Web Action Sales - Terms and Conditions

Please read the following Agreement for WAS's Services. Before being provided with WAS Services you are required to accept this Agreement. This Agreement is viewable at any time by clicking on the following website www.webactionsales.com.au/terms.html

WAS reserves the right to change these Terms and Conditions and the version that is published on the WAS Website (see above link) should always be taken as the most recent and binding version of this document.
1.PARTIES

1.1) The parties in this agreement are as follows Web Action Sales ("WAS") and YOU ("The Client").

2. DEFINITIONS

2.1) In this Agreement, including the recitals, unless the context otherwise requires, the following terms have the following meanings:

"Agreement" means these Terms and Conditions, including its schedules.
"WAS" or "WAS's" means Peter Polesel t/as WEB ACTION SALES and Web Action Sales Pty Limited.
"The Client" means YOU or the organisation (if any) on whose behalf YOU are purchasing WAS's services.
"You" or "Your" means the person or entity for which WAS is creating Software, or providing with Hosting.
"Terms" means the terms of this Agreement.
"Software" means any computer software, programming code, graphics and associated media and printed materials produced or altered by WAS for this contract, or any further contract between the parties, and may include online or electronic documentation.
"Development", "Programming" means the creation of Software.
"Design" means the creation of artwork in electronic, or hardcopy (print) presentation.
"Transfer" means to sell, assign, transfer, convey, otherwise disclose, or alienate.
"Work" or "Schedule of Work" means the work Authored by WAS as per the schedule.
"Hosting" means the housing and serving of electronic files (web pages) from the WAS web servers.
"Service" or "Services" means design, development, programming, and/or hosting.
"Deadline" or "time estimate" means a set time frame for work to be completed by.
"Overdue" means a period of 14 days has expired since a Tax Invoice was sent to the client without full payment being received.
"Delivered" means the transfer of files or artwork in electronic or hard copy format.

3. RECITAL

3.1) The Client wishes to enter into a contract with WAS to purchase WAS’s Services.

4. CHARGES, TAX INVOICES AND PAYMENT OF ACCOUNTS

4.1) WAS requires a deposit, usually up to 50%, before any work is carried out. Once work has started and any drafts, preliminary websites or project related analysis has been issued to the client this deposit is non refundable with no exceptions. When the website has been fully completed WAS requires the balance to be paid before the website goes live. If at any point during the Website Development Cycle a client wishes to cancel, they may do so but will be invoiced an amount that WAS judges to be proportional to the amount of work completed for the project. WAS expects payment by cheque, credit card or cash within 7 days of the date of any invoice issue.
4.2) WAS will provide the Services as specified in the Schedule of Work at the price and at the time stated in the written acceptance of the Clients instructions to proceed with the Work.
4.3) The Client will pay for the Work at the rate specified in writing by WAS.
4.4) Work will be considered finished 7 days after live installation to the requested hosting environment and final payment will then be due. Design will be considered finished when final artwork is delivered to the Client, or printer.
4.5) Client must pay to WAS Goods and Services Tax at the prevailing GST rate, subject to receipt of a valid tax invoice. GST exempted Clients are required to provide WAS with a notice of exemption from the Australian Tax Office.
4.6) Any queries of the invoice concerning dates/times/descriptions of jobs/rates etc. must be made within 48 hours of receipt of the invoice. After 7 working days following receipt of the invoice, the invoice will no longer be subject to amendments.
4.7) WAS reserves the right to charge interest at the rate prescribed by the Uniform Civil Procedure Rules 2005 on overdue accounts starting from when the Tax Invoice became overdue.
4.8) WAS reserves the right to terminate Services if client has accumulated one or more overdue invoices.

5. RECOVERY OF DEBTS

5.1) WAS reserves the right to terminate services (without notice) to clients with outstanding invoices, and, by whatever means possible, to recover WAS’s intellectual property.
5.2) WAS reserves the right to recover the cost of outstanding invoices including any legal costs associated with collection.

6. INDEMNITY

6.1) The Client guarantees that it owns, or has licensing rights to use, all information provided to WAS including any trademarks.
6.2) The Client agrees to defend, indemnify and hold WAS harmless from and against any and all claims, losses, liabilities and expenses (including legal fees) related to or arising out of the Services provided by WAS to Client under this Agreement, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided here under, or for any content published by Client using the Services.

7. LIMITATION OF LIABILITY

7.1) WAS takes all care to create and provide robust and secure Services. However, WAS will be under no liability to the Client, or any customers of the Client, in regards to any loss of profits or data, consequential loss, interruptions to the service or any damage which may be endured or acquired or which may arise directly or indirectly from WAS’s services.
7.2) The Client or customers of the Client will not be entitled to any form of compensation from WAS in the event of loss of data, consequential loss, interruptions to the service or damage arising directly or indirectly from WAS’s Services.
7.3) As information transmitted through the Internet is generally not confidential, WAS does not guarantee the protection of the Clients privacy. The Client will take all necessary measures (including changing Clients password from time to time) to protect the secrecy of Clients user identification and/or password. WAS will not be liable for any loss suffered by Client or any third party due to any wrongful or fraudulent use of Clients account by Client or any other person.
7.4) WAS does not recommend storing credit card details on the WAS web server. However, if credit card details are to be stored upon the WAS web server, WAS will take all care to safeguard these credit card details without any liability whatsoever. WAS recommends that a secure third party process be used for all credit card transactions (i.e. a secure payment gateway or a bank) so that no customer credit card details are stored on the WAS web server. If you are accepting credit card payments upon your website it is important that you know and accept the risks associated with credit card transactions and you understand that there are security measures that you must take yourself such as ensuring that no unencrypted credit card information is stored on your computer or within your website. You must also ensure that all credit card transactions are transmitted in an encrypted form using the SSL protocol. It is essential that you comply with the online security of the SSL protocol and that your SSL certificate is always valid.
7.5) WAS will not be held responsible to the Client, or any customer of the Client, for any loss or misuse resulting from the use of credit card details.
7.6) WAS takes no responsibility for the fulfilment of a transaction in any way. WAS accepts no liability for any losses that may result from use of fraudulent transaction data howsoever this might arise.

8. TERMINATION OF SERVICES

8.1) Once a Schedule of Work has been agreed and instructions to proceed have been accepted by WAS, a contract to complete the Work exists.
8.2) Work may only be cancelled or amended with the agreement of WAS.
8.3) In any event the cost of all Work performed by WAS for the Client, whether used by the Client or not, will be invoiced and must be paid for.
8.4) WAS reserves the right to recover the cost of outstanding invoices including any legal costs associated with collection.
8.5) WAS reserves the right to terminate a contract.

9. GENERAL

9.1) A party must not assign or permit a third party to obtain the benefit of its rights and interests under this Agreement except with the prior written consent of the other parties which will not be unreasonably withheld.
9.2) A party must do everything necessary or desirable to enable each other party to observe and perform its covenants and obligations under this Agreement.
9.3) None of the terms of this Agreement, or anything done under or by virtue of this Agreement or any other Agreement, instrument or document, or judgement or order of any court or judicial proceeding, will operate as a merger of any of the rights and remedies of the parties under this Agreement, and those rights and remedies will at all times continue in force.
9.4) If any provision of this Agreement is void, voidable, unenforceable, or illegal in its terms, but would not be void, voidable, unenforceable or illegal if it were read down and, it is capable of being read down, that provision will be read down accordingly.
9.5) If, notwithstanding clause 9.4 a provision is still void, voidable, unenforceable or illegal:

if the provision would not be void, voidable, unenforceable or illegal if a word or words were omitted, that word or those words are severed; and
in any other case, the whole provision is severed; and the remainder of this Agreement will be of full force and effect.

9.6) Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of that prohibition or un-enforceability without invalidating the remaining provisions or affecting the validity or enforceability of that provision in another jurisdiction.
9.7) This Agreement will be binding upon and inure to the benefit of the parties and, unless repugnant to the sense or context, to their respective administrators, personal representatives, successors and permitted agents and assigns.

10. GOVERNING LAW AND INTERPRETATION

10.1) This Agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the parties, by entering into this Agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
10.2) In this Agreement except to the extent that the context otherwise requires:

Reference to legislation or a provision of legislation includes change or re-enactment of the legislation or a legislative provision substituted for, and legislation and statutory instruments and regulations issued under, the legislation;
Words denoting the singular include the plural and vice versa;
Words denoting individuals or persons include bodies corporate and trusts and vice versa;
Headings are for convenience only and will not affect interpretation;
Reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
Reference to a document or Agreement includes reference to that document or Agreement as changed, novated or replaced from time to time;
Words denoting any gender include all genders;
Where a word or phrase is given a definite meaning in this Agreement a part of speech or other grammatical form for that word or phrase has a corresponding meaning;
Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
Reference to a time and date concerning the performance of an obligation by a party is a reference to the time and date in Sydney, New South Wales even though the obligation is to be performed elsewhere.

11. CHOICE OF JURISDICTION AND LAW

11.1) This Agreement will be governed by and construed in accordance with the law from time to time in force in New South Wales, Australia and the Parties to this Agreement submit to the non-exclusive jurisdiction of the courts of that state.

12 WAIVER

12.1) The failure, delay or omission by a Party, to exercise any power or right conferred upon that Party by this Agreement will not operate as a waiver of that power or right, nor will any single exercise of any such power or right preclude any other or future exercise of the power, or the exercise of any other power of right under this Agreement.
12.2) A waiver of any provision of this Agreement, or consent to any departure by a Party from any provision of this Agreement, must be in writing and signed by all Parties and is effective only to the extent for which it is given.

13. VARIATION

13.1) WAS reserves the right to change these Terms and Conditions and the version that is published on the WAS Website should always be taken as the binding and most recent version of this document.
13.2) Existing contracts would complete using the terms and conditions agreed at the time of contract.

14. NO PARTNERSHIP OR AGENCY

14.1) The rights, duties, obligations and liabilities of the Parties under this Agreement are several and not joint or collective. Each Party will be individually responsible only for its obligations as Specified in this Agreement.
14.2) Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the Parties for the purposes of the Partnership Act, Income Tax Assessment Act or any other law of any jurisdiction.

15. COPYRIGHT AND OWNERSHIP

15.1) WAS retains all copyright and ownership of ALL created work, software, development, design, and artwork unless otherwise agreed by WAS in writing.
15.2) WAS will grant to the Client a non-exclusive licence to use the software embodied in the Client's website as they wish. This license allows the Client to use, change, modify, or amend the code as they desire and to incorporate the code or portions of the code into other software as needed. This licence does not allow the Client to pass on or resell the licence or the code to any other entity that is not closely associated with the Client. This licence does not limit WAS from reusing portions of the code in its own work for other clients now or in the future.
15.3) Where the client provides WAS with copyright designs and or other artwork for use in the Clients web site the copyright of such supplied designs and or artwork remains with the Client.

16. DEADLINES AND TIME ESTIMATES

16.1) A best effort will be made by WAS to meet time estimates.
16.2) The Client will not be entitled to any form of compensation from WAS in the event of WAS not meeting a set deadline or time estimate.
16.3) Should the project overrun the time estimate by 100% the Client may terminate the contract. Should this arise clause 8. Termination of Services would apply.

17. CLIENT CONFIDENTIALITY POLICY

17.1) WAS treats all client website applications and businesses dealings as confidential. WAS will not disclose any proprietary information to third parties unless it is deemed necessary for the maintenance of the server and associated programs, or disclosure is required by law.

18. SERVICES TO BE PROVIDED IN GOOD FAITH

18.1) WAS provides its services in good faith on the understanding that all its services will not be used for any illegal or immoral purpose. In particular where part of the supplied service is to redirect a user to another site it is the responsibility of the client to ensure that this redirection does not contravene any statute or law both here in Australia or in the country where the redirected site is hosted.
18.2) If required by an authorised representative of the Government of Australia, or of the country where the redirected site is hosted, WAS will disable such redirection (if possible) without notice to the client and without compensation.

HOSTING SERVICES

19. SERVICES TO BE PROVIDED

19.1) WAS will provide a web hosting service as detailed in its offer to the Client for the time frame and for the payment specified.
19.2) Additional Services will incur additional fees. The fees and time scale for providing Additional Services will be discussed with and approved by the Client before the Work is carried out.

20. CHARGES AND PAYMENT - WEB HOSTING SERVICE

20.1) WAS will provide the web hosting service to the Client during the time frame stated and for the fee stated provided that the Client pays the fees on time and does not make unauthorised use of the service.
20.2) The Client will pay for the web hosting at the agreed monthly hosting rate specified in writing by WAS. The web hosting payment will be due before commencement of the web hosting unless otherwise agreed by WAS in writing.
20.3) Client must pay all telecommunications charges (including STD charges if applicable) for use of Service. WAS does not assess what telecommunications charges apply to the location from which the Client connects to the web host.
20.4) Client must pay to WAS Goods and Services Tax at the prevailing GST rate, subject to receipt of a valid Tax Invoice. GST exempted Clients are required to provide WAS a notice of exemption from the Australian Tax Office.
20.5) WAS reserves the right to recover the cost of outstanding invoices including any legal costs associated with collection.

21. UNAUTHORISED USE BY CLIENT

21.1) The Client must not participate in, or allow, any unauthorised use of the WAS facilities or Services either by the Client, or its employees, or third parties, contractors or customers and in particular, the Client must not engage in any:

Spamming: i.e. the sending of unsolicited commercial email or unsolicited bulk email to email addresses without the receiver expressing an interest in receiving such information. This includes the forwarding of chain letters and Ponzi Pyramid Selling Schemes.
Intellectual Property Violations: i.e. the sending of copyrighted material or material where subsisting intellectual property rights exist over the Network. The Network being that entire electronic media connected to and by the server on which the website is hosted.
Using obscene speech or placing Obscene materials upon your website or the Network.
Using abusive language or placing defamatory material upon your website or the Network.
Forging of Headers: i.e. changing headers or messages so that it appears that the message originates from another user or machine or non-existent machine.
Unauthorised Access to Other Computers or Networks: i.e. the attempts, successful or otherwise, to access other computers or Networks for which the Client does not have official agreement to access.
Distributing Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities: i.e. the deliberate and knowing distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities with the aim of causing harm to other users of the Network.
Other Illegal Activities: i.e. any activity proscribed in law by a proper authority in Australia.

22. SPAM POLICY

22.1) The act of sending unsolicited email ("spam" or "junk mail"), or allowing other parties to send such email through your account is not acceptable. Distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited E-mail or spam is also prohibited. You are responsible for sending email in accordance with the current legislation and for following the rules for sending commercial electronic messages. All mailing lists must follow the Spam Act 2003 and email messages must only be sent to an email address when the person responsible for that email address has given consent to receiving email messages.
22.2) WAS accepts no liability for any losses resulting from using the mailing list applications built by WAS however this may arise. WAS shall not be liable for any damages relating to using the mailing list applications. You understand that compliance with the anti-spam legislation is essential and it is your responsibility to understand the spam legislation and to follow the guidelines.

23. SUSPENSION OF SERVICES

23.1) WAS maintains the right to manage and control access to systems and information stored within its servers as it deems appropriate, and may vary or suspend the Service.
23.2) WAS may suspend access to the Services if there is a security breach or if there is a malfunction in the Services to preserve data.
23.3) WAS may disconnect a Client from the Company system (forced logout) without notice if there is no use of the server system by that Client for a specified period (presently 10 minutes).
23.4) In the event that WAS suspends the Service, the Service will be automatically terminated 3 months subsequent to the suspension date if the account has not been reconnected prior to this date.
23.5) WAS reserves the right to suspend, without prior notice, some or all of the Service if WAS, in its absolute discretion, considers that the Client has not complied with one or more of the terms in the Agreement or has otherwise misused or abused the Service or:

The Services are used by a Client or a customer of the Client in a way considered inappropriate by WAS.
Providing the Services appears to expose WAS to any liability as a result of a breach of any law or any third party rights.
The Client breaches this Agreement.

24. INTERRUPTIONS TO SERVICE

24.1) WAS will not be held responsible for any delay, non performance, malfunction or any other degradation of performance of the web hosting service caused by any modifications, alterations or amendments due to changes requested or implemented by the Client.
24.2) In the event of a total systems failure resulting in the disruption of service to the Internet from the WAS Servers, WAS will endeavour to repair and restore the service to the Client as soon as possible. The time taken will depend upon the severity of the system failure and time of detection.
24.3) If failure is caused by the Client to whom access to the WAS Servers was given, the Client shall pay all costs to repair the Client server.

25. TERMINATION OF WEB SERVICES

25.1) WAS requires a minimum of 30 days notice before the intended account termination date. The Client may elect not to continue to receive WAS Services however fees up to the date of termination will be payable.

26. LOSS OF DATA

26.1) WAS will take all appropriate precautions to safeguard the WAS Servers and and the data contained within, however WAS will not be held responsible for any loss of Client data stored or intended to be stored on the WAS Servers and / or on any back-up device.
26.2) The Client will not be entitled to any form of compensation from WAS in the event of loss of data.

SEARCH SERVICES

27. SEARCH ENGINE OPTIMISATION SERVICES

27.1) You acknowledge that we have no control over, and can accept no responsibility for circumstances which are outside our control, including:
27.2) We have no control over the policies of search engine companies with respect to the type of sites and/or content they accept - now or in the future. Your site/pages may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory company.
27.3) Due to the competitiveness of some key words/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, we cannot guarantee positions or consistency of positions for any particular key word, phrase or search term on any specific search engine or directory; either in the algorithmically determined listings, or in paid advertising (Pay Per Click) listings.
27.4) Some search engines and directories may take as long as 8 -12 weeks (and in some cases even longer) after discovery to review and index new pages added to your site. Newer sites (less than 12 month old) can sometimes take even longer (8 – 9 months is not uncommon) to be indexed and rank.
27.5) Occasionally, search engines will drop sites/pages for no apparent or predictable reason. Often listings will “reappear” without any additional submissions. Should your listing not reappear during the period of our retainer, we will make reasonable attempts to ascertain why the site/page was dropped, and contact you with the details.
27.6) We are not responsible for changes made to your web site by other parties; inbound links organised without our explicit knowledge, which adversely affect the search engine rankings of your web site; or where our recommendations or optimisation services are not implemented as provided.
27.7) Our accessibility review is provided as a guideline to search engine accessibility – it is not a comprehensive W3C human accessibility site review.

Web Action Sales - Terms and Conditions version 1.0 - 23/03/2009