This following Terms and Conditions of Sale (“Terms and Conditions”) apply to all sale agreements entered into, by and between the client named on the sale agreement (“the Client”) and Webdew ABN 94 931 017 174 and each related entity (as defined in the Corporations Act 2001) from time to time and any of Webdew’s assigns. This agreement extends to a company which is not now, but is in the future a related entity of Webdew. These Terms and Conditions also apply to all products and services supplied to the Client by Webdew on any account whatsoever.
1.1 Subject to clause 1.2 , all of the intellectual property contained in any website or application/product/service developed for the Client by Webdew or provided by Webdew to the Client (“the products and services”), remains the property of Webdew, until all payments for products and services supplied in accordance with these Terms and Conditions are paid for in full.
1.2 Websites are developed by Webdew in 4 discrete stages of (a) Landing Page design; (b) Common Layout pages design; (c) content creation/ and formatting and (d) website functional completion (“Website Stages”).Title in and possession of each completed Website Stage will pass to the Client upon Webdew receiving the Client’s approval and milestone payment for each Website Stage, and additionally for (d) when the website is ready to go live on the internet.
2) POSSESSION OF PRODUCTS
For all products other than websites (which are covered by clause 1.2 above), once the application is deemed complete by Webdew in accordance with these Terms and Conditions, and all payments have been received for the products and services the Client is deemed to have taken possession of the products and services.
During the course of Webdew and the Client’s relationship, either party may have or may be provided access to the other’s proprietary items or confidential information (“Confidential Information”). Each party agrees to maintain the confidentiality of the other’s Confidential Information in accordance with this provision and any separate nondisclosure agreement that expressly references the disclosure(s) between Webdew and the Client. At a minimum, each party agrees that it shall not make the other’s Confidential Information available to any third party without the written consent of the other and that title and ownership of the Confidential Information provided by one party to the other shall remain the exclusive property of that party who has the right to possess the Confidential Information.
4) LIMITATION OF LIABILITY
4.1 The Client warrants, acknowledges and agrees that:
a) Webdew will not be responsible for any pre-recorded, registered, patented or copyrighted sounds, music, text, images etc. that the Client wishes to utilise on their website. The use of those items is at the sole risk of the Client. The Client should seek independent legal advice if they are unsure.
b) Webdew is not liable, professionally or legally for any content of the Client’s website if that content has been provided, requested or approved by the Client.
c) Whilst all care is taken with system security, Webdew will not accept responsibility for loss of data or security problems if that loss or problem arises out of circumstances which are outside of Webdew’s control.
d) Webdew provides no guarantee regarding the availability of the hosting service provided by Webdew to the Client and is not liable for any losses by the Client resulting from any failure or non-availability of the hosting service which is outside of Webdew’s control.
e) Webdew provides no guarantee of search engine registration, website functionality or statistics where the service is hosted externally.
f) Whilst the website is under the development and maintenance of Webdew, administrative and file access to the website by the Client will be limited.
g) Webdew is not liable or responsible in anyway whatsoever for:
(i) any virus, spam, contamination, damage or loss as a direct or indirect consequence from the use of the website or any products and services;
(ii) any financial loss occurring from the use of the website, or any products and services; or
(iii) any delay in providing the website or any products and services to the Client or responding to a query from the Client,
unless that loss or damage is a result of Webdew’s gross negligence or wilful misconduct.
4.2 Notwithstanding anything contained herein the Client acknowledges that no representation, warranty or condition, express or implied, is given by Webdew and its employees, agents or servants about the website or the products and services or that the website or the products and services provided comply with the rules, regulations, laws and legislation of the place where the Client is located and Webdew and its employees, agents or servants will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the website, the failure of the website and the products and services and such website and products and services not complying with such rules, regulations, laws and legislation or by reason of or arising out of any inaccuracy, error or omission in the website or the products and services and any other information provided by or to Webdew.
4.3 Where the Australian Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these Terms and Conditions which cannot be excluded, then the liability of Webdew for any breach of such term will be limited to one of the following (as determined by Webdew):
a) supply of the products and services again; or
b) payment of the cost of having the product and services supplied again.
The Client hereby indemnifies and holds harmless and shall continue to indemnify and hold harmless Webdew against all liabilities, actions, demands, claims, suits, causes of action, proceedings, costs and expenses (including legal costs on a full indemnity basis) suffered or incurred by Webdew by reason of, arising out of or referable to any breach or non performance by the Client of any provision of these Terms and Conditions and on the part of the Client to be observed and/or performed.
The Client hereby releases and holds harmless Webdew and its employees, agents or servants from and against any and all liabilities, actions, claims, suits, causes of action and demands whatsoever that the Client may now or in the future have against Webdew and its employees, agents or servants arising out of or in connection with the Client’s website or any products and services or any failure or nonavailability of the hosting service, except where that liability, action, claim, suit, cause of action and demand arises from Webdew’s gross negligence or wilful misconduct and this release may be pleaded as an absolute bar to any such claim against Webdew and its employees, agents or servants.
6) TERMINATION AND CANCELLATION
6.1 Webdew may, in its absolute and sole discretion, terminate the Client’s account in the event of any activities of an illegal or fraudulent nature, or any activity considered not in keeping with the ‘goodwill’ of the products and services provided by Webdew. These include but are not limited to:
a) spamming (sending unsolicited promotional electronic mail);
b) downloading, storing, posting or dealing with material which is or could be in breach of any law, rule or regulation, deemed ‘NC’ by the Australian Broadcasting Authority, or considered obscene by Webdew. This includes illegal software, software cracks and pornography;
c) making fraudulent or deceptive statements,;
d) impersonating any person or entity;
e) soliciting money, passwords or personal information from any person;
f) harming, abusing, harassing, stalking, threatening, intimidating, discriminating against, likely defaming or otherwise offending others, or violating their privacy or property rights;
g) posting or using any material, documents or images that are not the Client’s original work, or which in any way violate or infringe (or could reasonably be expected to violate or infringe) the intellectual property or other rights of another person.
a) the Client fails to pay any amount due to Webdew on any account whatsoever, without any deduction or set off in law or in equity, within 7 days of receiving written notice from Webdew of the outstanding account;
b) the Client fails to observe, keep or perform any other provision of these Terms and Conditions required to be observed and fails to rectify that failure within 7 days of receiving written notice from Webdew of that failure;
c) a petition is filed by or against the Client under the Bankruptcy Act; or any amendment thereto (including a petition for re-organisation or an arrangement);
d) a receiver is appointed for the Client and its property;
e) the Client commits an act of bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or offers a composition or extension of any of its indebtedness;
f) the Client, without Webdew’s prior consent, attempts to alter, modify, translate, decompile, disassemble, copy, sell, trade, transfer, encumber, pledge, or in any way dispose of the product or application; or
g) anything analogous, or having substantially similar effect, occurs,
then Webdew or its agents, without prejudice to any other rights or remedies open to it, may exercise any one or more of the following remedies:
h) declare all monies owed by the Client to Webdew immediately due and payable with 7 days notice to the Client;
i) sue and recover from the Client an amount equal to the unpaid balance of any amounts due, or to become due, during the term of these Terms and Conditions as well as legal fees and other expenses incurred on a full indemnity basis by Webdew in an attempt to enforce the provisions of these Terms and Conditions;
j) sue for and recover damages for the Client’s default; and
k) demand and take possession of the website or application or any products and services provided by Webdew to the Client with 7 days notice to the Client wherever the same may be located, with or without court order. The Client hereby waives any and all damages occasioned by such retaking of possession of such website or application or products and services. Webdew shall have upon default such other and further remedies and rights as may be available under these terms and conditions and at law by reason of the Client’s default.
8) WEBSITE COMPLETION
8.1 Upon presentation and inclusion of all images and text and after all functionality has been installed (in terms of the signed contract) the website is deemed complete and the Client will have 7 days to advise Webdew in writing of any changes. Failure by the Client to notify Webdew in writing within the 7 days will result in the website being deemed finally complete and all outstanding monies shall become immediately due and payable.
8.2 The Client shall provide all approvals and information requested by Webdew within 3 business days and shall not unreasonably withhold information nor create unnecessary delays.
8.3 Webdew will not be responsible for any delays if the Client does not provide the relevant approvals at each phase of the process or information in accordance with clause 8.2 or if there are any delays created by the Client.
8.4 As there are a lot of variables and contingencies in building a website including requiring timely cooperation from the Client, Webdew provides no guarantee as to the time it will take to build the Client’s website unless expressly stated to the contrary on the sales agreement.
8.5 If a Client has purchased a Webdew Brand product the website build will only commence once branding is completed.
8.6 Webdew provides no guarantee as to how the Client’s website will be displayed in search engine results or as to the success of any search engine optimisation provided.
8.7 Webdew reserves the right, upon providing notice to the Client, to levy additional charges to the Client for concept redesigns beyond the initial design concept agreed between Webdew and the Client.
8.8 Webdew reserves the right to include the Client on mailing lists used for email marketing of products and services, unless the Client provides Webdew with a written request to be removed from any such mailing list.
8.9 Webdew reserves the right to access statistical data derived from the Client’s website and use it for its own purposes, including, but not limited to effectiveness analysis and promotion unless the Client provides Webdew a written request that Webdew not access the Client’s statistical data.
8.10 Webdew reserves the right at all times to promote (or not promote at its discretion) a Client’s website for the purposes of Webdew’s own marketing through appropriate means; including, but not limited to, the placement of the Webdew logo and hyperlink on all pages and listing of the Client’s website in a Webdew directory. The Client acknowledges and agrees that the price charged by Webdew to the Client takes into account the fact Webdew will be entitled to use the Client’s website for the purpose of marketing.
9) WEB SITE COMPATIBILITY
Webdew build websites according to the strict discipline of Web Standards as outlined and recommended by the W3C (World Wide Web Consortium). This means that the Client’s website will be available to the widest audience possible by working across several platforms (PC, Linux and Macintosh) on the most common web standards compliant web browsers, which includes Firefox 3+, Safari 4+, Google Chrome 2+, and Internet Explorer versions 9+.
Webdew’s copywriter (the “Copywriter”) or Project Manager will contact the Client requesting information to complete the Client’s website’s written content. All deadlines set by the Copywriter or Project Manager (or if no deadline is set, in accordance with clause 8.2 above) must be met to ensure the website is written professionally within a designated time frame. Clients who do not meet Copywriter deadlines may be required to add written content themselves or may become liable for time based costs resulting in unplanned project extension where these delays are a result of the Client’s inability to meet the deadlines as set by the Copywriter or the deadlines contained elsewhere in these Terms and Conditions.
11) PRODUCT UPLOADS
Upon request Webdew will be responsible for uploading no more than 20 of the Client’s products to the website. Additional product uploads (in excess of 20 products) as well as bulk product uploads may be arranged at an additional cost and these costs are quoted on request.
12) TECHNICAL SUPPORT
12.1 Each Client will receive 1 hour per month of free support (this is noncumulative) as part of the Web Solution Monthly Subscription AND any support beyond this 1-hour will be charged at $75 (ex GST) per 30 minutes.
12.2 Webdew bills its services at a rate of $150.00 (ex GST) per hour. This applies to all out of scope works provided by Webdew to the Client.
13) INTERNET VIDEO COMMERCIALS (IVC)
Webdew may require access to premises, vehicles, products and information, to complete the IVC. The Client will make all these available to Webdew on request. If the Client unreasonably withholds access to any of the above, and the IVC is not complete within 3 months from signature of the relevant sales agreement due to this lack of access, Webdew reserves the right, upon providing notice to the Client, to cancel the provision of an IVC by Webdew to the Client without any compensation to the Client.
14) FAILURE TO ATTEND DESIGN BRIEFING
Webdew reserves the right to begin building the Client’s website if the Client fails to attend a design briefing within one calendar month of entering into the sale agreement with Webdew or accepting Webdew’s services.
15) Webdew BRAND
Terms and conditions relating to all Webdew Brand products can be found at www.Webdewdigital.com.au/terms
16) SEARCH ENGINE OPTIMISATION (SEO) /ADWORDS/FACEBOOK ADVERTISING
16.1 SEO results (increased traffic and higher rankings) can take many months to materialise as results are subject to many variables. For this reason Webdew strongly recommends that the Client commence a paid advertising campaign simultaneously with the launch of the Client’s website, which may provide quicker search results.
16.2 Webdew and its search engine optimisation services provide no guarantee (other than any guarantee it is obliged to provide under any law) of any nature to the Client, with respect to search engine rankings, positioning, traffic and the resultant demand for, or sales of, the Client’s products or services.
16.3 Adwords, billing: management fees and Google Adspend are separate charges billed to the Client. Management fees are the fee the Client pays to Webdew to manage their Adwords (PPC) campaign. Adspend is the amount paid directly to Google for advertising on their platform.
16.4 Google Monthly Ad Spend: This monthly spend may vary by 10% and any variation will be equalised on a quarterly basis.
16.5 Consolidated Google Billing: A deposit equivalent to 1 month Adspend as stated in the sales agreement or quote provided by Webdew must be paid by the Client prior to the commencement of the campaign. The deposit will be refunded to the Client upon request upon Webdew ceasing to provide services to the Client.
16.6 Advertising spend will be billed to the Client by Webdew at the end of each
16.7 Webdew will provide the Client with a detailed Ad Spend Report which will be accompanied by a tax invoice. The tax invoice must be paid by the time stated on that invoice.
16.8 Management Fees will be billed by Webdew monthly in advance and paid by the Client via direct debit.
16.9 It is the Client’s responsibility to provide to Webdew in writing any variation requested to the Client’s monthly advertising spend.
16.10 All intellectual property associated with Webdew’s search engine optimisation service will be removed upon cancellation of the search engine service by the Client.
16.11 The Client is recommended to follow any advice of Webdew in relation to the provision of the goods and services, failing which the Client accepts and acknowledges that this would detract from the success of the website and any products or services provided by Webdew. Notwithstanding this and despite the Client having part or all of the products and services listed in this clause and following the advice of Webdew, the Client accepts that there is no guarantee by Webdew of the success of the Client’s website or any other product or service supplied by Webdew, as there are a lot of variables and contingencies in play including but not limited to the Client’s industry, the actual brand, the names and words chosen and any Client specific factors that are outside of Webdew’s control.16.12 If the client does not provide access or logins for their existing social media networks by month 2 of the campaign, Webdew will create a new page for the client. This will be used for the remainder of the client’s campaign.
17) DOMAIN NAME RENEWAL
17.1 If the Client has authorised Webdew in writing to renew their domain/s this will be done automatically by Webdew on expiry of that domain name. Webdew will utilise the direct debit payment details provided by the Client to process this renewal and provide a tax invoice to the Client.
17.2 Domain names must be renewed every 2 years. If Webdew fails to renew the domain name, Webdew will only be liable to the Client for a maximum amount equal to the cost for the Client in renewing or re-registering the domain name. 17.3 Webdew shall not be responsible or liable to the Client if the domain name is otherwise no longer available to the Client.
Webdew reserves the right to cede or assign any sales agreement or contract or these Terms and Conditions to a third party at its sole discretion and will provide the Client with notice of any such assignment.
19) PAYMENT TERMS
19.1 Tax Invoice: Any agreement or contract between Webdew and the Client which contains the price payable for all products and services constitutes a tax invoice upon the Client signing or accepting that agreement or contract. No separate tax invoices will be issued for any service provided over 12 or more months. Webdew will issue a separate tax invoice for any additional products or services that are provided to the Client.
19.2 Consolidated Billing: Webdew will consolidate all payments into one monthly debit.
19.3 Deposits: Upon the Client signing or accepting any sales agreement or contract no refund of any deposit paid by the Client to Webdew will be given if the sales agreement or contract is later terminated. If the Client fails to remit a deposit or any scheduled payment due to Webdew, all outstanding monies under the contract or sales agreement will become due if the Client fails to pay Webdew all outstanding monies within 14 days after the issue by Webdew of a written demand for payment to the Client.
19.4 Website: While Webdew may raise a single tax invoice for the entire cost of the design and construction of a website at the start of the engagement, payment for the website is due by the Client in 4 equal milestone payments as each Website Stage is completed by Webdew.
19.5 Web Solution Monthly Subscription: Prior to the Client’s website going live Webdew will research and compile the following reports: a Website Audit Report – a Link Marketing Report – a Competitor Analysis Report and a Keyword Analysis Report. Once the Client’s website goes live Webdew will provide secure high speed website hosting; Google Analytics reporting; CMS upgrades, technical support and a dedicated account manager.
19.6 Web Solution Monthly Subscription and Monthly Management Fees/Digital Packages: The monthly charges for these services will commence on signing of contract, unless specifically stated otherwise, and automatically renew for successive periods equal to the initial term. Webdew shall provide the Client with written notice of the date on which the contract will automatically renew at least 90 days before the renewal date and inform the Client they are not bound to renew the contract. The Client may cancel any subsequent term by giving 60 days written notice prior to the commencement of that subsequent term. The renewal will cover the same services as contained in the contract.
19.7 The rate payable will increase annually by 5% or CPI which ever is the greater. The payment details provided by the Client will be used to process payments for any subsequent terms. In the case of a contract renewal the first instalment will commence 30 days after the Client’s final payment on the existing contract.
19.8 Late Payment Fees: Webdew shall be entitled to charge interest at the rate of 3% per month calculated daily on all overdue accounts from the due date of the payment until the date of actual payment.
19.9 Webdew reserves the right to suspend the hosting service due to non-payment of any amount owing by the Client to Webdew on any account whatsoever if the Client fails to pay that outstanding amount to Webdew within 7 days of written notice of the outstanding account being given by Webdew to the Client.
19.10 Webdew reserves the right to charge a processing fee for any payments by the Client that are dishonoured.
19.11 Refund and Cancellation Policy: All payments are non-refundable as ample opportunity and choice is provided to the Client prior to acceptance of the contract or sales agreement. It is the responsibility of the Client to ensure Webdew’s products and services are suitable for the Client’s purposes by assessing this via consultation with Webdew’s consultants. Webdew’s only obligation is the delivery of the products and services the Client has purchased. If the Client cancels its contract or sales agreement, cancellation fees will be payable equal to the total contract value less any payments already made. Webdew may, in its absolute discretion, agree to waive the cancellation fee however even if the cancellation fee is waived, the Client will still be obligated to pay Webdew for all services provided up to and including the date of termination.
19.12 Notwithstanding clause 19.11 above, if the Client cancels its contract or sales agreement due to Webdew’s un-rectified failure to perform or non-observance of its obligations under the contract or sales agreement Webdew will not be entitled to any cancellation fee from the Client.
20.1 Webdew may vary these Terms and Conditions at any time and will give notice to the Client of that variation and publish the varied Terms and Conditions on Webdew’s website.
20.2 If any part of these Terms and Conditions are held invalid, illegal or unenforceable, that part shall be severed and the remainder will continue to be valid and enforceable. None of these Terms and Conditions will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these Terms and Conditions.
20.3 These Term and Conditions are governed by, construed and enforced in accordance with the laws of Western Australia and the user irrevocably submits to the jurisdiction of the courts of Perth, Western Australia and their respective courts of appeal in that regard.
20.4 The Client may not assign these Terms and Conditions or any of its rights and obligations in whole or in part in these Terms and Conditions, whether by actual assignment or by operation of law without Webdew’s prior written consent.
20.5 A provision of these Terms and Conditions may not be waived except in writing and signed by an authorised officer of Webdew. No waiver or breach of any provision of these Terms and Conditions shall constitute a waiver or breach of any other provision.
20.6 If these Terms and Conditions are inconsistent with any other previous document or agreement between the parties,