TERMS AND CONDITIONS OF ORDER AGREEMENT

 

These are the terms and conditions upon which Website Expressions Pty Ltd (the Company) will provide the Service to the Client. Clients are required to acknowledge that they have read and understood all articles in this document before service can be provided.

 

1                     Definitions

1.1                 Acceptable Use Policy: A document defining the rules [if any] that the Client is obliged to comply with when using the Service a copy of which has been given to the Client.

1.2                 Agreement: Agreement between the Company and the Client regarding the delivery of the Service. The Agreement consists of the Order Agreement form, the Terms and Conditions, Acceptable Use Policy [if any] , the Privacy Policy [if any], and any other custom documents that are drawn up to define Service to the Client by the Company.

1.3                 Commencement Date: The date specified by the Company as the day on which the Service is first activated for the Client.

1.4                 Client: The individual or legal entity that has entered into an Agreement with the Company, or the individual or legal entity that makes use of the Service.

1.5                 Maintenance Times: The hours during which the computer systems of the Company are not available due to the fact that technical maintenance is being carried out.

1.6                 Minimum Period: The minimum period for which the Agreement is entered into. The Minimum period is specified on the relevant Order Agreement.

1.7                 Annual Fee: The Annual Fee paid by the Client for the use of the Service. The fees are specified in the Order Agreement.

1.8                 Price Schedule: List of charges for any goods and services offered by the Company including non‑standard add‑on services required to support the Client. This schedule can be obtained on request.

1.9                 Privacy Policy: A document [if any] given to the Client outlining the obligations of the Company to the Client in accordance with the Commonwealth Privacy Act 1988.

1.10              Service: The delivery of web hosting, email, domain registration, licensed applications software, and website development services by the Company for business use, as specified in the Order Agreement.

1.11              Service Delivery: All work relating to establishing Client specific services by the Company and is not limited to setting up of equipment, networks, domains and websites.

1.12              Service Description: Specification of products and services delivered to the Client.

1.13              Order Agreement: The form the Client uses to request the Company for the provision of the Service which the Client obtains from the Company or sales consultant representing the Company.

1.14              Setup Fee: The one‑time fee charged to the Client for the delivery of Service and/or additional services. The Setup Fee is specified in the documents which make up the agreement at the date of signing the Agreement.

1.15              Terms & Conditions: A document specifying the reciprocal rights and obligations between the Client and the Company regarding delivery and use of the Service

1.16              The Company: Website Expressions Pty Ltd [ABN 87 108 587 131] of 3 Campton Close, JEWELLS NSW 2280, Australia, email mail@websiteexpressions.com

1.17              Variable Fee: Fees which are not fixed and may be required to be paid by the Client based on request of additional services and/or use of services above normal specification of Service Description.

 

2                     Subject of the Agreement

2.1                 The agreement sets out the reciprocal rights and obligations of the Company and the Client in relation to the delivery of the Service by the Company.

 

3                     Realisation of Agreement

3.1                 The Client will supply the Company with all requested information and details including a valid identification, a correct ABN number and/or proof (in writing) of authorisation to enter into Agreement. The Client guarantees that all presented information and details are correct and complete.

3.2                 The Client can only request the Service by submitting an Order Agreement.

3.3                 The Company reserves the right to refuse, cancel or reject any order made by the Client without requiring to provide reason, but notably under the following conditions:

3.3.1            the Client does not comply with a request as intended in article 3.1

3.3.2            there exists reasonable doubt that the Client cannot or will not comply with the obligations resulting from the Agreement including those set out in the Acceptable Use Policy and Privacy Policy

3.4                 The Agreement is only realised when the Company has sent a confirmation and acceptance to deliver service.

 

4                     Obligations on the part of the Company

4.1                 The Company will make every effort to ensure that the Commencement Date of the Service is within predefined or agreed target delivery date.

4.2                 Outside of the Maintenance times the Company will make every effort to ensure that the Service is available at all times.

4.3                 Given the technical structure of the Internet the Company cannot guarantee a certain bandwidth between the Client’s computer system and any other computer system that is part of the Internet.

4.4                 The Company will make every effort to secure any Client data on any computer systems of the Company so that it is protected from unlawful use or distribution. In this regard, the Company accepts the requirements of the Commonwealth Privacy Act.

4.5                 The Company will implement the appropriate technical and organisational safety and security measures with a view to assuring an appropriate level of security in providing the Service. The Client is aware of the fact that the Company cannot in all fairness offer full protection against any safety risks inherent in any device or server connected to the Internet and that these risks are higher in the case of shared virtual hosting servers.

4.6                 The Company reserves the right to introduce changes in the way the Service is accessed or used which is designed to promote improved security or use of the Service. In the event that the changes directly affect the way in which the Client gains access to the Service, the Company will ensure that the Client is notified sufficiently in advance.

 

5                     Obligations on the part of the Client and Use of the Service

5.1                 Unless determined otherwise in the agreement, the Client is responsible for providing any other equipment, software and services provided by third parties that are necessary for the Client to be able to gain access to the Service, such as Internet Access and a computer with up‑to‑date software. If requested to do so by the Client, the Company will see to it that the Client is provided with information regarding the various requirements.

5.2                 The Client undertakes only to use the Service in accordance with the Acceptable Use Policy. In using the Service the Client undertakes not to violate the rights of any third party, not to act indecently in relation to any third party or in any way that is in conflict with good morals or public order, and not to cause damage to any third party. In particular the Client must undertake:

5.2.1            To respect the intellectual property rights of third parties.

5.2.2            Not to distribute data contrary to statutory regulations.

5.2.3            Not to attempt to gain access to computer systems without being authorised to do so.

5.2.4            Not to alter, delete, render unusable or add data to data belonging to a third party without the consent of the third party in question.

5.2.5            Not to spread computer viruses or any other computer programs or data with a view to causing damage to computer programs or data belonging to third parties.

5.2.6            Not to use the Service in such a way as to obstruct the correct functioning of the computer systems of the Company or to hinder other users of the services provided by the Company in their use of the services in question.

5.2.7            Not to use the Service in such a way that IP data traffic is obstructed as a result.

5.3                 Without thereby affecting any other rights to which it may be entitled, the Company reserves the right to suspend the fulfilment of its obligations in relation to the Client, among other things by denying the Client access to the Service with immediate effect in the event that the Client fails to act in accordance with the provisions set out in article 5.2 and/or in the event that the Clients' sanctions justify such a move. The Company can never be obliged to provide compensation on account of the fact that it has suspended the fulfilment of its obligations under the terms of the agreement. The Client is to indemnify the Company from any claims made by third parties as a result of the fact that the Client has failed to act in accordance with the provisions set out in article 5.2.

5.4                 The Client is responsible for all the data contained within the website. The Company assumes no liability for consequences resulting from posting of unlawful content or data.

5.5                 Should it come to the knowledge of the Company that a publication produced by the Client and published by the Client by means of the Service is unmistakably unlawful, the Company is within its rights to demand that the Client must remove the publication in question from its website as soon as possible, and certainly within the immediate twenty four (24) hour period. In the event that the Client fails to comply with the said demand, the Company will remove the publication from its systems itself or suspend service. The Company can never be obliged to provide compensation on account of the fact that it has removed an unlawful publication from its systems.

5.6                 In the event that the Client is relocating premises, the Client is to notify the Company as soon as possible of the new address of the Client. The Company will make every effort to ensure that its records will be updated in accordance with this move.

5.7                 The Client agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service. The Client is not permitted to make the Service available to third parties outside of the Client’s organisation.

5.8                 The Client assumes responsibility for ensuring there is no excess use of the Service such that it will degrade the performance of the service for other Clients. Excessive use of limited resources such as, web server CPU and bandwidth can result in temporary suspension of service. The Company will make reasonable effort to inform the Client of intent to suspend service in this instance so that the Client may take necessary steps to improve the situation. However, the Company reserves the right to intervene if necessary.

 

6                     Domain Names and IP Addresses

6.1                 In the event that it has been agreed that the Company is to act on the Client’s behalf in applying for a domain name and/or IP addresses, the provisions set out in this article apply.

6.2                 The application for and use of a domain name and/or IP addresses are governed by the rules and procedures of the bodies in question, which include but are not limited to the AFNIC, Network Solutions, InterNIC, RIPE NCC, and auDA. The body in question will decide whether or not the domain name and/or the IP addresses that have been applied for is to be assigned. In applying for a domain name and/or IP addresses on the Client’s behalf the Company is simply acting as an intermediary and cannot guarantee that the domain name and/or the (class of) IP addresses that the Client wishes to apply for will actually be assigned.

6.3                 Domain names are registered in the Client’s name or in the name of the Client’s Company. Under certain circumstances (a member of staff employed by) the Company may be registered as the contact person for the domain for the purpose of maintaining that domain. Regardless of this, the Company has absolutely no involvement in the use of the domain name. The Client is to indemnify the Company from any claims made by third parties regarding the use of the domain name. The obligation to indemnify the Company from any claims made by third parties applies regardless of the fact that the domain name may have been acquired without the intervention of the Company.

 

7                     Support and Service

7.1                 The Company will support the Client in the use of the Service. The Client can call upon the Company in writing, by telephone or by e‑mail. The hours during which the telephone lines of the Company are open are noted on the About Us page of the website www.websiteexpressions.com. The Company is free to change the time during which telephone contact can be made.

7.2                 As part of its undertaking to provide support, the Company will make every effort to solve any problems that the Client may encounter when using the Service. The Client is to provide the Company with any assistance that may be necessary to solve the problem.

7.3                 The Company reserves the right to charge for support provided to a Client which is deemed above and beyond a normal level of support. The Client will be notified of any charges in advance. In the event that the Client unnecessarily calls upon the Company for support without merit, costs related to providing that support may be passed on to the Client at the discretion of the Company.

7.4                 The Company will not maintain, manage or repair equipment and/or software that is not supplied by the Company or by a party designated by the Company.

 

8                     Content Management and E-business Applications Software

8.1                 The use by the Client of any software that may be provided by the Company is subject to the licence conditions of the software in question. The Client undertakes to comply with the said licence conditions. The Company assumes no responsibility for the use or defect of this software.

8.2                 The Company will license to the Client, for the agreed period, the use of relevant application software, such as content management and e‑business solutions, provided as standard or configured specifically to the Client's requirements.

8.3                 The Company owns the exclusive rights to all software developed generally or expressly for the Client whether it is designed, developed, installed, configured, modified and/or supported by the Company for use by the Client and/or the Client's customers and/or the general public.

8.4                 The Company may, at its sole discretion, modify, adapt, enhance, reuse or copy any software that is designed, developed, installed, configured, modified and/or supported by the Company, to be used for its own purposes or that of another Client. All subsequent software will remain exclusive property of the Company and all rights are reserved by it.

 

9                     Website Development

9.1                 Where the Client requests service which includes development of a website, the following articles will be applicable.

9.2                 The Client authorises the Company to develop and publish a website on behalf of the Client using a standard template developed by the Company with its software to enable the required functionality for content management and/or e‑business. The Client authorises the Company to publicise their completed website to web search engines as well as other web directories.

9.3                 If the Client requires the Company to develop and publish a customised website in accordance with the specifications of the Client not using one of the standard templates the Client will pay such additional fees as the Company will advise by its quotation as may be required to develop such a customised website.

9.4                 The Client must provide a full and final version of the content for the website including text (headings and body text) and images (photographs, illustrations, logos, drawings and designs).

9.5                 The Client will provide access to the Client’s premises, staff and documentation, domain account, and existing website, if applicable, as might be reasonably necessary to facilitate the design, development, transfer and/or integration of the website.

9.6                 Once a Functional Specification document has been agreed to by both parties, any changes to the website design, content or functionality required for the website may be subject to additional charges.

9.7                 The Company reserves the right to charge for consultancy time and expenses, if required, to participate in meetings with the Client and/or third parties outside of any initial meetings and any subsequent meetings agreed to by both parties.

 

10                  Fees

10.1              The Client will be charged a Setup Fee for connection to the Service. There may be additional fees specified in the price schedule for applying and/or relocating and/or maintaining domain names and/or IP addresses.

10.2              From the Commencement date onwards the Client is obliged to pay an Annual Fee for the use of the Service. The Annual Fees specified in the Price Schedule are to be paid in advance.

10.3              If, at the Client’s request, the Company provides any additional services such as provision of additional disk space, or additional bandwidth, or the forwarding of e‑mail, the Company will charge the Client the rates that currently apply for the services in question. The Client will be notified of the costs of the said services in advance.

10.4              Unless otherwise indicated, the rates and fees charged by the Company are always specified in Australian Dollars including Goods and Services Tax (GST).

10.5              The Company is entitled to change the Annual Fee from year to year. When this occurs the Company will make every effort to notify the Client sufficiently in advance.

 

11                  Invoicing and Payments

11.1              The Client must pay the Setup Fees and Annual Fees in advance. Any additional fees such as variable or usage fees accrued during the billing month will be invoiced and charged in arrears.

11.2              The Company primarily charges by use of cheque, credit card or direct deposit. The Client acknowledges this and will provide correct and up‑to‑date information that will enable the Company to charge the Client using these methods in a timely manner.

11.3              Clients are responsible for the provision of sufficient funds in their bank account and will be held responsible for any bank charges resulting from insufficient availability of funds.

11.4              All payments are to be made in Australian Dollars, unless otherwise stated and agreed by both parties.

11.5              Charges for website design, development, transfer and integration payable by the Client, will be the amount quoted to the Client and any amendments advised to the Client by the Company, of which 50% will be due and payable prior to commencement of work, and the balance be due and payable within 14 days of completion of work and prior to launch.

11.6              In the event that the Client’s website exceeds the maximum storage capacity or throughput traffic as quoted to the Client the Company reserves the right to charge the Client the fees applicable to the actual capacity or throughput and will be due and payable within 14 days of notification.

11.7              Fees for hosting, administration and email, payable by the Client, the amounts quoted to the Client and any amendments advised to the Client by the Company, are due and payable annually in advance.

11.8              Licence fees for use of the Company’s content management and e‑business applications software, payable by the Client, will be in accordance with the Company’s quoted price to the Client and any amendments advised to the Client by the Company, and are due and payable annually in advance.

11.9              Charges for domain name registration and renewal, payable by the Client, will be in accordance with the Company’s quoted price to the Client and any amendments advised to the Client by the Company, and are due and payable annually in advance.

11.10           The Company reserves the right to amend its fees and charges at any time, and will provide at least 30 days notice to the Client in writing of such amendment. These will take effect from the date of commencement of the next annual period, renewal period or specific service.

11.11           The Client is not entitled to offset any claim it may have against the Company against a claim on the part of the Company.

11.12           In the event that the Client fails to pay an outstanding amount within the agreed term, the Client is considered to be in default from the day on which the sum in question should have been paid. The Company is entitled to deny the Client access to the Service until such time as payment is received in full together with any reinstatement fee of which the Company has notified the Client in advance.

11.13           In the event that the Client fails to pay an outstanding amount within the agreed term the Company is entitled to charge the Client all of the legal and non-legal costs incurred in the process of recovering its claim. Non‑legal costs are set at a minimum of two hundred and fifty dollars ($250) or at least ten percent (10%) of the claim, whichever is the greater.

 

12                  Force Majeure

12.1              In the event that the Company is unable to fulfil its obligations in relation to the Client as a result of force majeure, the obligations in question will be suspended for the duration of the situation of force majeure.

12.2              In the event that the situation of force majeure has persisted for six (6) weeks, the two Parties are entitled to cancel the Agreement for the future only. The Client is not entitled to claim compensation or any other reimbursement as a result of the situation of force majeure, even if the situation of force majeure proves to be to the advantage of the Company.

12.3              Within the context of the agreement, force majeure is understood to refer to any circumstance beyond the control of the Company that makes it impossible for the Company to fulfil any or all of its obligations in relation to the Client or as a result of which the Company cannot reasonably be expected to fulfil its obligations in relation to the Client, regardless of the fact that the circumstance in question might have been foreseen at the time that the Agreement was concluded. Circumstances considered to constitute force majeure include but are not limited to disruption in systems that are part of the Internet, disruptions in the telecommunication infrastructure, including the Connection, and power failure experienced by the Company.

 

13                  Liability

13.1              The total liability of the Company on account of attributable shortcoming in the fulfilment of its obligations under the terms of the Agreement is limited to the reimbursement of direct losses up to a maximum sum equivalent to the fee actually paid to the Company by the Client during the contract year in question. The Company cannot be held liable for direct losses, including consequential losses, loss of profit, lost savings and losses incurred as a result of stagnation of business operations.

13.2              With the exception of the cases specified in article 13.1, the Company cannot be held liable for compensation, regardless of the grounds on which a claim for compensation is based.

13.3              The limitation of liability as defined in this article does not apply to the extent that the losses in question are due to wrongful intent or gross negligence on the part of the Company or its managerial personnel.

13.4              Whenever the Company uses a third party for delivery of the Service, the liability of the Company is limited to the liability of the third party towards the Company. Whenever other limitations on the liability of the Company within the agreement are lower than the earlier mentioned limitation the lowest limitation applies. This applies specifically when a third party connection is used for the delivery of the Service.

 

14                  Duration and Termination of the Agreement

14.1              The agreement comes into effect on the Commencement date and is entered into for a Minimum Period calculated from the Commencement date. Following the expiry of the Minimum Period the Agreement will be tacitly renewed for an indefinite period, unless one of the Parties cancels the Agreement in writing at least thirty (30) days prior to the end of the Minimum period.

14.2              For the renewal or termination of the Agreement in accordance with the provisions set out in article 14.1, the Minimum Period is considered to run through to the anniversary of the date that the Company notifies the client that the website has been setup.

14.3              Following the expiry of the Minimum Period either of the two Parties can cancel the Agreement by issuing written notification to this effect at least thirty (30) days prior to the end of a calendar month.

14.4              The Company is entitled to dissolve the Agreement with immediate effect:

14.4.1         In the event that the Client fails to fulfil any of its obligations in relation to the Company in full and on time, unless the nature or extent of the failure to fulfil an obligation does not justify cancellation of the agreement and the ensuing consequences.

14.4.2         In the event that the Client applies for a suspension of payment, or if the Client files for, or is declared bankrupt, or files a petition for, or goes into involuntary liquidation.

14.5              In the event that the Agreement is dissolved in accordance with the provisions set out in article 14.4 all claims that the Company has against the Client are immediately due and payable in their entirety.

 

15                  Miscellaneous Provisions

15.1              The Agreement is governed by the law applying in NSW, Australia.

15.2              All disputes ensuing from or related to the Agreement are to be brought before the court of competent jurisdiction in NSW, Australia exclusively.

15.3              The Company is permitted to transfer the rights and obligations described in the agreement to a third party. The Client is not entitled to transfer the rights that accrue to and/or the obligations incumbent upon the Client under the terms of the Agreement to any third party without the prior written consent of the Company.

15.4              General or specific terms and conditions issued by the Client do not apply to the Agreement regardless of how the said terms and conditions may be termed.

15.5              The Company has the right to make changes to these terms and conditions. A change will also apply in respect of Agreements that became effective before the moment of change of the terms and conditions. The Company will make every effort to inform the Client, however the changes cannot be deemed void if the Client claims not to have been notified.

 

16                  Notices

                Any notice to be given by either party to the other may be sent by either email, fax, prepaid post, or delivery to the address of the other party as appearing in any written correspondence, 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, unless the contrary is proved, be deemed to be received on the day it was sent or if sent by fax be deemed to be served on receipt of an error free transmission report, or if sent by prepaid post be deemed to be served two days following the date of posting.

 

17                  Headings

                Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.

 

18                  Entire Agreement

18.1              These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between the parties relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party alter the interpretation of these terms and conditions. In accepting these terms and conditions, the Client has not relied on any representation other than those expressly stated in these terms and conditions and agrees that the Client has no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.

18.2              In the event of any inconsistency between any of the provision(s) of this agreement and any of the provisions of any written document(s) forming part of this agreement, then to the extent of such inconsistency, the provision(s) of the most recent document(s) prevail.

18.3              This Agreement includes all documents referred to in 18.1 and 18.2, together with any written Quotation Request(s), Content Specification(s), Functional Specification(s), correspondence, and/or other documented information relating to them.

18.4              This Agreement may be varied only by way of written communication (including email) from one party to the other that is accepted in writing (including email) by the other party.

 

19                  Acceptance

19.1              Once any payment in respect of the Company’s services has been made by the Client, it is deemed that the Client has read the entire Agreement and has confirmed acceptance of these terms and conditions.

19.2              Once full payment for a service, has been made by the Client, it is deemed that the Client has accepted that service, errors and omissions excepted, and that any subsequent changes required by the Client with respect to that service will attract additional fees or charges.