By purchasing a Web123 Product or Service, you confirm that you (the client) agree to adhere to these terms of service. These terms of service are legally binding and represent an agreement between you (the client) and Big Little Holdings (the provider/”Web123″).
GENERAL TERMS OF SERVICE
- Web123 designs, builds and hosts websites and provides online and telephone support.
- The Client has the right to, title, and interest in a website containing intellectual property owned by the Client together with, but not limited to textual content, video and/or audio. Clients and Resellers acknowledge that any design created by Web123 or its resellers using the Web123 CMS templates remain the property of Web123 and cannot be replicated elsewhere.
- The Client warrants Web123 to host its website unless otherwise advised in writing per the relevant notice periods.
- Web123 websites are built either in its own proprietary CMS platform or on an alternate open source CMS platform.
- This agreement shall take full force and effect as and from the date of the Client’s purchase of the website and upon making payment the Client is deemed to have read and understood these terms.
- Web123 shall supply to the Client all services necessary to effectively host the Client’s website and make available for a fee to the Client the services of Web123 to provide to the Client online support, telephone support for the ongoing administration and maintenance of the Client’s website hosted by Web123 in circumstances where the Client requests such support.
- This Agreement may change from time to time. In the event that this Agreement changes, Web123 shall advise the Client in writing at least 30 days before the changes shall take effect. If the Client asserts that any changes to this Agreement show unfair bias against the interests of the Client in favour of Web123, the Client agrees to dispute the application of the changes in writing prior to the changes taking effect. In the event of a dispute the Client will either be provided with a written exemption from the specific changes within this Agreement that the Client asserts to be unfair, or if this is not possible the Client may at its option terminate this Agreement by giving 30 days’ notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement. In the event Web123 are required to advise the Client of such a change of the Terms of Service or Costings Agreement, the Client may at its option terminate this Agreement by giving 30 days’ notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- The Client agrees that Web123 is assigned the right to use any and all of the Client’s IP at no charge to showcase the work completed by Web123 for the Client, at Web123’s disrection. This may include but not limited to trademarked logos, supplied images and written copy supplied by the client in the production of any Web123 product or service.
- Web123 have a Fair Use policy, and the Client upon executing this Agreement is deemed to have read and understood the Fair Use policy of Web123 and agreed to be bound by it.
- The Fair Use policy of Web123 may change from time to time. In the event this policy changes Web123 shall advise the Client in writing within 7 days of the change. In the event Web123 are required to advise the Client of such a change of the Fair Use policy, the Client may at its option terminate this Agreement by giving 30 days’ notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- Notwithstanding anything contained in the Fair Use policy of Web123 as set out in Clause 6 of this Agreement, the Client warrants to Web123 that it is the lawful owner of, or has permission from the lawful owner to publish all intellectual property published on its website that it has requested Web123 to host. In the event that the Client, in allowing Web123 to host its website breaches any law of, but not limited to any State or Territory of the Commonwealth of Australia and/or the Commonwealth of Australia, Web123 may terminate this Agreement without prejudice to the rights of Web123 to seek one or all of compensatory damages indemnities relating to liability incurred as a result of the Client’s aforementioned breaches.
- Web123 may terminate the Agreement without notice to the Client in the event Web123 becomes aware of any of the following:
• Content on the Client’s website (including content generated by users of the Client’s website) that does not comply with the Fair Use policy of Web123 as set out above
• Notwithstanding the terms of Fair Use policy of Web123 any matters that is either offensive and/or obscene, seditious, blasphemous, defamatory or inappropriate in the opinion of Web123
• Repudiatory conduct as defined under Clauses 6.
• Any outstanding invoices not paid to Web123 within the specified payment terms under Clause 6.
- The Client warrants to Web123 that all email accounts and passwords will contain a strong password protocol which is defined as a password that is reasonably difficult to guess in a short period of time either through human guessing or the use of specialised software. A Strong password should contain: at least 8 characters, contain both upper and lower case alphabetical characters, have at least one numerical character and at least one special character. A strong password should not: spell a word or series of words that can be found in a standard dictionary, spell a word with a number added to the beginning or the end, or be based on any personal information such as user ID, family name, birthday etc.
- Should an email account be corrupted due to failures to adhere to this protocol and Web123’s own mail system is compromised, Web123 reserves the right to immediately terminate the affected email domain and all associated accounts without providing backups, and charge to the client an hourly rate of $165 inc GST for all technical works required to resolve issues arising from this.
- The Client warrants to Web123 that it shall not by its conduct frustrate Web123 from hosting its website or withhold the necessary support to Web123 for the effective hosting of the website. Web123 shall not be liable for any interruption to the provision of the Client or the hosting services where an interruption is beyond the control of Web123 including but not limited to force majeur.
- Web123 warrant to the Client that 99.99% of the time in any given month the Client’s website will work when accessed from a browser with unrestricted access to the internet. In this Service Level Agreement the expression “availability” shall have the meaning of availability to users of the internet unaffected by local or network limitation. Web123 shall not be liable for any losses in circumstances where the Client’s site is offline at any point reflecting a monetary sum beyond the sum required paid for hosting in that given calendar month.
- In the event Web123 terminates this Agreement as a result of any breach by the Client and withdraws its hosting services, whereby the Client’s web page is no longer hosted on the internet:
•Web123 will not be liable for any loss or damage arising from the withdrawal of the hosting services from the Client.
- Should any breach be resolved and the Client desirous of reactivation of services, Web123 will charge a reactivation fee of no less than $499 including GST to cover Web123’s reasonable costs incurred as a result of the breach, to be paid in full before reactivation.
- Should a site be deactivated for a period in excess of 6 month for any reason a new website would need to be purchased at a cost to be advised at such time in accordance with current applicable pricing structures.
- Web123 will advise the Client of any foreseeable interruption to the hosting service.
- The Client agrees to advise Web123 of any change of contact details. Web123 will not be liable for any consequences of tax invoices or other notices or documentation being sent to incorrect addresses as a result of a failure of the Client to provide notice of a change of said details, including deactivation of websites due to non payment of invoices.
- In this Agreement Web123 shall provide services to the Client for fees as advertised within the Web123 website at https://web123.com.au/service-schedule
- Web123 charges all fees upfront, in advance. Payment of website hosting and support fees are charged on the 1st of each calendar month, and payable via automatic credit card payment processing. For Clients wishing to pay via direct deposit an invoice for six or twelve months of ongoings will be issued to the Client no less than seven days before the due date. Any unpaid invoices will result in the suspension of all services as per Clauses 11 – 14 (above).
- Web123 reserves the right to increase ongoing fees related to the hosting and technical support of Client websites. Annual price increases may occur at any time in accordance with service package alterations and any changes in technology and the infrastructure required to maintain the Client’s website and/or email services.
- Web123 reserves the right to classify a project as ‘abandoned’ should no contact be made by the Client for three months or more. All abandoned projects will be archived for a further period of three months only, at which point the project will be purged from our servers and a new website package will be quoted in accordance with the current pricing structure.
- Any abandoned projects for which a deposit has been paid will not be refunded, and any work completed by Web123 remains the property of Web123.
- Any extra hours completed by Web123 beyond the initial deposit received, will be invoiced to the Client upon the project being marked as ‘abandoned’. Should the Client fail to pay this invoice Web123 reserve the right to engage its debt recovery agency to recoup monies owing on its behalf, and the fees for this will be passed onto the Client in addition to the outstanding amounts.
- Should additional changes be requested outside the scope of the project brief or allocated project hours are reached, additional fees will apply. Web123 warrants that an estimate will be provided for approval before any additional work is commenced.
SERVICE PROVISION AND COSTINGS
- Web123 shall provide up to a maximum of 50GB data transit, per calendar month. Any additional data transit required shall be supplied and charged at $10 per GB.
- Web123 shall provide an ongoing support allocation inclusive in its regular ongoing costs with limits as defined under Clauses 6.1. Any support incidents raised beyond the terms of Clause 20-28 will be charged at a rate of $149 per hour including GST. Web123 reserves the right to waive additional charges for support at its discretion. The Client will not be charged for any support incidents determined by Web123 to be attributable to a problem with the underlying software or an error on the part of Web123.
- Web123 reserves the right to decline the provision of technical support if a Client has unpaid hosting, or other outstanding amounts for which payment has not yet been received.
- The Client warrants to Web123 and agrees to pay Web123 in full, in advance, at all times. No work will be commenced until payment has been received.
- Ownership of all services including marketing campaigns and domain names remain the property of Web123 until payment has been made in full by the Client.
- Should payment remain declined or be disputed after Web123 has provided a service, Web123 reserve the right to limit it’s services until such time as the payment has been received in full or the dispute has been resolved. Outstanding amounts may also be issued to debt collection agency for followup should the dispute remain unresolved, and Web123 reserve the right to charge the client for all fees incurred as a result of this.
- Execute all documentation necessary to allow Web123 to directly debit from the Client’s credit card monthly charges for all and any products and/or work undertaken by Web123 for the Client.
- Availability of funds: Ensure that valid credit card details are supplied to Web123 prior to the first of each calendar month, with sufficient funds to make payment to Web123 for any monies due and owing.
- Should payment not be made by or on the due date of invoice, Web123 reserve the right to suspend any and all website services and at its discretion charge a reactivation fee of $499 before reinstating these services. Suspension of email accounts may also occur due to non-payment of hosting fees, in which case a $199 reactivation fee is applicable.
- Should payment of any recurring monthly fees be declined where follow up from our Accounts Team is required for two or more consecutive months, Web123 reserve the right to charge the Client twelve months of website hosting in advance, in addition to a $99 administration fee for alterations made to the account.
- Make payment upon receipt of a tax invoice from Web123 for all charges including but not limited to website hosting, domain names, technical support, SEO, websites and marketing packages, which shall all be charged in advance.
- Make payments to Web123 upon receipt of a tax invoice from Web123 for excess charges for messages or data which shall be charged in arrears.
- Make payments punctually on the first of each calendar month in accordance with the billing periods which shall be based on calendar months.
- In the event this Agreement is terminated by the Client, the Client agrees to pay to Web123 an amount to be costed on the basis of all services provided by Web123 that remain unbilled as at the date of termination. Any fees paid in advance for monthly hosting is non-refundable.
- Provide to Web123 at least one full calendar month’s notification for any cancellation request, whereby the following calendar months’ hosting will also be charged as a final invoice. Notice must be provided by the account holder or a nominated representative (as identified by the Client) and clearly state the service to be cancelled, along with the date the cancellation is required to be actioned. If immediate cancellation is requested, Web123 reserve the right to charge the Client one calendar month’ s hosting (in addition to any current amounts owing) before actioning the cancellation request. If the cancellation cannot be actioned due to non-payment, monthly fees will continue to incur and notice will need to be provided again once the account is up to date.
- In the event the Client is a corporation, the directors of the Client agree to be parties to this Agreement and guarantee the performance of the Client and further agree to assume each and every liability and obligation of the Client pursuant to this Agreement in the event of and as and when the directors of the Client are called upon to do so for whatever reason. The obligations of the directors of the Client include but are not limited to the payment of any and all tax invoices rendered to the Client by Web123.
FAIR USE, REPUDIATORY CONDUCT AND DISPUTES
- Dependant upon the ongoing care plan chosen, Web123 generally applies fixed limits to the amount of support we give to our Clients per Web123’s proposal. The Client understands that any support required over and above the allocated support will be charged in arrears at the end of each month, at an hourly rate of $149.
- The Client agrees to be bound by Web123’s Fair Use policy outlined in this section.
- The Client agrees not to engage in excessive contact, which includes but is not limited to:
• Repeatedly asking for assistance with matters outside Web123’s control, responsibility, or remit, after Web123 has advised the Client that this is the case, including but not limited to: basic computer assistance, assistance with emails on devices other than a desktop, business advice or other technical assistance not related to Web123’s services.
• Repeatedly and unreasonably asking for assistance with matters with which Web123 has previously provided training. The Client agrees to endeavour to understand the training they are provided.
• Excessive phone calls or emails to the extent that it has a detrimental impact on our ability to service our other Clients.
• Demands for assistance with non-urgent matters outside of Web123’s support hours where urgency is determined at the sole discretion of Web123.
- If Web123 determines that the Client is engaging in excessive contact, it will provide written notice to the Client of this determination, and the Client agrees that Web123 at its sole discretion may as a result undertake any or all of the following actions.
- Apply a restriction on contact time permitted with the Client.
- Invoice the Client for all or a portion of time spent on the phone, responding to emails and support tickets, and any other undertakings required to service the Client.
- Suspend and/or terminate the Client’s provision of services, not before a third warning has been given.
- Web123 agrees that notices of excessive contact must be provided within 30 days of said excessive contact and the determination can only be made on the basis of activity within the 90 days preceding the date the notice is issued.
- The Client agrees that any dispute it wishes to make to a notice of excessive contact must be provided in writing to Web123 within 14 days of the issue of the notice.
- The Client agrees not to engage in repudiatory conduct, which includes but is not limited to:
• Abusive behaviour towards staff, agents, partners or directors of Web123, which includes threatening behaviour and/or speech.
• Defamation of staff, agents, or directors of Web123, or of Web123 or related businesses.
- The Client agrees that in instances of repudiatory conduct, Web123 is entitled to immediately terminate this agreement without prejudice to its rights to seek one or all of compensation, damages, or indemnities relating to the conduct.
Last revised 20 November, 2018.
MESSENGER MARKETING AND CHATBOT TERMS OF SERVICE
The Parties agree as follows:
Big Little Holdings Trust, trading as Web123 (hereafter referred to as “Web123”) shall provide to Client the services of Messenger Marketing & Chatbot Development & Management.
The period of this Agreement begins on the date a contract or agreement is accepted and signed by the client and continues until this Agreement is terminated pursuant to Paragraph 6 below.
To get the most out of the services provided, the Client must respond to Web123 and it’s representatives in a timely manner and send any information requested so as to best achieve the intended results.
If an appointment is missed without notice, it is at Web123’s discretion to reschedule at a date and time convenient to them. If you need to cancel or reschedule an appointment, please notify Web123 at least 24 hours in advance.
The success of our working together falls on Client’s full participation and dedication to the services provided.
FEES, PAYMENT AND ONGOING TERMS
For all Services performed under this Agreement or other request for Services that references this Agreement, Client shall:
(i) pay Web123 at the current standard rates; and
(ii) provide credit or debit card details to Web123 to enable automated monthly recurring debits to be processed.
All payments pursuant to this Agreement are non-refundable.
In the event of a declined payment the Client understands that Web123 will retry payment daily. Outstanding invoices that remain unpaid for a period of 7 days or more will result in the services being suspended, until all amounts owing is paid in full. Web123 reserve the right to invoice Client an additional ten percent (10%) administration fee on top of any outstanding invoice, for which payment must be made before services are reactivated.
If any payment remains unpaid for a period of 21 days, this Agreement will be cancelled and Client will be required to pay the prorated amount due for services performed up to that date, as well as the remaining contracted term up to the end of the current 12 month period.
At the end of the 12 month contracted term the Client is required to provide a full campaign month’s notice of intent to cancel, otherwise the campaign will automatically renew for a further 12 month period. No refunds will be applied for campaigns once they have been renewed.
Web123 and Client mutually agree to hold any and all Confidential Information exchanged between the parties as part of this Agreement in the strictest of confidence and to not disclose such information to any other person or entity.
Information shared in Facebook groups, in email, on calls, in video conferences, or any other means shall be maintained as confidential.
The Recipient of Confidential Information shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. The terms of this section shall survive the termination of the Agreement.
RIGHTS TO WORK PRODUCT
Any expression or result of Web123’s Services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software, and other technical information (collectively “WORK PRODUCT”) created by Web123 in the course of performing the Services hereunder are the property of Web123 and are licensed to Client, without further license fees, provided, however, to the extent such Work Product provided to Client by Web123 contains Client’s Confidential Information,
Client shall retain title to such Confidential Information. Client shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
Web123 shall own all rights to all (“Inventions”), including inventions, designs, ideas, images, ad copy and creative, and information conceived in whole or in part by Web123 in connection with Services. Upon termination of Services, ownership of Inventions shall be retained by Web123.
TERMINATION OF PROFESSIONAL SERVICES
Unless otherwise agreed to, either party may terminate this Agreement at any time by giving the other party written notice of termination. If this Agreement is terminated by the Client, Client shall pay Web123 the pro-rated amount due for services performed up to that date, as well as the remaining contractual term up to the end of the current 12 month period.
Due to the extensive time involvement and nature of the professional services in this Agreement, refunds will not be given.
INDEPENDENT CONTRACTOR STATUS
Web123 performs this Agreement as an independent contractor, not as an employee of Client. Nothing in this Agreement is intended to construe the existence of a partnership or joint venture relationship between Client and Web123.
NO GUARANTEE OF RESULTS
The Services provided under this Agreement are for educational and informational purposes only. Client accepts, agrees and understands that you are fully responsible for your progress and results from your participation and that we offer no representations, warranties or guarantees verbally or in writing regarding your results of any kind.
The Client acknowledges that Web123 makes no warranty that a Chatbot campaign will generate any increase in sales, business activity, profits or any other form of improvement for the Client’s business or any other purpose. No liability whatsoever (except as provided by law) will be accepted by Web123 for any damages or loss arising from or as a consequence of the provision of the Services.
You are responsible for the results in your business which are dependent on personal factors including, but not necessarily limited to, your skill, knowledge, ability, dedication, network and financial situation, to name just a few. You also understand that any testimonials or endorsements by our clients, customers or audience represented on our websites, content, landing pages, sales pages or offerings have not been scientifically evaluated by us and the results experienced by individuals may vary significantly.
Any statements outlined on our websites, programs, content and offerings are simply our opinion and thus are not guarantees or promises of actual performance. We offer no professional legal, medical, psychological or financial advice.
REPRESENTATIONS AND WARRANTIES
Each party warrants that:
(i) All notices in this Agreement shall be in writing, and this Agreement has been duly and validly executed and delivered and constitutes a legal, valid, and binding obligation, enforceable against either party in accordance with its terms;
(ii) They have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform their obligations under this Agreement, without the approval or consent of any other party; and
(iii) They have sufficient right, title, and interest in and to the rights granted in this Agreement.
Big Little Holdings Trust, trading as Web123 warrants that the Services will be performed in a professional manner in accordance with recognised industry standards. To the extent Services provided are advisory, no specific result is assured or guaranteed.
Web123 expressly disclaims all other representations or warranties, whether express, implied, or statutory (by any Territory or Jurisdiction) to the extent permitted by law. Further Web123 expressly excludes any warranty of non-infringement, title, fitness for a particular purpose, or merchantability to the extent permitted by law.
LIMITATION OF LIABILITY
Maximum liability for any action arising under this agreement, regardless of the form of action and whether in tort or contract, shall be limited to the amount of services fees paid by Client for the Services from which the claim arose.
In no event shall Web123 be liable for indirect, special, incidental, or consequential damages of any kind, including without limitation, lost data or lost profits, however arising, even if Client has been advised of the possibility of such damages.
The parties agree to the allocation of risk set forth herein.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modiﬁcations or waivers to this Agreement will be eﬀective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and eﬀect and enforceable.
Any legal action or proceeding relating to this Agreement shall be brought non-exclusively to relevant state and federal courts in Australia and each party consents to the jurisdiction thereof. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.
You agree to indemnify and hold harmless Web123 and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding.
You will immediately notify Web123 of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
Web123 reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.
Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non- assigning party).
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Victoria, Australia without regard to the conflicts of laws and principles thereof. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement, shall be only in a federal or state court having subject matter jurisdiction located in Melbourne, Victoria, Australia.
Any cause of action brought by Client against Web123 must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
For every dispute regarding this Agreement:
(i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees’ (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled;
(ii) each party consents to the jurisdiction of the courts of the State of Victoria and agrees that those courts have personal jurisdiction over each party;
(iii) venue will be in Victoria; and
(iv) the parties will submit the dispute to mandatory mediation held in Victoria or through an online mediation service agreed upon by all parties.
If the parties cannot agree on a mediator, then any party may apply at any time to the presiding judge of the Superior Court for the appointment of a mediator, and the judge’s selection is binding on all parties. The parties will share equally (50/50) in all costs of the mediation, including the mediator’s fees, but each party is solely responsible for its own attorneys’ and experts’ fees. Every mediation will be completed within 4 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 4-month period, then the parties may continue seeking to resolve the dispute via any process, including litigation by trial.
In no event shall Web123 be liable for any consequential, punitive or multiple damages of any kind.
Except for Client’s obligation to pay Web123, neither party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.
(a) You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
(b) This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
(c) The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
(d) If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
(e) The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights
The Client acknowledges the following with respect to services:
(i) Web123 has no control over the policies of social media platforms with respect to the type of sites and/or content they they accept now or in future. The Client’s ads may be disapproved/suspended at any time at the sole discretion of the social networks and the cost of new ad creation will be charged to the client.
(ii)The Client must give the Company ‘Admin’ access to its Facebook Page to enable Web123 to perform Services.
(iii) Audience target market selected for the Chatbot Campaign must be mutually agreed by the Client and Web123.
(iv) All the Ad accounts created by Web123 is the intellectual property of, and owned by, Web123.
If you have any questions or concerns, please contact Web123 by email at email@example.com.
Last revised 22 May 2019.