Terms and Conditions

Preamble

References throughout this Agreement to "we", "us", "our" or "Web Design Cafe" “WDC” means Web Design Cafe Pty Ltd ABN 75 155 004 041 or any employee or agent of Web Design Cafe responsible for dealing with you.

References throughout this Agreement to "you", "your" or "the customer" means you or your business as represented in your Application and will include any agent or representative of you having actual or ostensible authority to act for you.

Form of Agreement

This Agreement sets out the standard terms and conditions on which we supply our services to our customers. This Agreement comprises the following sections:

  1. your Application which contains the details of Services you have ordered;
  2. Part A - the General Terms which apply to all services and to all customers;
  3. Part B - Service Specific Terms and Conditions which each set out our standard service description for a particular service and specific terms and conditions which apply to a particular Service; and
  4. Part C - our Acceptable Use Policy, which applies to all Services.

If there is any inconsistency between any of the terms of this Agreement constituted as set out above, the order of interpretation precedence will be firstly the General Terms, then our Acceptable Use Policy, then the Service Specific Terms and Conditions, and then the terms of your Application.

PART A: General Terms

OpenTute LMS (Private Label) clients agree to the following when signing up:

Once your OpenTute LMS (Private Label) is launched, adding, modifying and maintaining all products are your sole responsibility.

A1. Definitions and interpretation

1.1 Definitions

In this Agreement:

Acceptable Use Policy means our Acceptable Use Policy set out in Part C of this Agreement and as varied by us from time to time and available from us or through our website http://webdesigncafe.com.au/terms-conditions/.

Agreement includes the Application, the General Terms, any applicable service specific Terms and Conditions and the Acceptable Use Policy;

Application means any application completed by you to request that we provide a specific service to you, including applications made verbally, electronically (including on our website or on a mobile device or tablet) or in writing;

Australian Consumer Law means the Australian Consumer Law as set out in the Competition and Consumer Act 2010 (Cth);

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in South Australia;

Charges means any fees or charges set out in this Agreement including in your application which are applicable to your Services, and any other amounts charged by us in connection with our provision of the Services to you, as varied by us in accordance with this Agreement from time to time;

Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgement, award, damage, loss, cost, expense or liability howsoever arising, whether present, unascertained, immediate, future or contingent, whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a party to this Agreement, third party or otherwise;

Commencement Date means the earlier of:

  1. the date on which we commence providing Services to you on your request; or
  2. the date you accept the terms and conditions of this Agreement (which may be in writing, via "click-through" acceptance, verbally or otherwise);

Confidential Information means the commercial terms of this Agreement, all trade secrets, financial information, technical information, ideas, concepts, know-how, technology, processes and knowledge of us in connection with our business which is confidential or of a sensitive nature and all other information belonging or relating to us that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which you know, or ought reasonably to be expected to know, is confidential to us;

Customer Content means any material provided by you to us or made available to us for the purpose of us providing the Services to you, including any content (such as data, videos, images, scripts, text, applets, links and any other information) to be published on or made available from your Website (if applicable) or digital directory listing. Customer Content also includes any amendments or changes we make to material provided by you or made available to us for editing, style, presentation or search engine optimisation purposes;

End User means you or your employee, agent or contractor, or any other person who accesses, uses or receives any direct or indirect benefit of the Services, including your customers;

General Terms means the terms and conditions set out in Part A of this Agreement;

Insolvency Event includes an event where a receiver or receiver and manager is appointed over any of your property or assets, an administrator, liquidator or provisional liquidator is appointed to you, you enter into any arrangement with your creditors, you become unable to pay your debts when they are due, you are wound up or become bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction;

Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including rights of any kind in or relating to:

  1. inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
  2. literary works, dramatic works, musical works, artistic works, cinematograph films, television broadcasts, sound broadcasts, published editions of works and any other subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the subject matter, subsist anywhere in the world;
  3. registered and unregistered trademarks and service marks, including goodwill in the business concerned in the relevant goods and/or services;
  4. trade, business or company names;
  5. website designs and
  6. internet domain names,

whether created or in existence before or after the date of this Agreement and includes anything, whether tangible or intangible, which incorporates, embodies or is based on any of the things referred to in paragraphs (a) to (e) inclusive of this definition;

Intervening Event means an event beyond our reasonable control which interferes with and prevents us from providing the Services to you; such events include any act or omission of our suppliers outside our reasonable control, any disruption to our network or our suppliers' networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, lack of availability of resources, strike or other industrial action and acts of God, lightning strikes, earthquakes, floods or other intervening natural event;

Personal Information means any information about a person, whether recorded in a material form or not, whose identity is apparent or can be reasonably ascertained from the information or opinion, and includes information relating to a person's name, billing address, street address and any other relevant details;

Personnel means our employees, contractors, agents or other third parties;

Privacy Act means the Privacy Act 1998 (Cth);

Professional Services means any one-off, periodic or ongoing Services performed for you by our personnel involving particular expertise or skill;

Regulator includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Telecommunications Industry Ombudsman, Communications Alliance Limited, and any other relevant government or statutory body or authority;

Service Specific Terms and Conditions means the terms and conditions set out in Part B of this Agreement;

Services means any services we provide to you under, or in connection with, this agreement as requested in your Application or as agreed from time to time;

Supplier means a "Carrier" or "Carriage Service Provider" (as defined in the Telecommunications Act), another telecommunications service provider, a wholesale supplier of telecommunications services, third party provider or supplier as nominated by us from time to time from which we source the Services or any part of the Services to resupply to you;

Telecommunications Act means the Telecommunications Act 1997 (Cth);

Term has the meaning given in clause A4; and

Website means your website (if any) hosted by us or created under this Agreement.

1.2 Interpretation

In this Agreement, unless the context requires otherwise:

  1. the singular includes the plural and vice versa;
  2. other grammatical forms of defined words or expressions have corresponding meanings;
  3. a reference to a document includes the document as modified from time to time and any document replacing it;
  4. if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
  5. the word "month" means calendar month and the word "year" means 12 months;
  6. the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
  7. a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
  8. a reference to a government agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute;
  9. wherever "include" or any form of that word is used, it must be construed as if it were followed by "(without being limited to)"; and
  10. money amounts are stated in Australian currency unless otherwise specified.

A2. Supply of Services

2.1 Agreement

We agree to provide, and you engage us to provide, the Services on the terms of this Agreement.

2.2 Obligation to supply

Nothing in this Agreement requires us to provide any Services to you at any time when:

  1. you have not paid for Services previously provided by us for which payment is then due; or
  2. there has been a breach of this Agreement by you that has not been duly remedied.

2.3 Professional Services

If the Services you order in your Application require us to perform Professional Services for you, the following provisions will apply:

  1. We will use appropriately trained and qualified Personnel to perform the Professional Services;
  2. Our Personnel will use due care when providing the Professional Services; and
  3. We may subcontract or outsource the performance of any Professional Services without obtaining your consent.

A3. Your use of the Services

  1. You acknowledge and agree that you have purchased, and will not use, the Services for personal, domestic or household use or consumption.
  2. You acknowledge and agree that you accept full risk and responsibility for your use and your end users' use of the Services.
  3. When using the Services, you must comply with and must ensure that your end users comply with:
  1. the terms of this Agreement;
  2. our Acceptable Use Policy and any reasonable guidelines or directions we may issue from time to time; and
  3. any applicable laws, regulations, standards and industry codes, and with the requirements or directions of any Regulator.
  1. You must not, and must ensure that your end users do not, directly or indirectly, use the Services:
  1. to breach the rights, including the intellectual property rights, of any person, or infringe or adversely impact on the rights of any person;
  2. in a manner which is misleading or deceptive;
  3. in a manner which results, or could result, in damage to property or injury to any person;
  4. in any way which damages or interferes with our provision of Services to other customers or exposes us to liability; or
  5. in any manner that breaches our Acceptable Use Policy.
  1. You must not, and must ensure that your end users do not:
  1. reverse engineer or in any other way copy, access or utilise any software (or any part of software) that we provide you in connection with the Services other than in accordance with the terms of this Agreement;
  2. attempt to use, or allow use, of the Services in a way which may impede our ability to provide the Services or other services to you or any other person or entity;
  3. make or receive transmissions or communications of any type or quantity that adversely affect our operation or jeopardise the use of the Services or other services, or their performance by you or any other person or entity;
  4. act in a way that may waste resources or prevent others from using or receiving the full benefit from the Services or other services; or
  5. resell or resupply the Services to any third party.

A4. Term

This Agreement commences on the Commencement Date and continues until terminated in accordance with its terms (Term).

A5. Charges

  1. You must pay to us the Charges for the Services you have selected to receive in your Application in accordance with requirements of this Agreement (as varied from time to time in accordance with this Agreement).
  2. You may request a variation to the Services by application to us. Where you seek a variation of the Services and we accept that variation (which may be subject to conditions or additional cost), the Charges shall automatically be revised to take into account the variation of the Services.

A6. Billing

6.1 Invoicing

  1. We will invoice you the charges incurred by you. The timing, delivery and format of our invoice may vary depending on the Services ordered by you and our internal billing practices including:
  1. if you choose to pay for any of our Services by eftpos or cheque, we will invoice you for the total Charges incurred under this Agreement upfront; or
  2. if you choose to pay for our Services by direct debit or credit card, we will invoice you for the Services we provide to you on a monthly basis, unless you request to pay the full amount upfront in your Application.
  1. If you are receiving Services for which we are invoicing you on a monthly basis, Charges that do not appear on your invoice for the current billing period may appear on future invoices due to processing procedures.
  2. We may send invoices to you via the email address you have indicated on your Application or to your billing address as indicated on your Application. It is your responsibility to ensure that you provide us with your most up to date address and billing information.
  3. Unless otherwise stated on an invoice, you must pay us the amount invoiced within 14 days of the date of that invoice.

6.2 Payment

  1. Subject to clause A6.1.1.2, you may pay your invoice by any one of the payment methods set out on your invoice.
  2. If you order additional Services from us via our website, you must pay for these services via direct debit or credit card unless otherwise agreed with us.
  3. If you have nominated to pay your invoice by automatic direct debit by signing a direct debit authority form, your bank account or credit card will be debited on or around the due date specified on the invoice. Your payment by direct debit is subject to the terms and conditions of the direct debit authority form.
  4. If you pay your invoice by direct debit or cheque and your payment is not honoured (for example, there are insufficient funds in your account or your cheque is dishonoured) we may charge you a payment dishonour fee and recover from you any fees charged by our bank which result from the dishonoured payment.

6.3 Overdue accounts

  1. If you do not pay off any amounts payable under this Agreement by the due date, we may do one or more of the following:
  1. suspend or terminate all or part of your Service until the amount outstanding is paid in full;
  2. charge you interest on all overdue amounts at 2% per calendar month, calculated daily and compounded monthly;
  3. engage a debt recovery agent to recover the amounts outstanding;
  4. institute legal proceedings against you to recover the amounts outstanding; or
  5. if you have elected to pay by direct debit, you authorise us to deduct any unpaid amount (or part thereof) from your credit card or bank account nominated on the Application or our direct debit form.
  1. If you default in the payment of any amounts payable under this Agreement, we may use or disclose any Personal Information collected and recorded in relation to you to a third party to assist us in the process of debt recovery.

A7. GST

7.1 Definitions

In this clause A7:

  1. the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
  2. Supplier means any party treated by the GST Act as making a Supply under this Agreement.

7.2 Consideration is GST exclusive

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

7.3 Payment of GST

  1. If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
  2. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.

7.4 Reimbursement of expenses

If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:

  1. the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
  2. if the Other Party's recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,

such that after the Other Party meets the GST liability, it retains the Net Amount.

A8. Making complaints

  1. If you have any complaints in connection with the Services (including complaints about your invoice), you agree to contact us first to resolve the complaint via the contact details available on our website at www.webdesigncafe.com.au. 
  2. We will handle your complaint in accordance with our complaints procedure. Information on our complaints procedure may be obtained by contacting us.

A9. Variations to this Agreement

  1. This Agreement, including the Service specific Terms and Conditions, the Charges, and any terms and conditions of this Agreement relating to the Charges, may be varied, altered, replaced or revoked by us at any time (Variations):
  1. without notice to you, if the Variation is likely to benefit you or have a minor or neutral detrimental impact on you; or
  2. by giving you 21 days notice of the Variation prior to the date the Variation is to take effect, if the Variation could be reasonably expected to adversely affect you. We may provide such notice in writing, via email or by publishing a notice on our website.
  1. Where a Variation could be reasonably expected to adversely affect you, or have more than a minor detrimental impact, and we have notified you of such Variation under clause A9.1 we will offer you the right to terminate your Agreement by giving us notice in writing within 21 days from the date of our notice to you without incurring any fees or charges, other than any Charges incurred up to the date on which your Agreement is terminated.
  2. Any Variations implemented by us will take effect:
  1. in respect of Charges for the Services which are billed on a monthly basis, from your next billing cycle 21 days after we have notified you of such Variations; or
  2. in respect of all other amendments, 21 days after we have notified you of such Variations.
  1. If you have requested changes to the Charges for your Services, and we have accepted those changes, these changes will only apply from the following billing cycle after we have agreed to such change.

A10. Intellectual Property Rights

  1. You acknowledge and agree that:
  1. as between the parties, we own all rights, title and interest in the Intellectual Property Rights in any software (including the source code and object code), documentation, online platforms, equipment, technology or any other material (including in material or electronic form) that we make available during the course of providing you the Services;
  2. Any exceptions to ownership or Intellectual Property and/or code must be agreed upon in advance in writing; and
  3. nothing in this Agreement transfers to you any ownership of any Intellectual Property Rights referred to in clause A10.1.1.
  1. Where you provide us with any Customer Content, you:
  1. grant to us a non-exclusive, royalty-free, worldwide licence to use, modify, communicate and adapt that Customer Content for the purpose of providing the Services to you;
  2. represent and warrant that you have the rights and capacity to grant the licence under clause A10.2.1.
  1. Nothing in this Agreement transfers or any way affects, impacts on or infringes the Intellectual Property Rights in any material owned by any third party.
  2. We may use your name and trade marks, your details and details of the duration and value of this Agreement in our lists of customer references and marketing materials or otherwise on our website at webdesigncafe.com.au and opentute.com and entering into this Agreement is deemed to be your consent for us to so act.

A11. Confidentiality

  1. You must not disclose our Confidential Information without our prior written consent.
  2. You must not use any of our Confidential Information except in connection with using the Services in accordance with the terms of this Agreement.
  3. The obligations of confidentiality under clauses A11.1 and A11.2 do not apply to any information that:
  1. is generally available to the public (other than by reason of a breach of this Agreement);
  2. already in your possession other than through a breach of this Agreement; or
  3. is required to be disclosed by any applicable law.

A12. Personal Information

12.1 Collection of Personal Information

  1. We or our agents may collect Personal Information about you and your end users for the primary purpose of providing the Services to you.
  2. You must ensure that your end users are informed of and consent to our right to collect Personal Information about the end user.
  3. If you do not provide Personal Information to us, we may not be able to provide you with the Services.

12.2 Use and disclosure of Personal Information

  1. We may use and disclose your Personal Information and the Personal Information of end users for purposes relating to the supply of the Services to you. This includes billing and account management purposes, product and service development, managing your relationship with us, and marketing our services to you.
  2. We may use and disclose your Personal Information and the Personal Information of End Users to or from:
  1. a credit provider or credit reporting agency;
  2. a law enforcement agency or government agency to assist in the investigation of crime or the enforcement of any laws;
  3. to contracted service providers which we use to perform administrative services on our behalf, including but not limited to billing providers or IT providers. Such contracted service providers may be located in a jurisdiction other than Australia; and
  4. any third party as otherwise required or permitted by law.

12.3 Using your Personal Information for marketing related and communication purposes

  1. Unless you have requested in your Application not to receive marketing material, you acknowledge that we may send you from time to time any communication in the form of telephone calls, written correspondence, letters, brochures or emails from us or our related parties to enable you to keep up-to-date with our Services and other matters relating to internet security, viruses, useful tools, promotions and sites of interest. This communication does not constitute spam as we have a business relationship with you.
  2. If you do not wish to receive such communications you may opt-out of receiving marketing material at any time by contacting us. This will not affect any communications we send to you which are account-related or legally required.

12.4 Access and Correction of Personal Information

If you are an individual, you may request:

  1. access to any of your Personal Information held by us; or
  2. correction to any of your Personal Information held by us,

in accordance with our privacy policy and the Privacy Act.

12.5 Privacy Policy

By providing your Personal Information and Personal Information of End Users to us and obtaining the Service, you acknowledge and consent to the collection, use and disclosure of your Personal Information as set out in this clause A12 and in accordance with our privacy policy. For a full copy of our privacy policy please visit our website at http://webdesigncafe.com.au.

A13. Warranties

13.1 Our warranties to you

Subject to any of your rights under the Australian Consumer Law, which contains consumer guarantees that may not be able to be excluded, we do not warrant that:

  1. the Services provided under this Agreement will be uninterrupted or error free;
  2. the Services will meet your requirements, other than as expressly set out in this Agreement or as made known to us as being the particular purpose for which the services are acquired;
  3. the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to our services or systems; or
  4. you will receive any increase in revenue, profit, goodwill or website usage as a consequence of your use of the Services.

13.2 Your warranties to us

  1. You warrant and represent that:
  1. if you are a corporate entity, you have full corporate power to own your assets and to carry on your business;
  2. you have the power to enter into and perform this Agreement;
  3. the entry into and performance of this Agreement by you does not constitute a breach of any obligation (including but not limited to any statutory, contractual or fiduciary obligation), or default under any agreement or undertaking, by which you are bound;
  4. you are not subject to an Insolvency Event; and
  5. you are not entering into this Agreement as trustee of any trust or settlement
  1. You warrant and it is a condition of this Agreement that:
  1. any Customer Content you provide to us will not infringe the Intellectual Property Rights or other rights of any third party;
  2. you will conduct such tests and computer virus scanning as may be necessary to ensure that any content (including Customer Content) uploaded by you or End Users onto or downloaded by you or End Users from the our server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; and
  3. you will keep secure any passwords used with our Services.

A14. Liability and Indemnity

14.1 Our liability to you

  1. Nothing in this Agreement affects your rights under the Australian Consumer Law that cannot be excluded.
  2. Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
  3. Subject to clauses A14.1, our liability to you under this Agreement, your End Users or any person who may utilise the Services in any circumstances, however arising, whether in contract, statute, tort (including negligence) including any liability arising from any representation, warranty, condition or undertaking that would be implied in this Agreement by law, trade, custom or usage, is excluded to the maximum extent permitted by law.
  4. Except where we fail to comply with any applicable consumer guarantee under the Australian Consumer Law, we will not be liable for any special, incidental or consequential loss or damage and in particular, any loss of revenue, profits, data, actual or potential business opportunities, contracts or anticipated savings of profits, or any indirect or economic loss.

14.2 Your liability to us

  1. You indemnify us for any loss or damage we may suffer in connection with any Claim relating to:
  1. your breach of this Agreement;
  2. you or your End User's use or misuse of the Services;
  3. the publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your Service (whether such material was published by you or an End User);
  4. any Claim made by a third party that our use of any Customer Content or other material you have provided us infringes that party's Intellectual Property Rights; and
  5. any Claim made by you and/or a third party in relation to any Customer Content or part of the Customer Content.
  1. Your obligations under this clause survive termination of this Agreement.

A15. Suspension of the Services

15.1 Suspension of Services

We may suspend your Services at any time, without liability and immediately if:

  1. during any technical failure, modification or maintenance involved in the Services, provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practical;
  2. you breach a material term of this Agreement, which includes any term relating to your use of the Services and any term of our Acceptable Use Policy;
  3. you are the subject of an Insolvency Event;
  4. we reasonably suspect that you, an End User or any person in connection with the Service has committed fraud, is engaged in fraudulent activity or where evidence suggests illegal conduct in relation to the Services;
  5. you are a natural person (and not a company) and you die;
  6. there is an emergency;
  7. we are required to do so to comply with any law or any direction of a Regulator or government agency;
  8. an Intervening Event occurs; or
  9. we are otherwise entitled to do so under this Agreement.

15.2 Consequences of suspension

  1. If we suspend the Services under clause 15.1, you will still remain liable for all Charges payable to us under this Agreement during the period of suspension.
  2. If your Services have been suspended by us for reasons which are reasonably attributable to you, and we reactivate the Services, a fee may be payable by you to reactivate the Services.
  3. We will use reasonable endeavours to reactivate your Services once the cause of the suspension is rectified to our reasonable satisfaction.
  4. If we have taken any action in accordance with clause 15.1, we may delete any or all of your information, material, software, date or other content stored on our system at our sole discretion.

A16. Termination

16.1 Termination of ongoing Services by you

  1. Subject to clause A16.1.2, if you have specified in your Application to receive ongoing Services (such as webhosting Services), you may cancel your Services by providing us with 30 days written notice. For purposes of security and protection of your interests we will not accept cancellation notices other than in writing from you and sent to us as required under clause A17.2.2.
  2. If you have specified in your Application to receive ongoing Services on a fixed term basis, on termination under clause A16.1.1 you must pay us all Charges that would be payable during that fixed term.

16.2 Termination of ongoing Services by us

  1. Unless otherwise stated in your Application, this Agreement may be terminated by us by giving you 30 days notice in writing. Such notice may be sent by email to the email address supplied by you in your Application.
  2. We may terminate this Agreement, without liability to you, immediately and without notice to you where:
  1. you breach a material term of this Agreement, which includes any terms relating to your use of the Service and any term of our Acceptable Use Policy, and:
  1. that breach cannot be remedied; or
  2. that breach can be remedied, but you do not remedy that breach within 7 days of receipt of a notice from us requiring the breach to be remedied;
  1. you are the subject of an Insolvency Event;
  2. we reasonably suspect that you, an End User or any person in connection with the Service has committed fraud, is engaged in fraudulent activity or where evidence suggests illegal conduct in relation to the Service; or
  3. you are a natural person (and not a company) and you die.

16.3 Process for cancellations - Cooling Off Period

  1. Web Design Cafe in its absolute discretion may accept a cancellation for Services strictly subject to the following terms:
  1. you give written notice to Web Design Cafe of your request to cancel in writing within 14 days from Commencement Date;
  2. you pay all Charges for all work performed to the date of cancellation, which at a minimum is deemed to be at least one third of the total cost specified in your Application.
  1. You agree that any Charges for Domain Name Registration Services, or any Charges that you have paid by eftpos or cheque, are non-refundable.

16.4 Consequences of termination

On termination of this Agreement:

  1. if you receive Domain Name Registration Services from us, on termination of this Agreement you may transfer your domain name to another domain name registrar.
  2. you must pay all outstanding Charges immediately; and
  3. we may delete all of your data (including Customer Content) from any storage media.

A17. General

17.1 Assignment

  1. We may assign or novate all or part of our rights and obligations under this Agreement without your consent, provided that such assignment or novation is on terms no less favourable to you than the terms of this Agreement in existence immediately prior to assignment or novation.
  2. You cannot assign or novate all or part of your rights and obligations under this Agreement unless we agree to the assignment or novation in writing.

17.2 Notices

  1. We may give any written notice to you in connection with, or as required by this Agreement, by sending the notice to you via email, post or fax or as indicated in your Application and service in any of these ways of notice is deemed to be effective. You must notify us in writing of any change to the address you have specified in your Application.
  2. You may give any written notice to us to you in connection with, or as required by this Agreement, by sending the notice to:

admin@webdesigncafe.com.au 

17.3 Governing law

This Agreement is governed by and must be construed in accordance with the laws applying in South Australia. You and we submit to the exclusive jurisdiction of the courts of South Australia and Australia.

17.4 No waiver

A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under this Agreement (such as a right that we have under this Agreement due to your breach of this Agreement) does not operate as a waiver of the power or right.

PART B: Service Specific Terms and Conditions

PART B.1 - Domain Name Services

The following Service Specific Terms and Conditions are applicable if you have selected in your Application to receive Domain Name Services from us.

B1.1. Definitions

In addition to the definitions in Part A (General Terms), the following definitions also apply to Part B1 of these Service Specific Terms and Conditions:

auDA means .au Domain Administration Limited ACN 079 009 340, the regulatory body responsible for administering the Australian .com.au domains, or its successor;

Dispute Resolution Policy means the binding dispute resolution policy with respect to a domain name which forms part of the Registration Agreement and conditions for registration and maintenance of that domain name;

Domain Name Registration Policies means any naming policy, rules, procedures or terms and conditions of registration applicable to you in relation to the registration, transfer and maintenance of a domain name (including without limitation a Dispute Resolution Policy and the terms and condition of the Registration Agreement). The current Domain Name Registration Policies for each domain can be accessed via the Hostgeek website at http://www.hostgeek.com.au/terms/;

Domain Name Services means any domain name registration Services or Domain Name Transfer Services ordered by you on your Application;

Domain Name Transfer Services means any domain name transfer Services ordered by you on your Application;

ICANN means the Internet Corporation for Assigned Names and Numbers;

Hostgeek means Hostgeek Limited, an accredited registrar of ICANN;

Registration Agreement means the agreement or agreements to be entered into between you and Hostgeek to register, renew or transfer a Domain Name using Hostgeek as the registrant of record. The current Registration Agreement for each domain can be accessed via the Hostgeek website at http://www.hostgeek.com.au/terms/; and

Registry means the entity authorised to administer the register for each domain.

B1.2. Fees

  1. All Domain Name Services require upfront payment from you. You agree to pay us the relevant registration fee as set out in this Agreement and your Application and acknowledge that we are not able to commence any Domain Name Services without that payment having been cleared into our account.
  2. Except where we fail to comply with consumer guarantees under the Australian Consumer Law, you acknowledge and agree that all fees for Domain Name Services are non-refundable. We cannot provide refunds for domain names that are incorrectly registered, including, without limitation, domain names that contain spelling errors. You agree that it is your responsibility to carefully check the domain name you have selected in your Application to ensure that it is correct.

B1.3. Automatic renewal

  1. During the term of this Agreement, we will automatically renew any domain name you have successfully registered or transferred to us as and when such renewal is required for the same length as the previous registration period. You agree that we will apply any such renewal fees to your account with us and that you will pay those renewal fees in accordance with the payment terms set out in this Agreement.
  2. If you do not want us to renew your domain name, you must provide us with at least 10 days notice in writing prior to when your next domain name renewal fee falls due.

B1.4. Authorised reseller

  1. We are an authorised reseller of Hostgeek's domain name registration services. We are not, and do not represent in any way that we are, an accredited ICANN or auDA registrar and we do not have the power or authority of an accredited ICANN or auDA registrar, including without limitation the power or authority to approve or refuse any registration or renewal application or to revoke any domain name licence.
  2. We expressly disclaim any responsibility with respect to any decision by a Registry, court or any third party to refuse to register, terminate or transfer a domain name for any reason. We do not warrant or guarantee that any domain name applied for will be registrable or registered. You agree that you will not take any action with respect to a requested domain name until registration has been affected and you have been notified of such registration.

B1.5. Appointment as agent

  1. You agree to appoint us your agent for the purpose of entering into the Registration Agreement with Hostgeek on your behalf and performing the domain name registration services contemplated by this Agreement and your Application on your behalf. You agree that you have read, understood and agree to be bound by the applicable Registration Agreement for the domain name you are registering.
  2. You agree that you have read and understood the Domain Name Registration Policies applicable to your domain name and you agree to the consents, warranties and indemnities that you, as the registrant, are required to give pursuant to those Domain Name Registration Policies.

B1.6. Domain Name Transfer Services

  1. This clause applies if you have requested Domain Name Transfer Services from us.
  2. All Domain Name Transfer Services require upfront payment from you. You agree to pay us the relevant registration fee as set out in this Agreement and your Application and acknowledge that we are not able to commence any Domain Name Transfer Services without that payment having been cleared into our account.
  3. You warrant that you are fully responsible for any contractual obligations that you may have with your existing or any other registrar.
  4. In order to take advantage of the Domain Name Transfer Services, you will first need to retrieve the "domain password" (aka, "registry key", "transfer password", "transfer key", "EPP authentication code", "domain token", "authcode password", or "UDAI key") from your current registrar.
  5. You will ensure that your domain is not locked by your current registrar.
  6. You acknowledge that 60 days must have passed on your current domain name registration term (and that this term will not be expiring within 7 days) in order to transfer your domain name from your existing registrar to Web Design Cafe.

PART B.2 - Webhosting Services

B2.1. Overview

Usage of Web Design Cafe Pty Ltd (referred to as “WDC”) web hosting or Virtual private server services, is constituted by your agreement to these terms and conditions and privacy policy.

B2.2. Service Signup

Upon signing up, your order will be processed upon passing of fraud checks. You are required to provide a valid e-mail address to be used for sending you important notices / and /or documents (invoices, support ticket updates, abuse complaints, etc.). We will not spam you with advertisements nor will we sell any of your information off to third parties. All information is secured and encrypted in our database for your protection! We will not be able to retrieve lost passwords. If you lost your password for cPanel you can submit a ticket to have it reset.

B2.3. Service Description and No Warranties of Service

WDC provides web hosting services through either shared accounts, virtual private servers (VPS) that are leased out. Our services are used to store data, more specifically “Web Sites”, in order to transmit data or information “World Wide”. WDC actively denies and rejects responsibility for any of the data sent out.

While WDC attempts to bring you the highest quality hosting service possible, WDC has no warranties of service expressed or implied, including that made for a particular purpose. WDC is unable to guarantee the integrity of any data stored or transmitted VIA the internet or through our systems. WDC is not liable for any claims of damage by the customer, including, but not limited to, damage of loss of every nature, caused by the loss of data, or through the inability to connect to the internet, or through the inability to send and receive data. This includes but not limited to, the hacking of your website, hardware failures, server faults, deletion of your account due to software faults, etc. You are solely responsible for making your own backups so that this can be prevented.

Unless a specific ‘additional backup’ service has been subscribed to by a customer then backups are the SOLE RESPONSIBILITY OF THE CUSTOMER

B2.4. Indemnification

Customers shall Indemnify and hold harmless from all demands including, liabilities, costs, claims, liabilities, attorney fees against WDC, its partner company Geek Internet Pty Ltd, or any of its affiliates, resellers, other customers, etc. This means that the Customer will not hold us responsible for any liabilities arising out of any injury to people, damage done or loss caused by the use of our services. Customers are responsible for all material supplied by Customers who infringe or are allegedly infringing to a third party. WDC is not required to compensate or refund by any means. All of our refunds are handled on a case by case basis.

B2.5. Billing and Service Fees

WDC will bill you according to the timeframe you signed up with (Monthly, Quarterly, Yearly, etc.). Monthly billing will be billed every 30 days, from the day you signed up, for all other payment terms you will be billed at the end of the period you have pre-paid. We will make every attempt to contact you which includes sending automatically generated invoice e-mails to remind you that you have outstanding balance to be paid; we may also phone you as a courtesy reminder if no response to emails is received and the account has past its due date.

All accounts not paid within 3 days from the due date will be suspended. A late payment fee of 15% will be applied to accounts which are late by more than 3 days. After 3 days and on up to 15 days, your account will remain suspended and you will be allowed to request backups during this time by ticket support request at a fee of $15.00 each backup. After 15 days your data is considered backed up, therefore granting us the right to terminate your account and you will still owe any late fees applied during this. You must cancel services properly.

All managed VPS services will be suspended 24 hours after payment is due, and late payment processing fees applied 48 hours after the due date.

If your account remains unpaid we reserve the right to forward the account to a collections agency for collection.

B2.6. Cancellations

You must provide at least 7 days notice before the next scheduled billing DUE date in order to cancel your service or you will be liable to pay the full amount for the next billing period. In order to cancel, ALL prior balances MUST be paid. You may be requested to submit identification information for your security. Any outstanding debt after 30 days will result in account termination and amounts owed may be handed over to a third party collections agency.

ANY ABUSE TO ANY OF OUR STAFF WILL RESULT IN SUSPENSION / TERMINATION of your account with us. Please be nice so we can help you better.

B2.7. Uptime SLA Agreement

The Uptime Service Level Agreement (Uptime SLA) is currently set at 99%. Any downtime occurring will result in a credit to your account for the amount of time down (not more than the total value of your account). Things excluded in this Uptime SLA include; site hackings, downtime due to customer faults, errors in Apache or other such services which result in less than 30 minutes of downtime. We will notify you of all scheduled maintenance and scheduled maintenance will not contribute to our uptime record.

B2.8. Abuse Complaints

All Abuse complaints must be responded to within 24 hours. Failure to reply will result in either action taken on your behalf or service suspension or any other suitable remedy. WDC reserves the right to remove content not adhering to local, state or federal laws.

B2.9. Terms May Change at any Time

These terms and conditions may change at any time. It is up to the customer to check upon these terms whenever necessary. We will attempt to notify you if major changes do happen to occur that would affect you.

B2.10. More Information

Web Design Cafe Pty Ltd resells hosting through Hostgeek, and full terms and conditions are available here.

PART B.3 - Website Design Services

The following Service Specific Terms and Conditions are applicable if you have selected in your Application to receive website design Services from us.

B3.1. Definitions

In addition to the definitions in Part A (General Terms), the following definitions also apply to Part B.3 of these Service Specific Terms and Conditions:

Advanced Design Processes means the creation of elements of a website including, but not limited to the header, navigation, feature images and visual sections of the site. The determination of what is considered an "advanced design process" in Part B.3 is in our absolute discretion.

Client Approval has the meaning given in clause B3.3.8;

Completion Timeframes has the meaning given in clause B3.3.7;

Website Design Services has the meaning given in clause B3.3.2;

Custom Templates means new Templates created by us based on your particular specifications, design or direction;

Customised Website Design Services has the meaning given in clause B3.3.9;

Initial Build Cost means the total amount of all Website Design Services purchased by you as identified in your Application and as set out in the Welcome email identified in clause B3.3.3, The cost of any additional Website Design Services (such as for example a Social Media Marketing Services Package) purchased by you during the Website Design and Construction process will be added as applicable to the Initial Build Cost.

Live means the point in time when your website is activated, rendering the website published and publically accessible on the internet through the World Wide Web;

Minor change means anything not deemed by us to be a Structural Change. The determination of what is considered a "minor change" under Part B.3 is in our absolute discretion.

Scope of Work has the meaning given in clause B3.6;

Structural Change means any changes to the website that requires moving elements of the website including, but not limited to the header, navigation, feature images and visual sections of the site. The determination of what is considered a "structural change" under Part B3 is in our absolute discretion.

Templates means our website design templates (including static pages, animations, forms and other data or materials) which we make available from time to time to use as a basis for designing your Website and includes Custom Templates;

Under Construction Website has the meaning given in clause B3.3.8;

Website Construction Phase has the meaning given in clause B3.3.5;

Website Change Requests has the meaning given in clause B3.3.6;

Website Design Phase has the meaning given in clause B3.3.4;

Website Design Services means any Core Website Design Services and Customised Website Design Services.

B3.2. Payment

  1. All Charges for Website Design Services provided by us are payable upfront, or as otherwise set out in your Application.
  2. If you order Customised Website Design Services, you must provide an initial, non-refundable upfront deposit of the amount specified in the Application (or, if no amount is stated in the Application, $1,000) and any other charges we make for Customised Website Design Services provided by us are payable upfront, or as otherwise set out in your Application.
  3. If you do not pay your Charges when they fall due, we may suspend your Website Design Services and/or suspend your access to Customer Content or your Website.

B3.3. Website Design Services

3.1 Interaction between Webhosting Services and Web Design Services

In order to receive Website Design Services from us you must also select one of our Webhosting Services packages in your Application. The Service Specific Terms and Conditions for Webhosting Services (Part B.2) will also apply to you in relation to the Webhosting package chosen by you.

3.2 Website Design Services

  1. For the web design packages inclusive of hosting, we will:
  1. provide you with initial access to our Templates so you can choose a Template for your Website;
  2. provide a reasonable amount of consultation with our Personnel (which in our absolute discretion may be by phone, email or any other mode of communication) in order to design and set up your Website; and
  3. Make live and publish your Website when completed, in accordance with the specifications for those packages in the Application (together, Website Design Services).
  1. We may require you to pay additional Charges based on our then-current consultation rates, including up to the total sum of your Initial Build Cost for each request, where we consider you are requiring more than a "reasonable amount of consultation" and the determination of what is considered "reasonable amount of consultation" under clause B3.3.2.1.2 is in our absolute discretion.
  2. We reserve the right to begin designing and construction of your website after a maximum period of 45 days from the Commencement Date or the date we accept your request in an Application to provide Webhosting and Web Design Services (whichever is applicable), regardless of the amount (if any) of content and imagery submitted by you to us. Your website will be posted live, accessible under a preview link, as soon as the website construction is completed by Web Design Cafe.

3.3 Commencement of Work, Allocation of Hosting Space and Welcome email

On the Commencement Date or the date we accept your Application to provide Webhosting and Web Design Services, a web hosting space is immediately allocated for you. You will receive a Welcome to Web Design Cafe Web Services email consisting of an agreement summary and other information.

3.4 Website Design Phase

With help and input from you, Web Design Cafe will design and develop the website. You may submit Customer Content to Web Design Cafe by logging onto your account at www.webdesigncafe.com.au, by emailing Web Design Cafe at admin@webdesigncafe.com.au.

In submitting Customer Content if you provide links to sample sites you like this is for general information purposes only and to assist Web Design Cafe with the design of your website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically requested and such duplication does not infringe upon the intellectual property rights of others. Web Design Cafe will not be held liable for accuracy of information, typos, or spelling errors in any of the Customer Content approved by you and published on the website.

Once Web Design Cafe receives the Customer Content including any imagery from you, the website design and content proofs will be developed by us. Upon completion of the design and content proofs, Web Design Cafe will provide you with an email so you can access and review the website design and content proofs. If you consider any changes are necessary, you should contact Web Design Cafe. In this Website Design Phase, you may request two (2) Structural Changes. Web Design Cafe will make all necessary consequential changes and you will be reissued new design and content proofs to check and track the changes by email. If you require more than two (2) Structural Changes then those may, in our discretion, be deemed beyond the "reasonable amount of consultation" and result in additional charges to you.

Once approval of the design and content proofs is gained from you or is deemed to have been obtained in accordance with this Agreement, the construction phase of your website will begin.

3.5 Website Construction Phase

Construction of the website will begin based on the approved design and content proofs arising out of the Website Design Phase. No Structural Changes can be made during this Website Construction Phase without additional charges being incurred by you.

Any advanced design processes requested that are not specified in the description of the product or service initially purchased, may result in additional charges for which you will be notified of in advance.

You will be notified by email or phone when construction of the website is completed and fees for Webhosting Services will begin as stated in clause B2.2.1.

During the Website Construction Phase you may request free of charge two (2) Minor Changes and you should contact us. We will make all necessary consequential changes and you will be notified via email or phone to check and track the changes. If you require more than two (2) Minor Changes then those may, in our discretion, be deemed by us to be beyond the reasonable amount of consultation and result in additional charges to you.

3.6 Website Change Requests

Based on your Application, we will design, construct and go live with your website in the way set out in the Agreement. If you request changes or variations to the website which, in our absolute discretion, go beyond the scope of the work set out in your Application then you may incur and will be billed for additional Charges which will be assessed on our then current consultation rates. If Web Design Cafe does not agree to your requests or changes because we have deemed them to go beyond the scope of the work set out in your Application, you are still obligated to pay all fees incurred and due up to the date that we do not agree to do further work.

3.7 Completion Timeframes

You understand, agree, and acknowledge that Web Design Cafe does not guarantee a time frame for completion of ANY website. This is in part because it is difficult to complete a website without design involvement, approvals and participation coming in a timely and efficient way from you. In addition, if you continue to submit additional content throughout the development process, or request additional modifications to the site design, the completion time frame is increased. Other factors that may influence the completion date of a website include, but are not limited to, complexity of your project(s), availability of Web Design Cafe personnel, payment status of your account, etc.

If you do not respond to Web Design Cafe communications and, as a result, Web Design Cafe is not able to start or complete the website, you are still responsible for all fees incurred including, but not limited to, design purchase price, set-up fees, enhancements purchased and monthly hosting charges that begin accruing according to this Agreement.

3.8 Client Approval

You understand and agree that if you do not respond within 21 days to Web Design Cafe' notification or requests for missing information, the website, along with the functionality of the website and the services rendered, will be deemed to be approved by you, and the website will be designed, constructed and taken live with the missing information "as-is" or "under construction".

You are responsible for reviewing all design and content proofs upon Web Design Cafe' request for approval. You understand and agree if you do not respond after 21 days to Web Design Cafe' request, your website will be designed, constructed and taken live using a generic "Coming Soon" website design template.

Your website will be posted live, accessible under a preview link, as soon as the website construction is completed by Web Design Cafe. You are responsible for testing the functionality of the website upon Web Design Cafe' request for approval, and notification that the website has been completed. This includes, but is not limited to, functionality of all website pages, database, e-commerce store, Learning Management System, payment functions, galleries, forums etc.

You understand and agree that if you do not respond within 21 days to Web Design Cafe' request for approval and notification that the website has been completed, the website, along with the functionality of the website and services rendered, will be deemed to be approved by you and you agree services have been rendered and the functionality of the website has been tested and approved.

The website may be posted live within 60 days from the Commencement Date if Web Design Cafe is required to complete content and design without your complete input or content.

3.9 Customised Website Design Services

If you have ordered "Customised" website packages in your Application, we may provide additional or alternative Services to the Core Website Design Services, such as:

  1. analysis and advice on your current website;
  2. creation of a new Website using our Templates; or
  3. creation of a new Website using a Customer Template,

in accordance with the specifications for that package in the Application (together, Customised Website Design Services).

B3.4. Customer Content

Without limiting any of the General Terms:

  1. we are not in any way responsible for the Customer Content;
  2. you are liable and remain liable for the Customer Content in all respects
  3. the Acceptable Use Policy applies to your use (and your End User's use) of the Website and any Customer Content uploaded to the Website or provided for incorporation on the Website; and
  4. we are under no obligation to provide, source, monitor or edit Customer Content. You are wholly responsible for providing, sourcing, approving, maintaining and editing Customer Content for your Website.

B3.5. Your use of the Website and Templates

5.1 General

We are not in any way responsible for any use by you (or an End User) of the Website, Templates or the Website Design Services (including any website owned by you or a third party that may be linked to the Website, whether such a link is provided by us or by a third party).

5.2 Usage limitation

You may only use a Template on a single Website only. If you require multiple Websites, you must purchase additional Website Design Services (and an additional hosting account - see Part B.2) even if the additional Website uses the same design.

5.3 Unauthorised use

You must not:

  1. place any of our Templates, modified or unmodified, on any medium (including any diskette, CD, DVD, external hard drive, website or any other medium); or
  2. copy, reproduce, adapt, communicate, or recreate any of the Templates or other design concepts used by us (including page layouts or colour schemes) for your use (except in accordance with this Agreement), re-distribution, licensing or sale.

5.4 Intellectual Property Rights

Further to clause 10 of the General Terms:

  1. all Templates, and any improvements, enhancements or developments to those Templates created in the performance of the Website Design Services, are owned, licensed or controlled by us or the third party that is identified as being the provider of the material and information;
  2. except as expressly permitted under this Agreement, you must not use, sell, license, modify, tamper with, alter or otherwise deal with the Templates;
  3. if we have created a Custom Template for your use as part of our Customised Website Design Services, you hereby assign to us absolutely and beneficially, the whole of your right, title and interest in and to the Custom Template with effect on and from the date of creation of the Custom Template.

5.5 Website modification

  1. If you have purchased the Core Website Design Services, then you may only make modifications to the Customer Content of the Website, and only by:
  1. using the customer content management system on the www.webdesigncafe.com.au website in accordance with this Agreement and any terms and conditions of use set out on the www.webdesigncafe.com.au website; or
  2. for an additional Charge as specified by Web Design Cafe (unless you have signed up for Website Support Services), by calling Web Design Cafe and directing its Personnel to make changes in accordance with 5.5(i).
  1. If you have purchased Customised Website Design Services, then you may:
  1. make modifications to the Customer Content of the Website in accordance with 5.5.1.1 and 5.5.1.2 above; and
  2. request Web Design Cafe to make other changes to the Website (including any Template) at additional Charges to be agreed.

B3.6. Search engine optimisation services

If we provide you with any search engine optimisation services, you agree that we may access your website and systems for the purpose of providing those services.

PART B.4 - Website Support Services

The following Service Specific Terms and Conditions are applicable if you have selected in your Application to receive website support services from us.

B4.1. Definitions

In addition to the definitions in Part A (General Terms), the following definitions also apply to these Service Specific Terms and Conditions:

Support Services means any support Services for website design Services ordered by you on your Application or otherwise requested by you.

B4.2. Payment

  1. All Charges for Support Services provided by us are payable monthly in advance on the terms of our invoice issued to you, or as otherwise set out in your Application.
  2. If you do not pay your Charges when they fall due, we may suspend your Support Services in accordance with this Agreement.
  3. If you do not wish to renew your Support Services at the end of any fixed period for provision of those Services, you must notify us 10 days prior to the end of that period (or end of the month if you have agreed to a month by month contract in your Application).
  4. If you do not notify us in accordance with clause 2(c), your Support Services will be automatically renewed for a further fixed contract period (of the same length as your initial period) at the end of the term and we will invoice you for the Charges associated with this renewal. You agree to pay the Charges set out in the invoice when they fall due.

B4.3. Support Services

  1. If you have selected in your Application to receive our Support Services package, this clause 3 will apply.
  2. Our personnel will:
  1. provide up to one hour's work on your website per billing month. This includes any time our Personnel spend on search engine optimisation services. If you do not use this service, this time will not roll over into your next billing month;
  2. if requested by you, conduct a monthly review of your website and use reasonable endeavours to ensure all links are working and all images can be viewed;
  3. provide technical support via email or phone during office hours between the hours of 8 am and 5 pm on Mondays - Fridays (except any day that is a public holiday in South Australia or the state from which we are providing you the Support Services);
  4. provide, if requested by you, quarterly reports on the work we have carried out for you;
  5. backup the content of your website on a daily basis. While we will use reasonable endeavours to ensure that your website is fully and accurately backed up each day, you acknowledge and agree that we will have no responsibility for any data loss or any other loss that you or your End Users incur as a result of our backup service (or our failure to implement our backup service);
  6. if you have selected to receive Social Media Marketing Services from us in your Application, will update your social media sites with content on your website from time to time; and
  7. will use reasonable endeavours to make any requested changes to your website within 5 Business Days.
  1. You acknowledge and agree that our Personnel may access and edit your website without notice to you in order to perform any technical aspect of the Support Services (such as search engine optimisation) that we reasonably consider necessary.

PART B.5 - Social Media Marketing Services (LD+)

The following Service Specific Terms and Conditions are applicable if you have selected in your Application to receive social media marketing Services from us.

B5.1. Definitions

In addition to the definitions in Part A (General Terms), the following definitions also apply to these Service Specific Terms and Conditions:

Social Media Account means an account created in your name with a Social Media Site;

Social Media Marketing Services means any social media marketing services ordered by you in your Application or as otherwise requested by you;

Social Media Page means a webpage on a Social Media Site created via a Social Media Account;

Social Media Site means one or more of:

  1. Facebook at www.facebook.com;
  2. Twitter at www.twitter.com;
  3. MySpace at www.myspace.com;
  4. LinkedIn at www.linkedin.com;
  5. Google+ at plus.google.com;
  6. Web Design Cafe online directory page at www.localdirectories.com.au;
  7. YouTube at www.youtube.com; or
  8. Google Places at places.google.com,

as selected by you in your Application or as agreed from time to time.

Supplied Content means all data, media or content provided by you to us for the purpose of receiving the social media marketing Services; and

Supplied Details means all information supplied by you, to us, for the purpose of receiving the social media marketing Services from us.

B5.2. Payment

  1. Payment for all Social Media Marketing Services is due and payable in advance.
  2. All Social Media Marketing Services are provided on a per domain name basis. If you require Social Media Marketing Services in relation to another domain name, you must purchase additional Social Media Marketing Services from us.

B5.3. Services

We will use reasonable efforts to provide to you the Social Media Marketing Services, including:

  1. setting-up Social Media Pages for you on the Social Media Sites as agreed in your Application;
  2. setting-up a Social Media Account for you on the Social Media Sites as agreed in your Application (if required); and
  3. uploading your Supplied Content onto your Social Media Pages.

B5.4. Information required

You agree to provide us with all information to enable us to provide the Social Media Marketing Services to you, and warrant that all Supplied Details are true and correct, and belong to you. You acknowledge that any failure by you to provide such requested information will be detrimental to our ability to provide the Service, and we will not be responsible for any resultant failure in delivering the Service.

B5.5. Appointment as agent

You appoint us to act as your agent in providing the Social Media Marketing Services, including, but not limited to:

  1. access and utilise the Social Media Sites for the purposes of providing the Social Media Marketing Services;
  2. use your Supplied Details and Supplied Content for the purposes of providing the Social Media Marketing Services;
  3. enter into all applicable Social Media Site terms and conditions you are required to accept and agree to in using and accessing the Social Media Sites on your behalf; and
  4. if you have selected in your Application to receive ongoing Social Media Marketing Services from us as part of our Support Services, to do the acts set out in subclauses (a) to (c) above on an ongoing basis for the period you receive Support Services from us.

B5.6. Password security

You will at all times keep your Social Media Account and Social Media Page passwords and log-in details secure. You agree that you are entirely responsible for when and how your Social Media Account or Social Media Page is used, including use by us in providing the Social Media Marketing Services in accordance with the Agreement.

B5.7. Responsibility for content

You agree that you are solely responsible for all Supplied Information and Supplied Content and any use of it by us in providing the Service in accordance with this Agreement.

B5.8. Licence to Supplied Details and Supplied Content

You grant us a licence to use, modify and adapt your Supplied Details and Supplied Content for the purpose of providing the Social Media Marketing Service to you and you agree to your Supplied Details and Supplied Content being published on your Social Media Pages.

B5.9. Your use of the Service

You agree that:

  1. you are the owner of, or have the appropriate licences to, all Supplied Content;
  2. all Supplied Details belong to you, and are true and correct;
  3. you are responsible for all content displayed on your Social Media Page, and that we have no connection or responsibility either to you or any third party for any content displayed;
  4. you are solely responsible for your Social Media Page;
  5. your use (and our use on your behalf) of the Social Media Sites is at your own risk;
  6. unless you have selected in your Application to receive ongoing Social Media Marketing Services from us as part of our Support Services, our association with your Social Media Accounts or Social Media Pages is limited to our creation of your Social Media Accounts (if required) and Social Media Pages as your agent. Our association with your Social Media Accounts or Social Media Pages will cease immediately once your Social Media Accounts (if required) and Social Media Pages have been created and you have been notified of the same; and
  7. you have read, understood and agree to all applicable terms and conditions relevant to the Social Media Sites.

PART C: Acceptable Use Policy

C1. Definitions

Spam means unsolicited commercial electronic messages and is defined and administered in the Spam Act 2003 (Cth).

C2. Purpose

  1. The purpose of this document is to explain Web Design Cafe' expectations and requirements regarding the fair and acceptable use of the Services.
  2. By using part or all of the Services, you agree to comply with this Acceptable Use Policy.
  3. We may update this Acceptable Use Policy from time to time. You agree to regularly check our website at www.webdesigncafe.com.au for updates.

C3. Fair Use Policy

  1. You agree to the following usage restrictions in relation to all Email Hosting Services offered by us:
  1. the total storage limit for your Email Hosting Services (across all 10 mailboxes in total) is 2 gigabytes; and
  2. each individual email sent or received from an email account hosted by us will have an attachment limit of 15 megabytes. Any email above this limit may not be able to be sent or received.
  1. If your Email Hosting Services reaches the limit set out in clause 3(a)(i) you will not be able to send or receive emails.
  2. In addition to any other data usage restrictions set out in your Application, you agree to the following usage restrictions in relation to all Website Hosting Services:
  1. each website hosted will have a maximum data transfer limit of 500 gigabytes per billing month (including both data uploaded and downloaded from the website); and
  2. unless expressly stated otherwise in your Application, your website will have a maximum of 3 gigabytes storage space on our servers.

C4. Prohibited and restricted content

You must not use, attempt to use, or allow use of, the Services in a way which results, or may result in the placement, sending or involvement of prohibited or restricted content on the internet. Prohibited and restricted content includes:

  1. content that is, or may reasonably be, classified "RC" or "X18+" by the Australian Government Classification Board (formerly the Office of Film and Literature Classification) based on criteria contained in the Classification (Publications, Films and Computer Games) Act 1995 (Cth), the Classification Code and the Guidelines for the Classification of Films and computer Games 2005;
  2. content that contains pornography or actual, implied or simulated sexual activity;
  3. content that contains excessive or sexual violence;
  4. content that contains excessive profanity;
  5. content that contains detailed instruction in crime;
  6. content that contains racist or sexist opinions or slurs, or that is likely to incite discrimination, hate or violence towards a person or group because of their race, religion, gender, sexuality or nationality;
  7. content that contains or relates to material that is, or is reasonably likely to be considered, obscene, defamatory, abusive or offensive;
  8. content that is likely to be considered unsuitable for minors (without using appropriate and clear warnings);
  9. content that enables a minor to access material inappropriate for a minor; and
  10. content that establishes, or attempts to establish, contact with a minor otherwise not known to you.

C5. Prohibited business practices and breach of law

You must not use, attempt to use, or allow use of, the Services in a way which:

  1. causes a post or transmission of any of the content referred to in clause 4;
  2. facilitates a violation of this Acceptable Use Policy;
  3. is, or may be considered, misleading or deceptive to third parties (including in online marketing practices);
  4. involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities;
  5. infringes on a third party's rights or our rights (including Intellectual Property Rights);
  6. constitutes a misuse or breach of a third party's or our Confidential Information or material protected by trade secrets (including making unauthorised transmissions of such material);
  7. illegally stores, uses or distributes software;
  8. transmits or engages in threatening, obscene or offensive speech or materials (including advertising, transmitting, storing, posting, displaying or otherwise making available: child pornography, offensive sexual content or materials or any other obscene speech or material);
  9. is used to engage in electronic stalking or other forms of harassment (including using abusive or aggressive language);
  10. results in a breach by you of any obligation, contractual or otherwise, that you owe to any person; or
  11. is used to gain unauthorised access to any computers, information, or communication devices or resources;
  12. is used to damage, modify or destroy files, data, passwords, devices or resources of Web Design Cafe, other users or third parties;
  13. otherwise results in you or us breaching, or being involved in a breach of:
  1. principles of law or equity established by decisions of courts;
  2. statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency; and
  3. requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that have the force of law.

C6. Spam

You must not use, attempt to use, or allow use of, the Services to:

  1. send, or cause or do any act that is involved in the sending of, Spam;
  2. provide a capability that permits third parties to send Spam; or
  3. send email to a recipient after the recipient has unsubscribed from your mailing list or has advised you otherwise that they do not wish to be on the mailing list.

C7. Malicious and restricted behaviour

You must not use, attempt to use, or allow use of, the Services in connection with:

  1. creating, distributing or providing information or data that is designed to provide or allow a form of unauthorised control of any computer, network or data, or otherwise harm, or cause an adverse effect on any computer, network or data (including without limitation: internet viruses, worms, Trojan horses, phishing, kiting, pinging, flooding, mail-bombing, denial of service or distributed denial of services attacks);
  2. hacking or otherwise accessing a third party's or our servers, systems, networks or data (including through open relay, port probing or packet sniffers) without consent, regardless of whether or not that conduct has any adverse effect;
  3. running a proxy or proxy-related services;
  4. running any stand-alone, unattended server-side processes at any point in time on the server, including any and all daemon (for example, IRCD);
  5. running any gaming servers or services;
  6. storing of any data not related to the associated website;
  7. running any form of online file repository using the Web Design Cafe Services;
  8. executing any script on the Services that takes more than 60 seconds to complete;
  9. an act that causes, or is likely to cause, any of the Web Design Cafe servers to crash;
  10. an act that creates, sends or alters (including spoofing and use of third party mail servers), the contents of an electronic message for the purpose of hiding, obscuring, moving or deleting the source of the message or making the message appear as though it has come from a different party to the party that sent it;
  11. sending electronic chain letters;
  12. distributing messages to inappropriate or unrelated forums, newsgroups or mailing lists;
  13. manipulating or bypassing the content usage limits of the Services; or
  14. undertaking activities that cause or may cause third party service providers to place our internet protocol addresses on a blacklist or block them.