via the Internet. In this section, the Supplier means the third-party supplier and host of the Hosted Application.
28. You acknowledge that The Web Company is not the owner of the Hosted Application, but is an authorised reseller of it. By ordering this Service from us, you have confirmed your acceptance of the End User Agreement (the EUA) that comes with and is displayed in the Hosted Application, between you (the End User) and the Supplier. Your entire rights and remedies in relation to the operation of the Hosted Application, including any errors, bugs, faults or defects are as expressed in the EUA with the Supplier and The Web Company has no liability or obligation to you apart from what is stated in these The Web Company terms and conditions (agreement).
29. The Web Company hereby grants to you a non-exclusive, non-transferable right to use the Hosted Application for the duration of this agreement.
30. Your right hereunder to use the Hosted Application is also subject to the obligations related to usage set out in the EUA.
31. The Web Company does not represent, warrant or guarantee that the Hosted Application will be uninterrupted, continuous or error-free or that defects, errors or bugs will be corrected by the Supplier.
32. You acknowledge that the Hosted Application is hosted by the Server of a third-party supplier. The Web Company makes no representations, warranty, or guarantee as to the reliability of the Hosted Application or the ability to access the Hosted Application or retrieve data therefrom at all locations and at all times.
33. Apart from technical support in relation to activating the Hosted Application, The Web Company will not provide any user support on managing the internal features of the Hosted Application.
34. You hereby permit The Web Company’s disclosure to the Supplier of information necessary to identify the Hosted Application purchased, the date of purchase, the duration of your right hereunder to use the Hosted Application and the amount(s) paid by you.
General Terms & Conditions
The following terms and conditions apply to all online Services provided by The Web Company as set out below:
35. 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.
36. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
37. In addition to general Account, Billing and Service communications, The Web 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 following the ‘unsubscribe’ instructions contained within the communications.
38. 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.
INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
39. 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.
40. We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due. We may suspend all Services within an account prior to termination should any invoice in the account be outside of our trading terms.
41. 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.
42. We may also terminate this agreement with immediate effect if you fail to comply with the End User Agreement (EUA) of a third-party supplier (Supplier) of Software or a Hosted Application.
43. On termination of this agreement (in relation to Website hosting) we shall be entitled immediately to block your Website 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 ($150 per hour), 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 Website as we think fit.
44. On termination of this agreement we shall also be entitled to immediately cease any of our other Services to you (apart from Website hosting) without holding any backup data for retrieval by you.
45. Without limiting the section below on our Exclusion and limitation of liability, The Web Company will not be liable to you for any cost, expense, damage or loss whatsoever for terminating this agreement.
46. If the Supplier seeks to terminate your use of a Software or a Hosted Application for reasons other than your non-compliance with an EUA or these terms and conditions, The Web Company will use reasonable endeavours to honour the remaining period of any then current and existing right hereunder for you to use that Service but The Web Company will not otherwise be obligated to continue the Service if this is not possible or viable due to events beyond the reasonable control of The Web Company.
47. The Web Company shall not be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is due to termination of access to the Hosted Application or to Software by the Supplier or a change by the Supplier to the conditions of supply thereof.
48. If you wish to terminate any or all Services with The Web Company, you must do so by contacting us 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 Web Company will not accept verbal instructions to terminate Services.
49. In the event of customer requested cancellation of a renewed Service, The Web Company will complete the cancellation request to your Service at the first available opportunity, however we acknowledge the date of lodgement of the cancellation request (where we have provided a receipt ID) as the date of cancellation. Services are required to be cancelled prior to renewal, for cancellations submitted after the scheduled date of renewal there are no credits and no refunds.
50. 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 Website and explicitly on the invoice shall be due and payable within thirty (30) days of receipt of our invoice for yearly subscription Services therefore. Monthly subscription Services require payment within 7 days of invoice issue.
51.; 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.
52. 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.
53. 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.
EXCLUSION AND LIMITATION OF LIABILITY
54. TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS 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 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.
55. Our total aggregate liability to you for any claim in contract, tort, negligence, equity 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.
56. 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, even if advised us to the possibility thereof. Nor will we be liable in any event for any damages including, without limitation, indirect, special, incidental, consequential or exemplary damages, arising out of or in connection to this agreement or the Services. 57.; In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
58. 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.
59. If any of these Terms and Conditions should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such Term or Condition shall be severed and the remaining Terms and Conditions shall survive and remain in full force and effect and continue to be binding and enforceable.
CHANGES TO TERMS AND CONDITIONS
60. We may change the terms and conditions of this Agreement at any time. Details of our current terms and conditions are available on our website. Any renewal of a Service will be in accordance with the terms and conditions in place as at that time.
61.These terms and conditions together with any document expressly referred to in them, contain the entire agreement between us relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. You confirm that, in agreeing to these terms and conditions, you have not relied on any representation save insofar as the same has expressly in these terms and conditions been made a representation and you agree that you shall have no remedy in respect of any misrepresentation (other than a fraudulent misrepresentation) which has not become a term of this agreement.
62. These terms and conditions shall be governed by and construed in accordance with Australian law and you hereby submit to the exclusive jurisdiction of the Australian Courts.