By purchasing a Web Market Smart Website you confirm that you (the client) agree to adhere to these terms of service. These terms of service are legally binding and represent an agreement between you (the client) and Web Market Smart (the provider/”Web Market Smart/WMS”). (Last updated 1st July, 2018.)
GENERAL TERMS OF SERVICE
- Web Market Smart designs, builds and hosts websites and provides online and telephone support.
- The Client has the right to, title, and interest in a website containing intellectual property owned by the Client together with, but not limited to textual content, video and/or audio. Clients and Resellers acknowledge that any design created by Web Market Smart or its resellers using the Web Market Smart CMS templates remain the property of Web Market Smart and cannot be replicated elsewhere.
- The Client warrants Web Market Smart to host its website unless otherwise advised in writing per the relevant notice periods.
- Web Market Smart websites are built either in its own proprietary CMS platform or on an alternate open source CMS platform.
- This agreement shall take full force and effect as and from the date of the Client’s purchase of the website and upon making payment the Client is deemed to have read and understood these terms.
- Web Market Smart shall supply to the Client all services necessary to effectively host the Client’s website and make available for a fee to the Client the services of Web Market Smart to provide to the Client online support, telephone support for the ongoing administration and maintenance of the Client’s website hosted by Web Market Smart in circumstances where the Client requests such support.
- This Agreement may change from time to time. In the event that this Agreement changes, Web Market Smart shall advise the Client in writing at least 30 days before the changes shall take effect. If the Client asserts that any changes to this Agreement show unfair bias against the interests of the Client in favour of Web Market Smart, the Client agrees to dispute the application of the changes in writing prior to the changes taking effect. In the event of a dispute the Client will either be provided with a written exemption from the specific changes within this Agreement that the Client asserts to be unfair, or if this is not possible the Client may at its option terminate this Agreement by giving 30 days’ notice to Web Market Smart whereupon Web Market Smart shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement. In the event Web Market Smart are required to advise the Client of such a change of the Terms of Service or Costings Agreement, the Client may at its option terminate this Agreement by giving 30 days’ notice to Web Market Smart whereupon Web Market Smart shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- The Client agrees that Web Market Smart is assigned the right to use any and all of the Client’s IP at no charge to showcase the work completed by Web Market Smart for the Client, at Web Market Smart’s discretion. This may include but not limited to trademarked logos, supplied images and written copy supplied by the client in the production of any Web Market Smart product or service.
- Web Market Smart have a Fair Use policy, and the Client upon executing this Agreement is deemed to have read and understood the Fair Use policy of Web Market Smart and agreed to be bound by it.
- The Fair Use policy of Web Market Smart may change from time to time. In the event this policy changes Web Market Smart shall advise the Client in writing within 7 days of the change. In the event Web Market Smart are required to advise the Client of such a change of the Fair Use policy, the Client may at its option terminate this Agreement by giving 30 days’ notice to Web Market Smart whereupon Web Market Smart shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- Notwithstanding anything contained in the Fair Use policy of Web Market Smart as set out in Clause 6 of this Agreement, the Client warrants to Web Market Smart that it is the lawful owner of, or has permission from the lawful owner to publish all intellectual property published on its website that it has requested Web Market Smart to host. In the event that the Client, in allowing Web Market Smart to host its website breaches any law of, but not limited to any State or Territory of the Commonwealth of Australia and/or the Commonwealth of Australia, Web Market Smart may terminate this Agreement without prejudice to the rights of Web Market Smart to seek one or all of compensatory damages indemnities relating to liability incurred as a result of the Client’s aforementioned breaches.
- Web Market Smart may terminate the Agreement without notice to the Client in the event Web Market Smart becomes aware of any of the following:
Content on the Client’s website (including content generated by users of the Client’s website) that does not comply with the Fair Use policy of Web Market Smart as set out above
• Notwithstanding the terms of Fair Use policy of Web Market Smart any matters that is either offensive and/or obscene, seditious, blasphemous, defamatory or inappropriate in the opinion of Web Market Smart
• Repudiatory conduct as defined under Clauses 6.
• Any outstanding invoices not paid to Web Market Smart within the specified payment terms under Clause 6.
- The Client warrants to Web Market Smart that all email accounts and passwords will contain a strong password protocol which is defined as a password that is reasonably difficult to guess in a short period of time either through human guessing or the use of specialised software. A Strong password should contain: at least 8 characters, contain both upper and lower case alphabetical characters, have at least one numerical character and at least one special character. A strong password should not: spell a word or series of words that can be found in a standard dictionary, spell a word with a number added to the beginning or the end, or be based on any personal information such as user ID, family name, birthday etc.
- Should an email account be corrupted due to failures to adhere to this protocol and Web Market Smart’s own mail system is compromised, Web Market Smart reserves the right to immediately terminate the affected email domain and all associated accounts without providing backups, and charge to the client an hourly rate of $129 inc GST for all technical works required to resolve issues arising from this.
- The Client warrants to Web Market Smart that it shall not by its conduct frustrate Web Market Smart from hosting its website or withhold the necessary support to Web Market Smart for the effective hosting of the website. Web Market Smart shall not be liable for any interruption to the provision of the Client or the hosting services where an interruption is beyond the control of Web Market Smart including but not limited to force majeur.
- Web Market Smart warrant to the Client that 99.99% of the time in any given month the Client’s website will work when accessed from a browser with unrestricted access to the internet. In this Service Level Agreement the expression “availability” shall have the meaning of availability to users of the internet unaffected by local or network limitation. Web Market Smart shall not be liable for any losses in circumstances where the Client’s site is offline at any point reflecting a monetary sum beyond the sum required paid for hosting in that given calendar month.
- In the event Web Market Smart terminates this Agreement as a result of any breach by the Client and withdraws its hosting services, whereby the Client’s web page is no longer hosted on the internet:
Web Market Smart will not be liable for any loss or damage arising from the withdrawal of the hosting services from the Client.
- Should any breach be resolved and the Client desires the reactivation of services, Web Market Smart will charge a reactivation fee of no less than $299 including GST to cover Web Market Smart’s reasonable costs incurred as a result of the breach, to be paid in full before reactivation.
- Should a site be deactivated for a period in excess of 6 month for any reason a new website would need to be purchased at a cost to be advised at such time in accordance with current applicable pricing structures.
- Web Market Smart will advise the Client of any foreseeable interruption to the hosting service, and provide up-to-date network status and service availability information at http://status.Web Market Smart.com.au.
- The Client agrees to advise Web Market Smart of any change of contact details. Web Market Smart will not be liable for any consequences of tax invoices or other notices or documentation being sent to incorrect addresses as a result of a failure of the Client to provide notice of a change of said details, including deactivation of websites due to nonpayment of invoices.
- In this Agreement Web Market Smart shall provide services to the Client for fees as quoted by Web Market Smart.
- Web Market Smart charges all fees upfront, in advance. Payment of website hosting and support fees are invoiced, and payable within 7 days. For Clients wishing to pay via direct deposit an invoice for six or twelve months of on goings will be issued to the Client no less than seven days before the due date. Any unpaid invoices will result in the suspension of all services as per Clauses 11 – 14 (above).
- Web Market Smart reserves the right to increase ongoing fees related to the hosting and technical support of Client websites. Annual price increases may occur at any time in accordance with service package alterations and any changes in technology and the infrastructure required to maintain the Client’s website and/or email services.
- Web Market Smart reserves the right to classify a project as ‘abandoned’ should no contact be made by the Client for three months or more. All abandoned projects will be archived for a further period of three months only, at which point the project will be purged from our servers and a new website package will be quoted in accordance with the current pricing structure.
- Any abandoned projects for which a deposit has been paid will not be refunded, and any work completed by Web Market Smart remains the property of Web Market Smart.
- Any extra hours completed by Web Market Smart beyond the initial deposit received, will be invoiced to the Client upon the project being marked as ‘abandoned’. Should the Client fail to pay this invoice Web Market Smart reserve the right to engage its debt recovery agency to recoup monies owing on its behalf.
- Should additional changes be requested outside the scope of the project brief or allocated project hours are reached, additional fees will apply. Web Market Smart warrants that an estimate will be provided for approval before any additional work is commenced.
SERVICE PROVISION AND COSTINGS
- Web Market Smart shall provide up to a maximum of 50GB data transit, per calendar month. Any additional data transit required shall be supplied and charged at $10 per GB.
- Web Market Smart shall provide an ongoing support allocation inclusive in its regular ongoing costs with limits as defined under Clauses 6.1. Any support incidents raised beyond the terms of Clauses 20-28 will be charged at a rate of $129 per hour including GST. Web Market Smart reserves the right to waive additional charges for support at its discretion. The Client will not be charged for any support incidents determined by Web Market Smart to be attributable to a problem with the underlying software or an error on the part of Web Market Smart.
- Web Market Smart reserves the right to decline the provision of technical support if a Client has unpaid hosting, or other outstanding amounts for which payment has not yet been received.
- The Client warrants to Web Market Smart and agrees to pay Web Market Smart in full, in advance, at all times. No work will be commenced until payment has been received.
- Execute all documentation necessary to allow Web Market Smart to directly debit from the Client’s credit card monthly charges for all and any products and/or work undertaken by Web Market Smart for the Client.
- Availability of funds: Ensure that valid credit card details are supplied to Web Market Smart prior to the first of each calendar month, with sufficient funds to make payment to Web Market Smart for any monies due and owing.
- Should payment not be made by or on the due date of invoice, Web Market Smart reserve the right to suspend any and all services and at its discretion charge a reactivation fee of $299 before reinstating these services.
- Should payment of any recurring monthly fees be declined where follow up from our Accounts Team is required for two or more consecutive months, Web Market Smart reserve the right to charge the Client twelve months of website hosting in advance, in addition to a $99 administration fee for alterations made to the account.
- Make payment upon receipt of a tax invoice from Web Market Smart for all charges including but not limited to website hosting, technical support, SEO, websites and marketing packages, which shall all be charged in advance.
- Make payments to Web Market Smart upon receipt of a tax invoice from Web Market Smart for excess charges for messages or data which shall be charged in arrears.
- Make payments punctually on the first of each calendar month in accordance with the billing periods which shall be based on calendar months.
- In the event this Agreement is terminated by the Client, the Client agrees to pay to Web Market Smart an amount to be charged on the basis of all services provided by Web Market Smart that remain unbilled as at the date of termination. Any fees paid in advance for monthly hosting is non-refundable.
- Provide to Web Market Smart 30 days written notification for any cancellation request, whereby the following calendar months’ hosting will also be charged as a final invoice. Notice must be provided by the account holder or a nominated representative (as identified by the Client) and clearly state the service to be cancelled, along with the date the cancellation is required to be actioned. If immediate cancellation is requested, Web Market Smart reserve the right to charge the Client one calendar month’ s hosting (in addition to any current amounts owing) before actioning the cancellation request. If the cancellation cannot be actioned due to non-payment, monthly fees will continue to incur and notice will need to be provided again once the account is up to date.
- In the event the Client is a corporation, the directors of the Client agree to be parties to this Agreement and guarantee the performance of the Client and further agree to assume each and every liability and obligation of the Client pursuant to this Agreement in the event of and as and when the directors of the Client are called upon to do so for whatever reason. The obligations of the directors of the Client include but are not limited to the payment of any and all tax invoices rendered to the Client by Web Market Smart.
FAIR USE, REPUDIATORY CONDUCT AND DISPUTES
- Dependent upon the ongoing care plan chosen, Web Market Smart generally applies fixed limits to the amount of support we give to our Clients per Web Market Smart’s proposal. The Client understands that any support required over and above the allocated support will be charged in arrears at the end of each month, at an hourly rate of $129.
- The Client agrees to be bound by Web Market Smart’s Fair Use policy outlined in this section.
- The Client agrees not to engage in excessive contact, which includes but is not limited to:
Repeatedly asking for assistance with matters outside Web Market Smart’s control, responsibility, or remit, after Web Market Smart has advised the Client that this is the case, including but not limited to: basic computer assistance, assistance with emails on devices other than a desktop, business advice or other technical assistance not related to Web Market Smart’s services.
• Repeatedly and unreasonably asking for assistance with matters with which Web Market Smart has previously provided training. The Client agrees to endeavour to understand the training they are provided.
• Excessive phone calls or emails to the extent that it has a detrimental impact on our ability to service our other Clients.
• Demands for assistance with non-urgent matters outside of Web Market Smart’s support hours where urgency is determined at the sole discretion of Web Market Smart.
- If Web Market Smart determines that the Client is engaging in excessive contact, it will provide written notice to the Client of this determination, and the Client agrees that Web Market Smart at its sole discretion may as a result undertake any or all of the following actions.
- Apply a restriction on contact time permitted with the Client.
- Invoice the Client for all or a portion of time spent on the phone, responding to emails and support tickets, and any other undertakings required to service the Client.
- Suspend and/or terminate the Client’s provision of services, not before a third warning has been given.
- Web Market Smart agrees that notices of excessive contact must be provided within 30 days of said excessive contact and the determination can only be made on the basis of activity within the 90 days preceding the date the notice is issued.
- The Client agrees that any dispute it wishes to make to a notice of excessive contact must be provided in writing to Web Market Smart within 14 days of the issue of the notice.
- The Client agrees not to engage in repudiatory conduct, which includes but is not limited to:
Abusive behaviour towards staff, agents, partners or directors of Web Market Smart, which includes threatening behaviour and/or speech.
• Defamation of staff, agents, or directors of Web Market Smart, or of Web Market Smart or related businesses.
- The Client agrees that in instances of repudiatory conduct, Web Market Smart is entitled to immediately terminate this agreement without prejudice to its rights to seek one or all of compensation, damages, or indemnities relating to the conduct.