Terms of Doing Business

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Wicked Web Design Terms of Doing Business

 

The terms of this document are to be agreed to by new clients of Wicked Web Design, by confirming their acceptance in writing (reply email is sufficient), or any payment towards the first invoice.

The following terms of business apply to any or all of the website design, website hosting, email, search engine marketing and web-related services to be provided by Wicked Web Design to you from time to time.

 

 

Wicked Web Design Terms of Doing Business……………………………………………………………. 1

1. Payment……………………………………………………………………………………………………………… 2

1.1 Payment Terms…………………………………………………………………………………………… 2

1.2 Payment Methods………………………………………………………………………………………. 3

2. Technical Support………………………………………………………………………………………………… 3

2.1 Overview……………………………………………………………………………………………………. 3

2.2 Email Accounts…………………………………………………………………………………………… 3

3. Cancellations……………………………………………………………………………………………………….. 4

3.1 Hosting………………………………………………………………………………………………………. 4

4. Approval Process………………………………………………………………………………………………… 4

4.1 New Website Design……………………………………………………………………………………. 4

4.2 Keyword Research Reports………………………………………………………………………….. 5

4.3 Keyword Shortlists……………………………………………………………………………………… 5

4.4 Optimisation & Content Writing…………………………………………………………………… 5

5. Disabling Accounts………………………………………………………………………………………………. 6

5.1 Right to disable websites……………………………………………………………………………… 6

5.2 Right to disable optimized pages…………………………………………………………………… 6

6. Debt Collections………………………………………………………………………………………………….. 6

6.1 Right to use a Debt Collector………………………………………………………………………… 6

7.  Search Engine Optimisation Disclaimers………………………………………………………………… 6

8.  Business Catalyst End-User Agreement…………………………………………………………………. 7

9.  Domain name registration terms of contracts………………………………………………………… 19

10. Exclusion and limitation of liability…………………………………………………………………….. 20

11. Modification to Terms………………………………………………………………………………………. 21

12. Severability……………………………………………………………………………..21

13. Assignment……………………………………………………………………………………………………… 21

14. Entire agreement……………………………………………………………………………………………….. 21

15. Governing law………………………………………………………………………………………………….. 21

16. Notifications & communications………………………………………………………………………… 22

 


1. Payment

 

1.1 Payment Terms

To minimise our costs and enable us to provide high value services at the best most competitive prices, we depend on all payments being made on time. This negates management and administration time being spent chasing overdue payments. We require payment schedules are to be adhered to, enabling us to deliver our service to clients in a timely manner, whilst ensuring we are compensated for the provision of our service.

 

Invoices less than $1,000

Invoices totaling less than $1,000 require full payment in advance to begin work unless otherwise agreed in writing.

 

Invoices $1,000 or more

Invoices totaling $1,000 and above can be paid by 50% deposit to begin work unless otherwise specified.

 

Progress Payments for Invoices of $1,000 or more

Where the completion of a job invoiced at $1,000 or more falls outside 30 days from the original deposit, a 25% progress payment is due 30 days after the original deposit for work to continue.  This payment is primarily required from clients where the collection of information or feedback from their end or work completed is slow.  Wicked Web Design will not progress further on such jobs unless the 25% progress payment is received.

 

Balance of Payments

Balance of payments are due prior to activating a website or associated pages or returning completed work (except for Link Popularity services).

 

  • New Websites – Upon receiving the balance of payment, the website will be made live or the relevant files sent to you within 2 working days.
  • Optimisation – Upon receiving the balance of payment, your optimised pages will be made live or the relevant files sent to you within 2 working days.
  • Link Building – Balance is due 30 days after the initial deposit.
  • Other services – refer to your invoice payment schedule for full payment terms.

 

Example:  You purchase an ‘Optimisation Package’ totaling $2,000+GST.  A deposit of $1,100 is required to begin work.  25 calendar days after the initial deposit you confirm the keyword shortlist and provide approval for Wicked Web Design to start the optimisation (which normally takes 5-10 working days).  5 calendar days later the optimisation work is still being completed – $550 (25% progress payment) is now due.  Upon receiving this payment a further 10 days later the optimized pages are approved and ready to be made live – the balance payment of $550 is now due. Upon receiving this payment your optimized pages will be made live within 2 working days. Any Payment made toward a project is accepted as consideration of acceptance of the full term of the contract.

 

 

1.2 Payment Methods

We accept payment by VISA, Mastercard, electronic funds transfer, and direct debit from all major credit cards and bank accounts.

 

 

2. Technical Support

2.1 Overview

We often receive calls from clients with website or email problems that are due to a number of factors including:

  • Their domain name expired due to not receiving renewal reminders because their email address changed.
  • Their hosting company is having technical difficulties.
  • Their computer setup has changed or requires reconfiguration.

 

In all instances where Wicked Web Design is called upon to provide technical support for issues outside our control and not of our making, we either require credit card details and approval to charge for our time, or a $200+GST deposit to our account from which we can draw down on for our time spent on resolving the issue.

 

Where a technical issue arises due to an issue with our systems or support, no charge will apply.

 

If you are having website or email difficulties, your first point of contact should be your hosting company.  Even where we have signed up an account on your behalf, the account is in your name and should be maintained by you. We are under no obligation to provide support in such instances unless under a support agreement.

 

We charge $110+GST per hour for technical support, billed in 15-minute increments.

 

Where funds are deposited into our account and not all funds are drawn on, we will refund the balance and provide a tax invoice for the time used within 3 business days.

 

2.2 Email Accounts

Wicked Web Design assists many clients with the setup of new email accounts when their new websites and hosting accounts are activated.  Once your new email accounts are set up, tested, and are working correctly, your Wicked Web Design Account Manager will ask you to send an email from each new account confirming that it is working.

 

If your email account(s) have problems after we have received the email confirming your email accounts are working, additional charges will apply should you require technical support for these email addresses.

 

 

3. Cancellations

 

3.1 Hosting

Website hosting can be cancelled by requesting and completing the ‘Hosting Cancellation Form’ and faxing to (08) 9467 7429, at least fourteen days prior to the end of your current hosting period.  Cancellation will take effect from the end of your current hosting period.

 

If we receive the Hosting Cancellation Form within 14 days of the end of your current hosting period, you will be charged a $45+GST administration fee, as our accounts department will have begun processing your next hosting period.

 

Note: When your hosting account is cancelled your website and emails will no longer be active unless you have arranged to transfer your website to another web hosting company.

 

 

4. Approval Process

4.1 New Website Design

As your new website is being developed, the Wicked Web Design staff member responsible for liaising with you will formally request a number of ‘sign-offs’ at various stages of the design process.  This may include:

  • Approval of the website header
  • Approval of the overall website template
  • Approval of specific pages or design elements
  • Approval to make the website live

 

Approval will be requested by email.  If changes are requested to elements of the design after approval has been given, this may incur additional charges.

 

Following discussions with your Wicked Web Design Account Manager regarding the design of your new website, your Account Manager may ask that you email your requests or approval, or he/she may email you to confirm your discussion.  If you are not happy with a design aspect of your new website, we ask that you detail the areas requiring improvement in an email to us.

 

Website design changes that are requested after approval will be quoted separately.

 

Note: Whilst we endeavour to produce websites and email templates in a browser-compliant format, not all browsers render in the same way and therefore websites and email templates may not display correctly across all browsers.  Websites produced by Wicked Web Design are tested in Microsoft Internet Explorer versions 6.0 and 7.0, and Mozilla Firefox version 3.0.  Email templates are tested in Microsoft Outlook 2007.  Display issues that occur within these browser versions will be corrected by Wicked Web Design at no charge.  Display issues that occur in alternative browsers can be fixed at a charge.

 

4.2 Keyword Research Reports

We will provide you with a Keyword Research Report that details our research into the most popular keyword variations used to find your products or services.  We take into account keywords suggested by you, information on your website, information on competitor websites, and other keyword areas our specialists think may relate to your business.

 

Upon receiving the report, your Wicked Web Design Account Manager will ask you if there are any other areas that you would like us to research.  If you are satisfied with the report, your Account Manager will ask you to email confirmation that no further research is required.

 

If you request further research after emailing your account manager saying you are satisfied with the report, additional research charges may apply.

 

4.3 Keyword Shortlists

Wicked Web Design will email you a Keyword Shortlist containing a recommendation of the best keywords to target for optimisation.  If you are satisfied with the Keyword Shortlist, we require email confirmation stating that we can begin optimisation using the chosen keywords.

 

If you request changes to the Keyword Shortlist after emailing your Account Manager with approval for the Keyword Shortlist, additional charges may apply for re-writing optimized pages.

 

4.4 Optimisation & Content Writing

Your Account Manager will email you access to the optimized pages or content writing done for your website.  You may request changes to the content by emailing, faxing or verbally describing the changes to your Account Manager.  After the changes are complete the revised page(s) will be sent to you for a final review.  You may request one further set of changes, after which further changes will incur a small fee.

 

Your Account Manager will seek approval for the optimisation or content writing by email.  If you request changes to your optimisation or content after emailing your Account Manager with approval, additional charges may apply for alterations.

 

5. Disabling Accounts

5.1 Right to disable websites

Wicked Web Design reserves the right to disable websites where:

  • We have access to your web hosting account;
  • At least 48 hours notice has been provided to the client by email and by phone;
  • Payment for a particular service has not been received; and
  • Payment is 14 days or more overdue.

 

5.2 Right to disable optimized pages

Wicked Web Design reserves the right to disable the optimisation performed on websites (i.e. return them to their previously un-optimised format) where:

  • Wicked Web Design installed the optimisation, regardless of whether the website is hosted by Wicked Web Design;
  • At least 48 hours notice has been provided by email;
  • Payment for a particular service has not been received; and
  • Payment is 14 days or more overdue.

 

 

6. Debt Collections

6.1 Right to use a Debt Collector

If payment is 14 days or more overdue, Wicked Web Design may engage the services of a debt collection agency for the purposes of collecting any outstanding payments.  Email notification will be provided when a debt collector is engaged.

 

 

NB:

Wicked Web Design has a “Fair Trading” Policy. We treat our suppliers with respect and pay all our accounts on time, usually we pay ahead of the due date. We ask that our clients treat us and the operations of our business with the same respect and consideration.

7.  Search Engine Optimisation Disclaimers

 

Our Search Engine Optimisation and Link Popularity services aim to get pages to rank in the top 20 results of the major search engines. However, as search engines can and do change their algorithms (rules and weighting factors) at any time, we cannot offer a guarantee that a specific ranking will be obtained or maintained. Our track record has been excellent as testified by our many clients nationally and internationally.

 

  1. Whilst we will try to improve the position of your website in the Search Engine results in response to a search request, we do not warrant that this outcome is in any way guaranteed.
  2. We cannot be held responsible for any changes to the position of your Web Site in the Search Engines results in response to a search request.

8.  Business Catalyst End-User Agreement

PAYMENT OR PART-PAYMENT OF A WICKED WEB DESIGN INVOICE FOR OR RELATING TO BUSINESS CATALYST CONFIRMS AGREEMENT TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF WICKED WEB DESIGN’S ONLINE SERVICE (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE.

As part of the Service, Wicked Web Design will provide you with use of the Service, including a browser interface, plug-in into some 3rd party products, web services access and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Wicked Web Design website incorporated by reference herein, including but not limited to Wicked Web Design’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

Privacy & Security; Disclosure

Wicked Web Design’s privacy policies may be viewed at http://wickedwebdesign.com.au/privacy-policy

Wicked Web Design reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing, weekly reports and other non-critical Service-related communications from Wicked Web Design from time to time. They may opt out of receiving such communications at that time or at any subsequent time by choosing the unsubscribe link from such communication. Note that because the Service is a hosted, online application, Wicked Web Design occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.

License Grant & Restrictions

Wicked Web Design hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Wicked Web Design and its licensors.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Wicked Web Design immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Wicked Web Design immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Wicked Web Design user or provide false identity information to gain access to or use the Service.

Account Information and Data

Wicked Web Design will make best endeavors to backup Customer Data every 24 hours. Wicked Web Design will not at any time retrieve Customer Data if it is accidentally or otherwise delete by you. In the unlikely case where Customer Data is lost because of software or hardware malfunction, Wicked Web Design will endeavor to restore to the most recent successful backup. Wicked Web Design takes no responsibility whatsoever whether implied or otherwise for the quality or frequency of Customer Data backup.

Wicked Web Design does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Wicked Web Design, shall have sole responsibility for the input accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Wicked Web Design shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Wicked Web Design will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Wicked Web Design reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Wicked Web Design shall have no obligation to maintain or forward any Customer Data.

During your use of the Service, Wicked Web Design will archive certain information as well as keep some usage and statistical information. In all cases Wicked Web Design reserves the right to delete archived, usage and statistical data irretrievably once it is older than three (3) months.

Intellectual Property Ownership

Wicked Web Design alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Wicked Web Design Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Wicked Web Design Technology or the Intellectual Property Rights owned by Wicked Web Design. The Wicked Web Design names logos, and the product names associated with the Service are trademarks of Wicked Web Design or third parties, and no right or license is granted to use them.

Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Wicked Web Design and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Wicked Web Design does not endorse any sites on the Internet that are linked through the Service. Wicked Web Design provides these links to you only as a matter of convenience, and in no event shall Wicked Web Design or its licensors be responsible for any content, products, or other materials on or available from such sites. Wicked Web Design provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the setup and ongoing fees and charges, and billing terms in effect at the time a fee or charge is due and payable. The amount payable will be equal to the setup and ongoing charges related to your plan plus any excess number of total User licenses requested times the per User license fee currently in effect. Payments may be made, in advance, monthly, half-yearly or annually, consistent with the Initial Term (the first License Term), or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Wicked Web Design with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add user licenses by executing an additional written Order Form. Added user licenses will be subject to the following: (i) added user licenses will be coterminous with the preexisting License Term (either Initial Term or renewed License Term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; (iii) where monthly License Terms are inacted user licenses added in the middle of a billing month will be charged in full for that billing month; and (iv) where half yearly and yearly license terms are inacted additional user licenses will be charged pro rata with a minimum charge of one month. Wicked Web Design reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party. Any and all fees paid in advance are not refundable if you cease to use the Service.

Limits and Excess Fees

The maximum disk storage space provided to you at no additional charge is dependent on the plan that you choose. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees.

The maximum amount of incoming traffic to your website is 100GB per month. Outgoing traffic from your website is not chargeable unless the ratio of incoming to outgoing traffic from your website exceeds 1:10 (i.e. 10GB inbound and 100GB outbound). Wicked Web Design reserves the right to negotiate an increased monthly fee effective from the next billing period should this ratio be exceeded.

The maximum number of email marketing broadcasts you may undertake per month is 10,000 if email marketing is part of your plan. If you require a larger broadcast per month, you will be charged the then-current email marketing fees.

The maximum number of free SMS messages that you can use is dependent on the plan that you choose. You will be charged for excess SMS messages sent in the next billing period at the then-current per SMS message fee.

Any failure by Wicked Web Design to so notify you shall not affect your responsibility for such additional storage and traffic charges. Wicked Web Design reserves the right to establish or modify its general practices and limits relating to storage of and traffic relating to Customer Data.

Billing and Renewal

Wicked Web Design charges and collects in advance for use of the Service. Wicked Web Design will automatically renew the License Term and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every 6-months for half-yearly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current plan fee plus any excess User licenses times the user license fee in effect during the prior term, unless Wicked Web Design has given you at least 30 days prior written notice of a fee change, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Wicked Web Design’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

You agree to provide Wicked Web Design with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Wicked Web Design reserves the right to terminate your access to the Service in addition to any other legal remedies.

Unless Wicked Web Design in its discretion determines otherwise: (i) entities with headquarters in United States will be billed in U.S. dollars (“U.S. Customers”); (ii) entities with headquarters in Australia will be billed in Australian dollars; and (iii) all other entities will be billed in U.S. dollars, Euros or local currency (if available) (“Non-U.S./Australia Customers”).

If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

 

Non-Payment and Suspension

In addition to any other rights granted to Wicked Web Design herein, Wicked Web Design reserves the right to suspend or terminate this Agreement and your access to the Service, if your account becomes delinquent (falls into arrears). Access to the Administration interface will be suspended immediately if an invoice is delinquent and is re-enabled when such delinquent invoices are paid in full. Wicked Web Design reserves the right to suspend or terminate your public website if delinquent invoices are 60 days overdue. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Wicked Web Design initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Wicked Web Design may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

Wicked Web Design reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Wicked Web Design has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

Termination upon Expiration/Reduction in Number of Licenses

This Agreement commences on the Effective Date. The Initial Term (the first License Term) will be as you elect during the online subscription process or as otherwise mutually agreed upon. You are obligation to pay for the service begins from the Effective Date and invoices must be paid according to the then current payment terms. Access to the Administration interface will be suspended immediately if an invoice is delinquent. Upon the expiration of the Initial Term, this Agreement will automatically renew for a successive License Term equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Wicked Web Design’s then current fees, and payable in advance. Either party may terminate this Agreement or reduce the number of User licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least fourteen (14) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Wicked Web Design will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Wicked Web Design has no obligation to retain the Customer Data, and may delete such Customer Data irretrievably, more than 30 days after termination.

 

Termination for Cause

Any breach of your payment obligations or unauthorized use of the Wicked Web Design Technology or Service will be deemed a material breach of this Agreement. Wicked Web Design, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Wicked Web Design may terminate a free account at any time in its sole discretion. You agree and acknowledge that Wicked Web Design has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

Subscribing to Extra Services

As part of the Service, you may be able to subscribe to extra features such as real-time alerts via SMS and email marketing. Each service may have a fixed monthly charge as well as data usage charges. In the case where usage charges apply, these will be calculated automatically and billed at the end of each calendar month or as mutually agreed based on the then-current Wicked Web Design pricing.

Service Level Agreement

Wicked Web Design will provide a service level of 99.98% uptime per month excluding scheduled downtime on average of 1 hour per week for system maintenance and upgrades. The service level comprises of your ability to access Customer Data via a web-browser interface and any other reliability, timeliness, quality, suitability, truth, availability or completeness of the Service is not covered in this agreement. Scheduled downtimes are set between the hours of 2000 to 0600 (AEST). In the unlikely event where Service Level Agreements are not met for any given month, a pro-rata rebate will be applied against the next License Term period. Normal billing will resume from the following period. No rebate applies nor is payable if no future billing period exists.

Wicked Web Design will use best endeavors to ensure the delivery of real-time alerts. Wicked Web Design guarantees to send real-time alerts instantly but cannot guarantee their delivery by 3rd party providers and aggregators.

Email marketing broadcasts will be undertaken at anytime during the date specified for the broadcast and may take up to 24 hours to deliver from commencement of the broadcast. Email marketing broadcasts cannot be sent unless approved by or on behalf of Wicked Web Design and may take up to 6 hours for approval.

Marketing

You grant Wicked Web Design the right to display your brand including company name and logo on its website and other marketing communications.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Wicked Web Design represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Wicked Web Design help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

Mutual Indemnification

You shall indemnify and hold Wicked Web Design, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Wicked Web Design (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Wicked Web Design of all liability and such settlement does not affect Wicked Web Design’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Wicked Web Design shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Wicked Web Design of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Wicked Web Design; provided that you (a) promptly give written notice of the claim to Wicked Web Design; (b) give Wicked Web Design sole control of the defense and settlement of the claim (provided that Wicked Web Design may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Wicked Web Design all available information and assistance; and (d) have not compromised or settled such claim. Wicked Web Design shall have no indemnification obligation, and you shall indemnify Wicked Web Design pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

Disclaimer of Warranties

EXCEPT FOR WHAT IS STATED IN SECTION 14 WICKED WEB DESIGN AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. WICKED WEB DESIGN AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WICKED WEB DESIGN AND ITS LICENSORS.

Internet Delays

EXCEPT FOR WHAT IS STATED IN SECTION 14 WICKED WEB DESIGN’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WICKED WEB DESIGN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

Local Laws and Export Control

This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Australia, Switzerland and the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Australia, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Australian, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

Wicked Web Design and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America or Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or Australian law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States or Australia for such purposes.

Notice

Wicked Web Design may give notice by means of a general notice on the Service, electronic mail to your email address on record in Wicked Web Design’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Wicked Web Design’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Wicked Web Design (such notice shall be deemed given when received by Wicked Web Design) at any time by any of the following: letter sent by confirmed facsimile to Wicked Web Design at the following fax numbers (whichever is appropriate): +61 8 9315 4386 (for All Customers); letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Wicked Web Design at the following addresses (whichever is appropriate): Wicked Web Design, 85 MANNING ROAD, MANNING, WESTERN AUSTRALIA 6152, in either case, addressed to the attention of: Chief Executive Officer.

Modification to Terms

Wicked Web Design reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Wicked Web Design but may be assigned without your consent by Wicked Web Design to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Wicked Web Design directly or indirectly owning or controlling 50% or more of you shall entitle Wicked Web Design to terminate this Agreement for cause immediately upon written notice.

General

This Agreement shall be governed by the laws of Western Australia, Australia, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Western Australia. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Wicked Web Design as a result of this agreement or use of the Service. The failure of Wicked Web Design to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Wicked Web Design in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Wicked Web Design and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, any Order Forms, and any materials available on the Wicked Web Design website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Wicked Web Design from time to time in its sole discretion; “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service; “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Service; “Initial Term” means the first License Term period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term (and first License Term) is the first quarter); “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Administrator(s)” means those Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service; “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); “Online Order Center” means Wicked Web Design’s online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service; “Wicked Web Design” means collectively Hillier Pty Ltd t/a Wicked Web Design, an Australian proprietary limited company, having its principal place of business at 85 Manning Road, Manning Western Australia 6152; “Wicked Web Design ” means all of Wicked Web Design’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Wicked Web Design in providing the Service; “Service(s)” means the specific edition of Wicked Web Design’s online content management and customer relationship management systems, billing, data analysis, or other corporate services identified during the ordering process, developed, operated, and maintained by Wicked Web Design, accessible via http://www.Wicked Web Design.com or another designated web site or IP address, or ancillary services rendered to you by Wicked Web Design, to which you are being granted access under this Agreement, including the Wicked Web Design Technology and the Content; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Wicked Web Design at your request).

 

9.  Domain name registration terms of contracts

  1. We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
  2. Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation, agree that the administration charge paid by you to us shall be non-refundable in any event.
  3. We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name. It must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.

 

10. Exclusion and limitation of liability

TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

 

Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.

In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.

 

Important note:
In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and if you where to do so this would be unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:

a. in relation to goods

i. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
ii. the repair of the goods or payment of the cost of having the goods repaired;

b. in relation to services

i. the supplying of the services again; or
ii. The payment of the cost of having the services supplied again as in each case we may elect.

 

Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall, unless the contrary is proved, be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.

 

11. Modification to Terms

Wicked Web Design reserves the right to modify the terms and conditions of this Agreement or its policies at any time. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
12. Severability
If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.

 

13. Assignment

The benefit of this agreement may be assigned by us, but not our obligations to you – to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.

 

14. Entire agreement

These terms and conditions constitute the entire agreement between Wicked Web Design and you, and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the contract unless it is in writing and signed by authorised representatives of you and Wicked Web Design.

 

15. Governing law

This agreement shall be governed by the laws in force in the state of Western Australia. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.

 

16. Notifications & communications

In addition to general Account, Billing and Service communications, Wicked Web Design will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by following ‘unsubscribe’ instructions contained within the communications.

 

You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.