Web Mascot Pty Ltd ABN 89 140 285 285 (“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“).
1. 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.
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.
3. Provision of Services
WebAlive will use all reasonable efforts to provide You with the products and services that are relevant to the Services purchased, as described on the WebAlive website.
Design services sold by WebAlive are as detailed on the WebAlive website at the time of sale. This includes Website Design, Graphic Design, Business Starter Packages, Website Maintenance Packages, Flash Animation, Social Media Packages and WebAlive promotions.
You agree to read and abide by the domain registration policies, available at: http://www.auda.org.au/policy/policy-overview/ for .au domain names; and http://www.enom.com/terms/agreement.asp and https://www.icann.org/resources/pages/benefits-2013-09-16-en for all other domain names.
You authorise WebAlive to communicate Your contact details to the relevant domain registry to be made available to the general public, upon request of the relevant domain registry.
WebAlive does not represent nor guarantee that You or WebAlive have rights to ownership of any domain name purchased. You should refrain from taking any action to register or renew a domain name prior to confirm of registration or renewal from WebAlive. WebAlive does not guarantee successful registration or renewal of a domain name.
Failure by You to pay any fee (including, but not limited to, any renewal fee) for any domain name by the stipulated due date may result in the domain name being deactivated or deleted by the relevant domain name registry. Under no circumstances will WebAlive refund any fees paid by You to WebAlive in relation to any domain name.
WebAlive reserves the right to deactivate or cancel a domain name the use of which is illegal, fraudulent, infringes the intellectual property rights or other legal rights of a third party, or is defamatory to or disparaging of a third party. You will indemnify and keep WebAlive fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by WebAlive as a consequence of Your use of a domain name.
Search Engine Marketing & Optimisation
WebAlive offers search engine marketing, search engine optimisation and Google Map optimisation Services (collectively, the “Search Services“). Search Engine Services sold by WebAlive are as detailed on the WebAlive website (www.webalive.com.au) at the time of sale. This includes; Search Engine Optimisation (SEO) packages, Search Engine Marketing (SEM) packages and Google Maps optimisation packages. WebAlive, at their sole discretion, may use 3rd party suppliers to deliver all or any part of the Search Services.
All Services (excluding Domain Names)
For all Services (other than Domain Names, which are dealt with separately below), the initial term of this Agreement will commence on the date of activation of software products or the date the relevant services are first provided by WebAlive (as applicable). After the conclusion of the initial term, the term shall automatically renew for a further term of the same period (eg a 1-month term will renew for a further 1 month).
Unless notice is provided to WebAlive by You more than 10 working days prior to the expiry of the initial or any subsequent term, this Agreement will automatically be extended by further terms of the same period on WebAlive’s 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 at any time by delivering to You written notice of non-renewal at least 10 working days prior to the expiry of the initial term or any subsequent term.
The term of the domain name license (ie that period of time for which the license is granted to You) will be:
2 years for a .au domain name; and 1–10 years for a .com, .net, .org, .biz or .info domain name; and The period of the agreement for a subdomain.
When You purchase a domain name from WebAlive You will be purchasing the use of the domain name for the specified term, unless otherwise agreed with WebAlive. Upon expiration of the initial term for the domain name license, the domain name license may be renewed for a further period equal to the period of the initial term.
It is Your sole responsibility to ensure that registration of a domain name is renewed when necessary and WebAlive takes no responsibility for losses or expenses arising out of any failure by You as the Licensee of any domain name to renew the registration of a domain name.
The applicable prices and charges for a particular product or Service are as stipulated in a quote provided to You by WebAlive or if We have not provided a quote to You, as stipulated on the WebAlive website. All prices and charges published on the WebAlive website are inclusive of GST unless otherwise stated. These prices and charges may include:
A one-off non-refundable set-up or design services fee, which requires payment upfront before the Services will commence; a monthly or annual reoccurring fee, payable in advance of the commencement of the relevant period; and other fees, prices and charges payable on a time, materials or usage basis, as applicable. You are responsible for all prices and charges for Services and any other amounts (such as excess storage and bandwidth coverage) incurred by Yourself or Your authorized representative or as a result of any use of a Product or Service, in accordance with the billing provisions specified in the payment confirmation.
WebAlive reserves the right to contact a credit reporting agency to obtain personal information about You for the purpose of validating an application for credit made by You to WebAlive.
In the event that WebAlive issues You an invoice in arrears for any service or product, You fail to pay for any service or product by the set due date or You fail to pay any other amount owing under this clause, WebAlive reserves the right to, in addition to any other right: charge interest to You at an applicable rate until the relevant amount owing is paid; suspend or terminate any Services or products provided to You by WebAlive, and not renew or register any Services or products provided to You by WebAlive to a third party.
Any suspension does not relieve You of Your obligation to make payments under this Agreement including circumstances where a credit card transaction 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.
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.
WebAlive reserves the right to sell any amounts of money owed by You to WebAlive under this agreement to a debt collector.
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.
7. 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.
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.
9. Content of Your Website
You will take all reasonable steps to ensure that Your website will contain warnings if all or part of its content is not suitable for children and complies with all applicable laws and industry policies.
10. Your Data and Content
You are responsible for all data, content, materials and files supplied by You to WebAlive. It is solely Your responsibility to store back up of all data, content, materials and files supplied by You to WebAlive on Your own server.
11. Internet Protocol (“IP”) Addresses
You agree that WebAlive will maintain and control ownership of all IP numbers and addresses that are assigned to You. WebAlive reserves the right to change or remove any IP numbers or addresses assigned to You at our discretion.
Correspondence from WebAlive will be sent to You via the primary contact email address that You provided during the signup 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.
13. 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 WebAlive’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.
14. 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.
15. 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 the 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 a consequence of Your website or any content or link on Your website.
16. Bandwidth allowance
You are allocated a data transfer bandwidth limit and/or disks space limits, as prescribed on the WebAlive website. Should Your account pass this allocated amount You will be charged a rate of 0.10 cents per megabyte of bandwidth that is exceeded. Should Your account exceed the allocated amount for two consecutive months or more, You will be required to purchase additional storage. We reserve the right to suspend Your account until the start of the next allocation, suspend Your account or terminate Your account for failure to pay costs under this clause.
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 maybe a breach of these terms and conditions, whether the conduct has ceased, is continuing or may occur in the future.
18. Customer Information
You will need to supply WebAlive with accurate, complete and up-to-date personal information, including billing and account information, so as to be supplied with products, Services and payment confirmation. You shall notify WebAlive of any changes to Your contact information.
WebAlive will not be responsible if You do not receive important notifications (such as renewal notices) due to inaccurate personal information or Your failure to notify WebAlive of changes to Your personal details.
19. Use of Customer Information
You grant to WebAlive the right to disclose your personal information to other parties, including customer enquiries, mailing operations and billing and debt-recovery entities, in order to ensure that WebAlive is able to effectively provide its Services to You.
You acknowledge and consent to the disclosure by WebAlive to any law enforcement agency in any jurisdiction that is investigating any breach or suspected breach of any law in any jurisdiction of Your identity or other personal information provided by You to WebAlive, upon WebAlive being requested to do so by that law enforcement agency.
20. Vodafone Referred Clients
WebAlive has a commercial agreement with Vodafone Pty Ltd (“Vodafone“). If you have been referred to WebAlive by Vodafone (“Referred Client“) and your contract with WebAlive for the provision of Services, WebAlive may pay a commission to Vodafone.
If you are a Referred Client You acknowledge and consent to the disclosure by WebAlive to Vodafone of any personal information provided by You to WebAlive.
WebAlive cannot and does not know or control whether You have given access to Your WebAlive account to other people and recommends that You keep password and login in details confidential. You are 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).
22. 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. WebAlive may be required to perform maintenance, which also may affect the quality, and continuity, of WebAlive’s Services. WebAlive will take all reasonable steps to notify You of such maintenance when permitted by the circumstances. 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.
23. 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.
24. Website License
You hereby grant WebAlive a license to cache Your website. You also agree that caching of Your website by WebAlive is not a breach of Your or any other parties’ intellectual property rights.
25. Software License
WebAlive hereby grants You a non-exclusive, non-transferable license to use its software for the sole purpose of creating and maintaining a website hosted on WebAlive servers, or on such other server as may be licensed by WebAlive to host sites on its behalf. 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.
WebAlive reserves the right to add, remove or vary any software with respect to its Services or otherwise, and remove or vary any functionality with respect to its Services. Should such changes be incompatible with the pre-existing software, WebAlive will take reasonable steps to provide 30 days notice to such changes.
Grant of License and Protection of Proprietary Rights
WebAlive grants You a non-exclusive, non-transferable and revocable license to use WebAlive Programs (including software products and services). This Agreement does not convey to the Licensee any ownership rights or any other interest in the Sweeper Service. 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.
You acknowledge that the proprietary rights belong to WebAlive only and You will not dispute such ownership. You acknowledge that WebAlive retains all right, title and interest in and to the Licensed Programs, including without limitations any error corrections, enhancements, updates or other modifications to the Service, whether made by WebAlive or any third party and all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. The Licensee’s use of the Service does not transfer to it any title to the intellectual property of the Services or Software and the Licensee will not acquire any rights to the Services except as expressly set forth in this Agreement.
WebAlive Warrants that the program will perform in accordance with the published specifications (including operating systems, browsers or other 3rd party dependencies) at the time the program is released. Your use of the program in unsupported environments is not supported. Your exclusive remedy and WebAlive’s entire liability in tort. contract or otherwise will be at WebAlive’s sole discretion.
WebAlive makes no warranty, expressed, implied or statutory, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights. If implied warranties may not be disclaimed under applicable law, then any implied warranties are limited in duration to the above noted period. No WebAlive representative, distributor, agent or employee is authorized to make any modifications to this agreement. If any modifications are made to the program by; if the program is subjected to accident, abuse or improper use if you violate the terms of this agreement the license shall be immediately terminated.
26. Cancellation of Services
You are entitled to cancel a product or Service provided by WebAlive before the end of its Service term. Notification of cancellation must be provided to WebAlive in writing at least 30 days prior to the date at which You seek the product or service to terminate. You agree that should You chose to cancel a product or service before the end of its Service term, You may be required to pay a cancellation fee to WebAlive equal to the fees for two months of Service.
27. 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.
28. Applicable Law
The laws of Victoria, Australia, govern this Agreement, and You submit to the exclusive jurisdiction of the courts of Victoria.
29. Force Majeure
We will not be liable for any act, omission, or failure to fulfil 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.
30. 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 downloading, installing or using any WebAlive programs, products or services you are consenting to be bound by this agreement.