TERMS OF SERVICE
Unless otherwise agreed in writing, the supply of all Services offered by LOCAL WEB ADVISORS Pty Ltd (ABN 56 640 394 501) and/or its associates, related parties, successors and assigns (collectively referred to as “Provider“) to all Clients, as the term is defined in 2.1 (see below), shall be governed by these Terms of Service (“Terms“) set herein.
2.1.In these Terms, the following terms have the following meanings:
2.1.9. Confidential Information means, with respect to a party to these Terms:
220.127.116.11. translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
developed by the Provider;
2.3. Domain Name Service means the domain name search, registration, parking and renewal service supplied by the Provider;
2.4. Email Marketing Service means the email marketing service or software provided by the Provider;
2.5. Pay Per Click Advertising Service means the consulting service supplied by the Provider in respect of online advertising through third party search engines or websites or on Client Websites where costs are incurred or income is earned based on the number of visitors clicking on applicable advertisements;
2.6. Provider’s Website means www.localwebadvisors.com.au;
2.7. Service End Date means:
2.8. Service Fees and Charges means the fees and charges payable by the Client in respect of a specified Service as specified in the applicable Proposal/Service Order Form, including, without limitation, any applicable interest charges and Taxes thereof;
2.9. Proposal/Service Order Form means the order form required to be completed by the Client for the purchase of a specified Service which may be accessed from the Provider’s Website or is given to the Client by the Provider or the Provider’s employee, which details shall include, without limitation, the following specifications:
18.104.22.168. applicable milestones reflecting the progress of the development of the Client Website; and
2.10. Search Engine Optimization Service or SEO Service means the service provided by the Provider to improve the visibility of client’s website in a web search engine’s unpaid results;2.11. Service Period means, with respect to each Service purchased by the Client, the duration that Service as specified in Clause 7;
2.12. Services mean the services to be supplied to the Client under these Terms and as specified in the applicable Proposal/Service Order Form;
2.13. Social Media Marketing Service means the service provided by the Provider that uses social media to market Client’s product or service;
2.14. Start Date mean the date of commencement of a Service as specified in the applicable Proposal/Service Order Form;
2.15. Systems mean the servers, networks, central systems and/or databases of the Provider or third party suppliers through which Client Websites are hosted under the Client Website Hosting Service supplied by the Provider;
2.15.3. Users mean:
3.1.1. Client Website Design and Development Service, including:
22.214.171.124. provision of custom web application;
3.1.2. Client Website Hosting Service;
3.1.3. Client Website Maintenance Service;
3.1.4. Client Website Copywriting Service;
3.1.5. Domain Name Service;
3.1.6. Email Marketing Service;
3.1.7. Search Engine Optimization Service;
3.1.8. Social Media Marketing Service;
3.1.9. Pay Per Click Advertising Service; and
3.1.10.other new or improved services, functions, features, contents or facilities as offered from time to time.
3.2 In addition to the Services described in Clause 3.1, the Provider also offers technical support for Clients, including:
3.2.1 assistance on resolution of Client Website issues;
3.2.3 ‘how-to’ guidance
4.3 Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
5.2 For the purposes of these Terms:
5.2.3 a contract for the supply of Services based on such specifications or modified specifications, as the case may be, and on the provisions of these Terms shall be deemed to have occurred when the Provider issues to the Client a Tax Invoice indicating its acceptance of the Client’s offer.
5.3 Any changes to the specifications subsequent to the deemed occurrence of the contract for the supply of Services under Clause 5.2(5.2.3) shall be made by the Client only by way of a written request to the Provider and shall be effective only upon written acceptance of the request by the Provider. The Provider is entitled to accept, reject or modify any such requests for changes.
6. Payment of Service Fees and Charges
6.4 In addition to the Service Fees and Charges for each Service, the Provider shall be entitled to impose further charges in respect of the following:
6.4.2 excessive use of the Provider’s technical support service for reasons other than the fault or negligence of the Provider;
6.5 All Service Fees and Charges exclude Goods and Services Tax unless otherwise noted. Any Goods and Services Tax incurred in respect of a Service shall be charged by the Provider at the applicable rate and must be paid by the Client at the same time or together with the relevant Service Fees and Charges.
7. Service Period
7.2 Any renewal or cancellation of a Service shall be made in accordance with Clause 8 as noted therein for the applicable Service and any suspension or termination shall be in accordance with Clause 15. For any early termination, cancellation or suspension of service, no refunds whatsoever will be made to the Client, and the Provider will retain funds received
8.Conditions for Purchasing the Services
8.1 General: The Client acknowledges and agrees that in agreeing to purchase, or in purchasing any or all of the Services, the Provider shall use its best endeavors to achieve the objective of the Client in availing a particular Service, however, the Client acknowledges that the Provider makes no representation or warranty as to merchantability or fitness for a particular purpose, including any representation or warranty that a Service:
8.1.1 will be uninterrupted or error free;
8.1.2 will meet the Client’s requirements, including, without limitation:
126.96.36.199 any requirements relating to sales or profits, or lack of sales or profits thereof, as subsequent to the purchase of the Email Marketing Service or the Pay Per Click Advertising Service or SEO Service or Social Media Marketing Service; or
8.1.3 will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services or the Systems.
8.2 Client Website Design and Development Service: In agreeing to purchase, or in purchasing the Client Website Design and Development Service, the Client acknowledges and agrees that:
8.2.9 in developing the Client Website:
188.8.131.52 such usage is subject to the copyright notices of the Provider and third parties respectively which must be adhered to by the Client;
184.108.40.206 with the exception of the limited warranty given by the Provider in accordance with Clause 13.2 and to the extent permitted by law, the Provider makes no representations, warranties or conditions, whether expressed or implied, relating to the functionality, display, artistry, design or layout of the Client Website developed for the Client or that the Client Website will meet the requirements of the Client or that the operation of each page of the Client Website shall be uninterrupted or error-free. Accordingly, all Client Website Design and Development services are supplied on an “as-is” basis.
8.2.10 upon payment of 50% of the Service Fees and Charges, the client shall be entitled to cancel the Service prior to the client confirming the Specifications for the Service or within 10 days of the Order Date, whichever is earlier.
8.3 Client Website Hosting Service: In agreeing to purchase, or in purchasing the Client Website Hosting Service, the Client further acknowledges and agrees that:
8.3.1 all Client Websites are hosted on Systems operated by either the Provider or third party suppliers on behalf of the Provider. Accordingly:
220.127.116.11 the Provider may, but shall not be obliged to, archive Client Website Content using backup mechanisms on a regular basis for the purposes of disaster recovery and in the event of equipment failure or data corruption, the Provider may restore Client Website Content from its last known working archive. Notwithstanding the aforesaid, the Client acknowledges and agrees that:
18.104.22.168.3 the Provider shall not be liable whatsoever for any incomplete, out-of-date, corrupt or otherwise deficient Client Website Content recovered from the Provider’s backups;
22.214.171.124 the Provider or any third party suppliers may, in their absolute discretion, upgrade, revise or change any or all parts of the Systems, or may migrate from one System to another, at any time and from time to time. Neither the Provider nor any third party suppliers shall be liable whatsoever for any loss or damage resulting from such upgrade, revision, change or migration and the Provider shall not take any responsibility for any Services failure resulting from the same;
8.3.3 in uploading, posting, emailing, transmitting or making available in any other way any Client Website Content through or in connection with a Client Website hosted on the Systems:
126.96.36.199 the Client must not upload, post, email, transmit or otherwise make available:
188.8.131.52 without incurring any liability to the Client and at the Client’s sole cost and expense:
184.108.40.206.2 the Provider may access, preserve, and disclose all Client Content supplied by the Client if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
220.127.116.11.2.4 protect the rights, property, or personal safety of the Systems, Users and/or the public.
18.104.22.168.3 the Client is strictly prohibited from using excessive amounts of CPU processing or excessive bandwidth, disk space and other resources on the Provider’s Systems which is inconsistent with normal usage patterns and which exceeds the amount purchased by the Client. Any violation of this Clause may result in corrective action by the Provider, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement in accordance with Clause 15, which actions may be taken at the Provider’s sole and absolute discretion;
8.3.4 the Client grants the Provider a non-exclusive, royalty-free, worldwide license of the duration of the Service Period or any renewals or extensions thereafter, to do any or all of the following to the extent necessary to perform the Services:
22.214.171.124 make archival or back-up copies of the Client Website and Client Website Content.
8.3.5 that at the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, will be automatically renewed for the term equivalent to the Service Period (‘Renewed Service Period’):
126.96.36.199 these Terms shall remain valid and in force for the entire duration of the Renewed Service Period
8.3.6 the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed.
8.4 Domain Name Service: In agreeing to purchase, or in purchasing the Domain Name Service for parking a domain name, the Client acknowledges and agrees that:
8.4.4 upon payment of 100% of the Service Fees and Charges, the client shall be entitled to cancel the Service.
8.5 Pay Per Click Advertising Service: In agreeing to purchase, or in purchasing the Pay Per Click Advertising Service, the Client acknowledges and agrees that:
8.5.5 the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed.
8.6 Search Engine Optimization Services/ SEO Service: In agreeing to purchase, or in purchasing the Search Engine Optimization Services/ SEO Service, the Client acknowledges and agrees that:
8.6.5 that at the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, will be automatically renewed for the term equivalent to the Service Period (‘Renewed Service Period’):
.6.5.1 the Client may anytime during the Renewed Service Period give a written notice to the Provider for the discontinuance of the Service;
188.8.131.52 these Terms shall remain valid and in force for the entire duration of the Renewed Service Period.
8.6.6 the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed. After the expiry of the minimum term, if the client wishes to cancel the service, at least 30 days’ notice is required.
9. Conditions for Using the Services
9.4 The Client agree and acknowledges that the Provider will make changes to or update Client’s website to achieve optimum results for the Service availed by the Client. The Client must notify the Provider in writing if it does not agree for the Provider to make any changes or modification to the Client’s Website.
10.1 Systems and Services:
10.1.1 Save for any domain names purchased or owned by the Client and/or its related entities, the Client hereby acknowledges and agrees that:
10.1.1.4 the Client may not copy, modify, ‘reverse-engineer’ or commercially exploit in any other way the Systems or the Services or any parts thereof.
10.2 Client Website Design, Layout and Content:
10.2.1 All intellectual property rights embodied in any and all designs, layout or content created or developed for, or supplied to, the Client by the Provider pursuant to the purchase of Client Website Design and Development Service are owned by the following:
10.2.1.2 with respect to the source code of the Client Website, by the Provider, subject to any prior third party rights and interests embodied in any parts of the source code, including source codes governed by the terms of a General Public License.
10.2.2 The Provider hereby agrees that upon full payment of all outstanding sums due and owing to the Provider pursuant to these Terms or any other agreements between the Provider and the Client, the Provider shall assign to the Client all proprietary rights, title and interests embodied in the custom design, layout and/or content of the Client Website.
10.3 All rights which are not expressly granted to the Client shall hereby be reserved by the Provider.
11. Relationship of Parties
11.2 The Client shall have no authority or power to bind the Provider or to contract in the Provider’s name or to create a liability against the Provider in any way or for any purpose.
12.Client General Warranties
12.1 The Client hereby represents and warrants that:
12.1.6 all information furnished, and to be furnished by the Client, shall be true, correct and complete.
13.1 Subject to the limited warranty under Clause 13.2 in respect of the Client Website Design and Development Service, the Provider, its subsidiaries, affiliates, officers, agents, co- branders or other partners and employees shall not be liable to the Client for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
13.1.5 any other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from or arising in connection with:
13.2 The Provider hereby agrees, with respect to any Client Website Design and Development Service purchased by the Client, to provide the Client with a limited warranty for a duration of three (3) months, ending on the last day of the third (3rd) month of the relevant Service End Date. The warranty shall be subject to the following conditions:
13.2.2 the warranty cannot be enforced if:
184.108.40.206 in the sole and absolute discretion of the Provider, the problem or issue is too severe to be fixed, such problem or issue having been caused by reasons beyond the control of the Provider, including by reason of the fault or negligence of the Client, its employees or any other representatives.
13.3 The Client agree to fully indemnify, defend and hold the Provider, and its subsidiaries,
affiliates, officers, agents, co-branders or other partners, and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of the Client’s:
13.3.4 violation of the rights of any person.
13.4 Subject to the provisions of these Terms, if for any reason, the Provider is liable to the Client for loss or damage of any kind, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to these Terms, such liability shall be limited only to the total Service Fees and Charges paid by the Client for the Services in the previous three (3) month period.
14.1 A party notifying or giving notice under these Terms must give notice:
14.1.3 if directed at the Client, to the postal address, fax number or email address specified in the Client’s Account as updated from time to time;
14.2 A notice given in accordance with this Clause is received:
14.2.4 if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient’s, mail server within five (5) days after the date of the email.
220.127.116.11 if the Client fails to comply with any provision in these Terms (including failure to pay all Service Fees and Charges due and any other charges imposed in respect of the same), or do, or allow to be done, anything which in the opinion of the Provider, may have the effect of jeopardizing the operation of the Systems or the Services, until the breach (if capable of remedy) is remedied;
15.1.4 In the event of a suspension or termination for any reason whatsoever, the Provider shall be under no obligation whatsoever to provide the Client with any copies of Client Website Content or any other information, materials or data stored in the Client’s Account.
15.2 Transfer of Service
15.2.3 The Provider may in its absolute discretion disagree to Transfer the Service.
16.1 Each party agrees that all Confidential information which is exchanged between them under this agreement, is confidential and must not be disclosed, divulged or otherwise placed at the disposal of any person not being a party to this agreement except:
16.1.5 If the information is or becomes generally and publicly available other than through the default of a party who divulges the information;
16.2 The provisions of this clause continue in full force and effect for a period of 2 years after the termination of this agreement.
The Client is not entitled to assign, dispose or in any way otherwise relinquish possession or control of all or any part of its obligations under these Terms.
18. Entire Agreement
These Terms shall represent the entire agreement between the parties and supersedes all previous agreements, terms, conditions, representations or claims which may have been made or agreed upon between the parties.
19. Governing Law
These Terms shall be governed exclusively by the laws of Queensland, and the parties hereby submit to the exclusive jurisdiction of the courts of that state.
20. Waiver and Severability
20.2 If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.