Terms & Conditions
WEBALIVE PTY LTD ABN 70 118 269 800 ("WebAlive", "We" or “Us”), is the owner, developer and distributor of the services associated with the building, management and hosting of web pages, including access to software which allows you the customer (“You”) to build and manage your (“Your”) website, and from time-to-time including additional features and upgrades and enhancements and such other services as agreed ("Services").
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Application and Variation of these Terms:
These terms and conditions are the terms on which WebAlive will provide the Services to You. These terms constitute the agreement between You and Us (“the Agreement”) in its entirety and supersede any prior agreements between You and Us in respect of the Services. We may modify these terms and conditions, (including without limitation the pricing for any of the Services), or give You notice under this Agreement, by notice on our website and/or by email. Such modifications will take effect 7 days after such notice has been provided. By accepting these terms and conditions, You also agree to accept and be bound by any changes made by WebAlive under this clause.
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Copyright:
The copyright in all reports and associated website designs, text, graphics, the selection and arrangement thereof, and all software is owned or licensed by WebAlive. All of WebAlive’s rights in this regard are reserved. Copyright in the material contained on this website and in any report subsists under the Copyright Act 1968 (Cth) Australia and, through international treaties, under the laws of many other countries.
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Terms of Agreement:
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Software products
For software products, the initial term of this Agreement shall be 12 months commencing on the date of activation. After the conclusion of the initial 12 month period, the term shall automatically renew for one month on the same day in each succeeding month. Unless notice is provided to WebAlive by You more than 10 working days prior to expiry of the initial or any subsequent term, this Agreement will automatically be extended by a further month on our then current terms and conditions. Your failure to give a notice cancelling the Services prior to the commencement of this 10 working day period will constitute acceptance by You of the next renewal.
WebAlive may cancel or elect not to renew the Services for any reason or no reason at all by delivering to You a written notice of non-renewal at least 10 working days prior to the expiry of the initial term or any subsequent term.
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Domain names
The term of the domain name licence (ie that period of time for which the licence is granted to You) will vary depending on which domain name extension (such as “.com” or “.com.au”) You purchased. Each domain name extension has a set term as specified by WebAlive. When You purchase a domain name from WebAlive You will be purchasing the domain name for the specified term, unless otherwise agreed with WebAlive.
Unless notice is provided to WebAlive by You more than 30 working days prior to expiry of the initial or any subsequent term, this licence will automatically be renewed for a period of two years for a .com.au domain, and one year for all other domains, on WebAlive’s then current terms and conditions. Your failure to give a notice cancelling the licence for the domain name prior to the commencement of this 30 working day period will constitute acceptance by You of the renewal. WebAlive may cancel or elect not to renew the licence for the domain name for any reason or no reason at all by delivering to You a written notice of non-renewal at least 30 working days prior to the expiry of the initial term or any subsequent term.
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Professional Services
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Design Packages
Each Design Package purchased by You (whether it be Silver, Gold or Platinum) has no set term. The agreement commences when payment is received and Your design brief has been lodged with Us. The agreement terminates when WebAlive (acting reasonably) determines that the website design has been customized in accordance with Your design brief. This process usually takes about 10 working days from the time You submit Your design brief.
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Search Engine Marketing
The initial term for the Search Engine Marketing Package is 12 months commencing on the date of activation. After the conclusion of the initial 12 month period, the term shall automatically renew for one month on the same day in each succeeding month. Unless notice is provided to WebAlive by You more than 10 working days prior to expiry of the initial or any subsequent term, the term will automatically be extended by a further month on WebAlive’s then current terms and conditions. Your failure to give a notice cancelling Your Package prior to the commencement of this 10 working day period will constitute acceptance by You of the next renewal.
If You purchase the SEM package WebAlive will create a Google Adwords account on Your behalf. By agreeing to these Terms and Conditions You are agreeing to be bound by the Google Ireland Limited Adwords Program Terms in relation to the operation of Your Google Adwords account. The Google Ireland Limited Adwords Program Terms can be viewed at https://adwords.google.com.au/select/TCAustralia0706.html
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Payment:
Software products
The license fees for the software products are payable by You monthly in advance by credit card only. Should You wish to cancel Your subscription within 30 days of purchase of the Software product, WebAlive will refund all of the first month’s fee. Please note that any payments of fees which relates to any additional services purchased simultaneously with the Software product (for example a Domain Name or Design Package) will not be refunded. After the expiration of the 30 days, You are not entitled to a refund of fees for early cancellation of this Agreement (unless We terminate it other than by reason of Your default).
Domain names
All fees for the duration of the licence are payable by You in advance of the relevant licence term by credit card only. You are not entitled to a refund of fees for early cancellation of this licence (unless We terminate it other than by reason of Your default).
Professional Services
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Design Packages
The full fee for each Design Package must be paid by You in advance by credit card only. We do not commence working on Your Website Design Package until full payment has been received and Your website design brief has been submitted to us. Please note that a change or alteration to concept work (“Revision”) may be subject to additional fees:
- additional hourly charges will be payable by You in respect of the Bronze Website Design Package if You require more than one Revision of the design concept;
- additional hourly charges will be payable by You in respect of the Silver Website Design Package if You require more than two Revisions of the design concept;
- additional hourly charges will be payable by You in respect of the Gold Website Design Package if You require more than three Revisions of the design concept; and
- no refund in respect of any Website Design Package will be given once You have submitted Your website design brief.
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Logo Design Packages
The full fee for each Logo Design Package must be paid by You in advance by credit card only. We do not commence working on Your Logo Design Package until full payment has been received and Your logo design brief has been submitted to us. Please note that:
- additional hourly charges will be payable by You in respect of the Bronze Logo Design Package if You require more than two Revisions of the design concept;
- additional hourly charges will be payable by You in respect of the Silver Logo Design Package if You require more than three Revisions of the design concept;
- additional hourly charges will be payable by You in respect of the Gold Logo Design Package if You require more than five Revisions of the design concept; and
- no refund in respect of any Logo Design Package will be given once You have submitted Your logo design brief.
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Business Starter Packages
The full fee for each Business Starter Package must be paid by You in advance by credit card only. We do not commence working on Your Business Starter Package until full payment has been received and Your Business Starter Package design briefs have been submitted to us. Please note that:
- additional hourly charges will be payable by You in respect of the Bronze Business Starter Package if You require more than one Revision of the logo design concept and/or any Revision of the business card layout concepts;
- additional hourly charges will be payable by You in respect of the Silver Business Starter Package if You require more than one Revision of the logo design concept and/or any Revision of the Business card layout concepts and/or any Revision of the Letterhead layout concepts;
- additional hourly charges will be payable by You in respect of the Gold Business Starter Package if You require more than one Revision of the logo design concept and/or any Revision of the Business card layout concepts and/or any Revision of the Letterhead layout concepts and/or any Revision of the PowerPoint layout concepts;
- additional hourly charges will be payable by You in respect of the Platinum Business Starter Package if You require more than one Revision of the logo design concept and/or any Revision of the Business card layout concepts and/or any Revision of the Letterhead layout concepts and/or any Revision of the PowerPoint layout concepts and/or any Revision of the With Compliments slips layout concepts; and
- no refund in respect of any Business Starter Package will be given once You have submitted Your Business Starter Package design briefs.
All additional hourly charges will be invoiced to You after completion of the necessary work and payment must be made within 14 days.
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Search Engine Marketing
The payment terms for the Search Engine Marketing (SEM) Services are as follows:
- The startup fee for the Starter SEM Package is payable by You in advance by credit card only.
- The minimum monthly fees for the SEM Package are payable by You monthly in advance by credit card only. The monthly fee balance (if any) is payable by You within 14 days of receipt of invoice.
Other services
Payment for any additional services that incur a one-off fee requires payment upfront and work will not commence until payment is received by credit card only.
If Your Account remains unpaid 7 days after the date of invoice
We may suspend or terminate the Services provided to You. Any suspension does not relieve You of Your obligation to make payments under this Agreement.
- This includes if the credit card transaction is declined. If this occurs an email will be sent to the primary email address that You have provided for us. Failure to provide us with changes to Your primary email address will not result in any extension.
- Accounts in default may be subject to an interest charge on the outstanding balance of the lesser of 1.5% per month or the maximum rate permitted by law.
- You agree, in the event of default, to pay WebAlive our reasonable expenses, including legal and collection agency fees, incurred in enforcing our rights under this Agreement. Fees are exclusive of any taxes which may be levied or assessed. Any such taxes shall be paid by You. If the whole or any part of a payment is the consideration for a Taxable Supply for GST purposes, You must pay to WebAlive an additional amount equal to the applicable GST amount with that payment and WebAlive will provide You a GST tax invoice.
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Warranties:
Certain legislation (including the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic)) may imply terms, warranties or conditions that cannot be excluded, restricted or modified ("Statutory Warranties"). Subject to the Statutory Warranties and to any other warranties specifically given by WebAlive:
- all conditions, warranties and other provisions which might otherwise have been implied into this Agreement or otherwise in relation to the Services, are excluded; and
- You acknowledge that all software (including that used to provide the Services) may have errors, and that it is therefore Your responsibility to monitor and verify the use of the Services.
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Limitation Of Liability:
Where the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of WebAlive to You is limited, at the option of WebAlive, to:
- for a claim relating to goods liability is limited to the repair or replacement of the goods or payment of the cost of having the goods replaced or repaired; and
- for a claim relating to services liability is limited to the supplying the services again or payment of the cost of having the services supplied again.
To the extent permitted by law, the liability of WebAlive to You or any other person, whether in contract, tort (including negligence), under statute or otherwise, arising out of or in any way relating to this Agreement:
- except as expressly stated in this Agreement, is excluded;
- where it cannot be excluded, is limited in total to the fees payable by You for the Services in the previous 12 months; and
- excludes liability for any indirect, secondary or consequential loss or damage or for loss of income, profits or anticipated savings or loss of opportunity.
To the extent permitted by law, You indemnify and agree to keep WebAlive indemnified against any loss or claim arising out of Your use of the Services
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Compatibility:
WebAlive will not be liable for any software or hardware issues that may reside at the client’s end that limits or interferes with the Services provided by WebAlive. These include, but are not limited to, complex networks that do not allow network traffic through to WebAlive servers including proxy servers, terminal services or ISP issues, and software conflicts on a client’s machine, not allowing the WebAlive software to be installed, used or accessed.
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WebCommerce Installation:
WebAlive’s WebCommerce installer includes the MYOB ODBC driver installer. The MYOB ODBC driver installer has the ability to disrupt any prior installations of the ODBC driver. Before installing WebCommerce, if You have any prior installations of the ODBC driver, You should take appropriate steps to back up Your data, system and files. WebAlive does not support the MYOB ODBC driver and will not accept any liability for any direct or consequential loss that may arise due to Your use of the MYOB ODBC driver.
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Design Packages
WebAlive takes no responsibility:
- for the loss of any of Your own designs or templates associated with installing and using the WebConsole products; and
- for the loss of any of the designs we build for You as a result of an action by You once we have completed and delivered the design. Please note that while backups are kept (which can be restored for a fee), we cannot guarantee any particular length of time for which these files are kept.
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Search Engine Marketing Packages:
WebAlive will endeavor to improve Your website’s ranking with all search engines but WebAlive does not represent nor guarantee that You will receive a particular ranking with any search engine following the purchase of the SEM Package. Additionally, as our SEM Packages are dependent on the content of Your Website, WebAlive takes no responsibility for the losses or expenses arising out of any changes You make to Your Website in following WebAlive’s advice.
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Correspondence:
Correspondence from WebAlive will be sent to You via the primary contact email address that You provided during the sign up process. WebAlive waives any responsibility for correspondence not being received at this address. It is Your responsibility to immediately advise Us of any change to Your primary contact email address.
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Links and Publicity:
By entering into this Agreement You acknowledge and agree that WebAlive may use Your name, and logo for the express and sole purpose of identifying You as a client of WebAlive in its marketing material, both print and electronic, and that WebAlive may place on Your website a hyperlink to WebAlive’s website labelled “designed by WebAlive” or words to similar effect. You may elect to withdraw Your permission for the use of Your name and logo in WebAlives’s marketing material, but must do so in writing with 30 days notification for withdrawal of any material from the commercial domain. WebAlive accepts no liability for, nor warrants the accuracy of any content associated with any of its customer’s websites.
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Trademarks and Intellectual Property Rights:
WebAlive is the sole and exclusive owner of the Services and the underlying software code and all Intellectual Property Rights in relation to the Services. All improvements to the Services will remain the property of WebAlive. WebAlive shall have and retain sole ownership of its trademarks, including the goodwill pertaining thereto.
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Acceptable Use:
You will ensure that Your website content (and anything relating to Your website or to the Services) is not illegal; deceptive; inaccurate; defamatory; pornographic, obscene or sexually explicit; discriminatory to any race, ethnic group, religion, or sect; discriminatory or offensive to the disabled or any physically, socially or economically disadvantaged sector of the community; discriminatory against any persons of a particular gender or sexual persuasion; discriminatory against any professional or trade group; offensive, or derogatory to any person or persons; or likely to in any way interfere with or harm the business of any person or entity or to interfere in any way with the natural course of business.
You will also ensure that Your website is not used for any "spamming" activity or any misleading or deceptive conduct or other illegal or unethical marketing practice. You further warrant that nothing on Your site will breach copyright or other Intellectual Property Rights; or will be contrary to the terms of any binding confidentiality or other agreement nor breach the Privacy Act or equivalent or any other laws or legal requirement.
WebAlive may, but shall not be obligated to, immediately and without notice, terminate the provision of Services to You and remove Your website or Your access to it, if We are of the reasonable opinion that You may be in breach of this clause of this Agreement and such termination may take place immediately on detection of such conduct and without notice to You. You acknowledge that You shall have no remedy or recourse against WebAlive.
Upon termination under this clause, WebAlive shall have the right to delete and/or destroy any and all of the content of Your website and Your information, without accounting to You for such destruction.
You shall have no redress against WebAlive in respect of any loss or claimed loss arising out of anything done under this clause.
Notwithstanding termination under this clause, WebAlive shall be entitled to receive payment from You for the Services for the term of this Agreement currently in force at the time of such termination. WebAlive does not accept liability for anything on Your website or which in any way relates to it and if any claim is made or threatened against WebAlive in respect of Your website or any use of Your website, and You will indemnify and keep WebAlive fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by WebAlive as consequence of Your website or any content or link on Your website.
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Bandwidth allowance:
You are allocated a monthly bandwidth allowance of 4 gigabytes. Should Your account pass this allocated amount We reserve the right to suspend Your account until the start of the next allocation, suspend Your account, terminate Your account and/or charge You an additional fee for the overusage. Your unused bandwidth allowance in one month cannot be carried over to the next month.
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Notice:
You agree to promptly inform WebAlive of any breach by You of these terms and conditions and of any conduct of any other person which You think may be a breach of these terms and conditions, whether the conduct has ceased, is continuing, or may occur in the future.
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Access:
WebAlive cannot and does not know or control whether You have given access to Your WebAlive account to other people. You are therefore totally responsible for when and how Your account with WebAlive is used and the actions of the people (if any) You allow to access, or transmit information through, WebAlive’s computer systems and network resources or otherwise utilise the Services(whether or not You have given them Your login and password details or not).
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Reliance on Services:
Whether You are using the Services for private or commercial purposes, or both, You agree and understand that the quality, and continuity, of WebAlive’s Services depends on factors over which WebAlive has no control and cannot seek to control. Whilst WebAlive will endeavour to maintain ongoing access, it is probable in such an operating environment that disruptions and failures of any or all computer systems, network resources, and the Services may occur. Recognising this, You agree that:
- WebAlive cannot and does not guarantee, warrant or otherwise imply that You will receive constant and uninterrupted access;
- WebAlive will provide You with access at any given time only as the circumstances allow; and
- WebAlive cannot always ensure that it’s computer systems and network resources will be fully or continually protected from unlawful access by others, including the infection of data or other information by viruses, or the alteration, misuse, or stealing of data or other information or that any of these activities will be detected.
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Breach of Copyright:
WebAlive does not condone activities and actions that breach the rights of copyright owners. It is Your responsibility to obey all laws governing copyright.
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Software Licence:
WebAlive hereby grants You a non-exclusive, non-transferable licence to use its software on a server controlled by WebAlive, for the sole purpose of creating and maintaining a website on the WebAlive server, or on such other server as may be licensed by WebAlive to host sites on its behalf, and under the terms and conditions of such licence. You may not copy or reproduce the software either in full or in part, nor attempt to in any way modify, alter, reverse engineer or de-compile the software. You are not licensed to use or install the software, other than as specifically authorised by WebAlive.
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Trade and business obligations:
You agree to comply with all requirements for the conduct of business applicable to persons conducting business both in Australia and in Your country of residence, and in particular not to breach any export law or trade restriction by the sale or supply of goods or services on Your website.
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Applicable law:
The laws of Victoria, Australia, govern this Agreement, and You submit to the exclusive jurisdiction of the courts of Victoria.
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Force Majeure:
We will not be liable for any act, omission, or failure to fulfill our obligations under this Agreement to the extent that such act, omission, or failure arises from any cause reasonably beyond our control including, but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action, fire, server and communication line failures, power failures, earthquakes or other similar disasters (called "Force Majeure"). However, We will take reasonable steps to inform You of any such cause and to continue to perform our obligations under this Agreement.
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Java technology:
According to Sun Microsystems, Inc., Java technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of Java technology could lead directly to death, personal injury, or severe physical or environmental damage.
By ticking the box "I have read the Terms and Conditions of WebAlive and agree to be bound by them" in our online registration process, You accept these terms and conditions.
