1. Definitions and Amendment
1.1 - Definitions:
“Customer” or “Client” or “You” means the person or company which has entered into an agreement with The Web Brand Company for supply of services.
“Service” or “Account” means all products and services offered by The Web Brand Company from time to time, which you use.
“Users” means users of the service who have not obtained it as a customer, but use/access the customer’s service or via a customer who is authorised to resell the services
“The Web Brand Company” or “We” means “The Web Brand Company” ABN 48 064 337 601
1.2 The Web Brand Company reserves the right to modify these terms and conditions from time to time and will make available any such changes by posting them to the Internet thirty (30) days before any such changes are effective.
2. Service
2.1 The customer understands that any services provided are not continuous or faultless or error free and that interruptions, delays, faults, degradations and outages to services may occur from time to time. For example interruptions may occur due to maintenance of software or hardware, outages also may be the result of hardware or software failure or external network failures, etc.
2.2 The customer will not hold The Web Brand Company responsible or liable for any interruption or delays or degradation to services. Where provision of a service involves the use of a third party service, for example a carriage service or a domain name service, the customer understands that The Web Brand Company has no responsibility for the performance or non-performance of these services.
2.3 Passwords
2.3.1 Where a password is required to use a service, the customer must not disclose the password to any third party and must keep secret at all times that password and prevent any unauthorised use of a The Web Brand Company service protected by that password.
2.3.2 Where a service is provided without a password the customer must ensure that no unauthorised use of that service occurs.
2.3.3 The customer understands that where a password has been revealed or compromised or unauthorised use of a service occurs that the customer is still liable for any charges or consequences that may arise from that use.
2.3.4 Where a customer believes a password has been revealed or compromised they must notify The Web Brand Company at the earliest possibility.
2.4 Scheduled Maintenance – The Web Brand Company must perform scheduled maintenance to servers and network Infrastructure from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will either email affected customers or post details of the scheduled maintenance to the The Web Brand Company web site at least 48 hours in advance of the maintenance.
2.5 Unscheduled Maintenance – The Web Brand Company may need to perform unscheduled maintenance. If unscheduled maintenance requires the service to be offline for more than 30 minutes, we will post details of the event to the The Web Brand Company web site or email affected customers after the maintenance has been completed.
2.6 Archiving of Data - We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient client data recovered from our backups.
2.7 The Service is provided by The Web Brand Company from its data centers in Australia. The Web Brand Company will determine in its absolute discretion from time to time the data centre location from which your service is provided.
2.8 In contracting with The Web Brand Company for the services, the customer obtains no rights to the hardware, software and other Infrastructure and facilities used by The Web Brand Company to deliver the Service.
2.9 Internet Protocol Address (IP Addresses) - The Web Brand Company may designate for the customer’s use on temporary basis one or more IP Addresses from the address space assigned to The Web Brand Company by Internic. Customer acknowledges that such IP Addresses are the sole property of The Web Brand Company, and are temporarily designated for customer's use as part of the services, and are not portable as such term is used by Internic. The Web Brand Company reserves the right to change the IP Address designations at any time. The Web Brand Company shall use reasonable efforts to minimize inconvenience to customer resulting from such changes, and shall give client reasonable notice of changes. Customer agrees that it will have no right to use IP Addresses assigned to The Web Brand Company upon suspension of customers's account or termination of this agreement.
2.10 Due to changing technology and other such circumstances The Web Brand Company reserves the right to modify the nature, price and type of services provided as it sees appropriate.
2.11 The Web Brand Company reserves the right to immediately suspend a service or refuse supply without notice if it believes that the customer may in any way not meet its obligations to pay for the services as they fall due.
2.12 The customer understands that suspension of an account or service by The Web Brand Company does not terminate this contract or the customers' obligations under this contract.
2.13 In the absence of any additional written agreement, these terms and conditions (as varied from time to time) will apply to any further services you acquire from The Web Brand Company.
3. Domain Names
3.1 The customer understands that The Web Brand Company can not guarantee provision of a domain name nor the timeliness of provision for domains and that rules and regulations outside of The Web Brand Company control govern the use, fees and issuing of domains.
3.2 The customer also understands that domain name applications are not an instantaneous process and that while a domain may appear to be available, by the time the application is processed and forwarded the domain may no longer be available.
3.3 The customer understands that transfer of domain names is outside the responsibility of The Web Brand Company and that it is the customer’s responsibility to authorise and finalise transfer of domain names to and from The Web Brand Company.
4. Payment and Billing Terms
4.1 Payment.
An initial payment of the setup fee and hardware or software purchases is due upon acceptance by The Web Brand Company. If such payment is not received by The Web Brand Company prior to installation of the service, The Web Brand Company shall have the right to terminate this Agreement without waiving any of its rights.
4.2 Billing Cycle; Billing Statement.
The full amount of the initial cost as shown in the order and fees for the first billing period of services are due and payable to The Web Brand Company upon its acceptance of the order. Thereafter, client will pay in advance all of the fees for each billing period. The billing cycle will begin on the date client's order is accepted. Unless client has made special arrangement with The Web Brand Company to the contrary, all notifications of billing will occur through e-mail or by posted invoices only. If client is a non-resident of the Australia, The Web Brand Company will use e-mail only for the billing of such client's account, unless The Web Brand Company decides otherwise.
4.4 Payment Methods and Purchases
4.4.1 Any payment under this agreement may be made by cheque, direct bank credit to The Web Brand Company’s bank, credit card, or cash. All amounts due shall be computed, established and paid in lawful currency of the Australia unless stated otherwise. All payments by client shall be made in full for the entire amount of the billing from The Web Brand Company without reduction, offset or charge back, unless and only to the extent such reduction, offset or charge back has been approved in writing by The Web Brand Company.
4.4.2 Regarding payment by credit card, The Web Brand Company will accept various credit cards. If payment is by credit card, the client authorizes The Web Brand Company to charge the credit card supplied by client for the full amount of all payments due from client from time to time, including but not limited to the prepayment fees, monthly service charges, past due balances, charges for overage and other additional services, and any other payments owed by client to The Web Brand Company hereunder. The Web Brand Company shall have the right to charge such credit card payments automatically and without prior notice to client on the first day of each billing cycle, or as soon thereafter as the client's credit card charge can be effected. Client shall ensure that the credit card provided by client has sufficient balance available to accept all charges by The Web Brand Company pursuant to this agreement. If the provided credit card fails authorization, an e-mail will be sent asking client to update client's credit card information. Client will have ten (10) days from the beginning of its billing cycle to update its credit card information or free up client's credit line for authorization. Should the credit card fail a second time, the service account may be suspended. If the billing issue is not resolved within five (5) days of suspension, The Web Brand Company shall have the right to terminate this agreement without waiving any of its rights. For new service accounts, should the provided card fail to authorize payment for the initial charge, the account will be automatically suspended or, at The Web Brand Company's sole and absolute discretion, terminated without waving any of its rights.
4.4.3 Client may pay by cheque issued by and drawn upon an Australian bank. A $30.00 fee will be assessed for each cheque, which is dishonoured for any reason. Upon such dishonour, client shall pay all amounts then or subsequently due by cashier's cheque drawn upon a Australia bank or by credit card, and in the case of non-Australia client. All payments shall be made payable to The Web Brand Company.
4.4.4 Client may pay by Electronic Fund Transfer (EFT) or via Internet Banking by crediting The Web Brand Company nominated account as shown in The Web Brand Company’s invoice.
4.4.5 All pricing is subject to change with 30 days notice. Please check the The Web Brand Company web site for latest details. Title to any goods provided by The Web Brand Company, remain the property of The Web Brand Company until payment is received in full.
4.5 Directors Guarantee of Payment
In the case of a company account, the directors personally guarantee the payment of all balances due. The balance due is stated in the The Web Brand Company monthly invoices and statements.
4.6 Application for Credit Account
4.6.1 Unless the method of payment elected in the service application form is credit card, a credit application form is to be completed.
4.6.2 The Web Brand Company may conduct credit reference checks, the cost of such checks may be charged to the customer.
4.6.3 The Web Brand Company may in its absolute discretion, accept or reject a credit application. The Web Brand Company is not required to provide reasons for its decision.
4.7 Account and Service Suspension
4.7.1 The Web Brand Company, at its absolute discretion, may suspend or terminate a service if the payment of an account is more than 30 days overdue. The suspension or termination of the service does not, in any way limit The Web Brand Company’s rights under this contract.
4.7.2 The Web Brand Company may interrupt or suspend all Services upon suspension of Client's billing account. Upon termination of the agreement for any reason, all services will be terminated. If client's account has been terminated, client may reactivate the agreement and client's account only with the written consent of The Web Brand Company and upon the following additional terms and conditions: client is required to pay any outstanding balances owed to The Web Brand Company. If client's information has been purged from The Web Brand Company’s database, client is responsible for setup fees. If the termination was due to credit card authorization failure or charge back, The Web Brand Company must approve the reactivation of the credit card account. The Web Brand Company may require a deposit at its sole and absolute discretion, and such deposit must be received by The Web Brand Company prior to reactivation. Client acknowledges and agrees that The Web Brand Company cannot issue the same Internet Protocol Address ("IP Address") as previously issued and the site may experience DNS caching. Client is responsible for re-uploading client's web site files. The Web Brand Company is not responsible for any lost files, information or data. Reactivation will only be performed during The Web Brand Company’s regular business hours
4.7.3 The Web Brand Company reserves the right to confiscate a machine owned by the client in the event that payment is overdue and reasonable efforts have been made on behalf of The Web Brand Company to resolve payment issues or for abuse of the The Web Brand Company network, its' resources, clients or netizens described in the "Acceptable Use Policy" document for the purposes of selling the asset (web hosting, co-located machine, dedicated server or other hardware/software) to recover lost revenue as contracted. Any profits benefiting from the sale of the seized assets will be forfeited by the client indefinitely. Ownership of the asset will also then be forfeited to The Web Brand Company.
4.7.4 The Client shall not set off against the price amounts due from The Web Brand Company.
5. Indeminification
5.1 Indemnity. CLIENT AGREES WITH The Web Brand Company, ACTING ON ITS OWN BEHALF AND AS AGENTS FOR ITS MEMBERS, EMPLOYEES, CONTRACTORS AND AFFILIATES THAT the Client shall indemnify, hold harmless and defend The Web Brand Company and its members, employees, contractors and affiliates, with counsel reasonably satisfactory to The Web Brand Company, from an against all claims, losses, liabilities and expenses (including attorneys' fees) related to or arising out of the services provided by The Web Brand Company to client under this agreement, including without limitation claims made by third parties (including users of client), such as false advertising claims, liability claims regarding products or services sold by client, claims of patent, copyright, trademark or other intellectual property right infringement, claims due to disruption or malfunction of services provided hereunder, or claims regarding any content submitted by client for publication by The Web Brand Company, but excluding those related to the gross negligence of The Web Brand Company.
5.2 The customer warrants not to hold The Web Brand Company liable for any loss or damage or liability in the event or such blocking or removal of content, loss of service, data or information.
6. Miscellaneous
6.1 In the event of an act of major catastrophe such as earthquake, riot, civil disorder, floods or other major disaster The Web Brand Company reserves the right to null and void this contract.
6.2 The Web Brand Company reserves the right to refuse an existing account or a new account an application for a service.
6.3 The customer agrees that by activating an online event (such as clicking an "I Agree" button) which incorporates agreement to these terms and conditions that this event legally binds them as if they had signed this contract and given full legal consent to be bound by these terms and conditions and any other relevant terms and conditions.
6.4 This contract is governed by the laws in force in the state of Queensland in the Commonwealth of Australia. |
