Data Published: 24 June 2015
GENERAL TERMS AND CONDITIONS
“Overall Agreement” means this document titled “Online Business Builders General Terms and Conditions” (which is published on our website www.onlinebusinessbuilders.com.au and which may be amended from time to time) and our estimate outlining the Services and our Fees.
“Customer” means the entity contracting with Online Business Builders on this Agreement and/or the Specific Agreements, and includes the Customer and its employees; agents and all parties acting with its authority obtain goods and services.
“Specific Agreements” are all signed agreements between the parties including Modification Notes. “Modifications” are changes (which must be supported by consideration) contained within a Modification Note. “Modification Note” is any document including an email sourced from Online Business Builders which declares itself as one. No amendments or oral agreements are to be binding on the parties unless recorded in writing and signed by both parties, aside from Modification Notes.
“Fees” are all consideration payable by the Customer to Online Business Builders under this and Specific Agreements. Unless the Specific Agreements state otherwise One third of the Fees (“Deposit”) are due upon signing the earlier of the Specific Agreements or this agreement (“Sign Date”). The balance is payable in 2 equal monthly installments following signing or as outlined in the Specific Agreement. The Customer may not use any fault or alleged fault in the Web Site to delay any payments of Fees. Where a Customer pays by credit card or PayPal and that provider charges Online Business Builders a fee, Online Business Builders shall be entitled to pass on that fee as a Fee payable under this Agreement.
We offer to undertake the Services on the terms and conditions contained in our Overall Agreement.
The Services we are to perform are set out in the letter we have sent or will send to you, which together with our General Terms and Conditions form part of our Agreement. We will not be obliged to undertake tasks unless they are set out in that letter or in subsequent written communications between us.
The scope of the Services may expand beyond this at your request, but the estimate of Fees given assumes that it will not. We reserve the right to re-negotiate the Fees should any particular aspect of the Services change and we will endeavour to promptly agree a mutually acceptable adjustment.
Acceptance Of This Offer
The offer to perform the Services as set out in the letter we have or will send to you remains open for acceptance as specified in the letter unless withdrawn by us earlier. That offer may be accepted by paying the Deposit. If you are not entering into these Terms of Engagement as an individual, by paying the Deposit, you confirm that you are authorised to accept these Terms of Engagement on behalf of the relevant entity on whose behalf the Services are being performed.
If this offer is accepted, the agreement between us may be terminated by either you or us providing 30 days written notice to the other. On termination, all Costs we have incurred on your behalf in undertaking the Services will become immediately due and payable and an account will be immediately rendered for those Costs.
Governing Law and Jurisdiction
The Overall Agreement and the transactions contemplated by them are governed by the law enforced by New South Wales. We and you each irrevocably submit to the jurisdiction of the Courts of New South Wales and all Courts called to hear appeals from the Courts of New South Wales in respect of the Terms of Engagement or its subject matter.
Disputes and Arbitration
All questions, disputes or differences which arise between us and you with respect to the Terms of Engagement or its subject matter are to be referred to a single arbitrator in accordance with the subject to the provisions of the Commercial Arbitration Act 1984 (NSW) or any re-enactment or statutory modification of that law for the time being in force.
Goods and Services Tax
All rates costs and Disbursements in our Terms of Engagement are GST exclusive unless otherwise stated. Where the service provided is subject to GST, GST at the current applicable rate will be added and charged to you.
Independent Legal Advice
You acknowledge that you have had adequate opportunity to obtain independent legal advice as to the meaning and effect of our Terms of Engagement before it was entered into.
Customer agrees to have opted in to receive reasonable emails or other correspondence from Online Business Builders. Customer may opt out by notifying Online Business Builders in writing or using any provided unsubscribe procedure.
Online Business Builders will provide invoices for the Fees, which the Customer may elect to receive either by e-mail or hard copy. Invoices are due on date specified on the invoice. Accounts that remain unpaid 30 days after the due date of the invoice will be in default and attract interest (at Online Business Builders’s discretion) up to 12%p.a. and a $15 per month default fee.
Means any web sites, or web properties and associated code developed by Online Business Builders for the Customer as detailed in the Specific Agreements (and including any sites maps and overall designs). Unless the Specific Agreements state otherwise One third of the Fees are due upon signing the earlier of the Specific Agreements or this agreement (“Sign Date”). The balance is payable in 2 equal monthly installments following signing or as set out in any Specific Agreement. The Customer may not use any fault or alleged fault in the Web Site to delay any payments of Fees. Where a Customer pays by credit card or PayPal and that provider charges Online Business Builders a fee, Online Business Builders shall be entitled to pass on that fee as a Fee payable under this Agreement.
Where we provide hosting services, these are governed by their own T&C’s. You can read the Hosting Account Terms and Conditions here.
If the Customer in default maintains any information or files on Online Business Builders Web properties, Online Business Builders will, at its discretion, remove all such material from its Web properties. Removal of such material does not relieve the Customer of the obligation to pay any outstanding charges on the Customer’s account. Cheques returned for insufficient funds will be assessed a return charge of $15 and the Customer’s account will immediately be considered to be in default until full payment is received and Online Business Builders may suspend its obligations under the Overall Agreements during this period. Customers with accounts in default agree to pay Online Business Builders reasonable expenses, including any legal fees or collection fees from third-party agencies, incurred by Online Business Builders in enforcing the Overall Agreements.
This agreement cancels all previous general terms between the parties, but previous specific obligations on previous projects remain binding upon Online Business Builders. This agreement governs all previous and future obligations between by the parties, but this agreement may be replaced by a subsequent signed document expressed as being general terms and conditions.
Headings and genders used in this agreement are for illustrative purposes only and shall not affect the interpretation whatsoever of this agreement.
The Overall Agreements are transferable with Online Business Builders’s written permission to a business successor of the Customer who is not a competitor of Online Business Builders. In the event of any inconsistency between these Conditions and the Specific Agreements, these Conditions will prevail, unless specifically stated otherwise.
The Customer will appoint no more than one individual at any one time to liaise with Online Business Builders regarding the delivery of Services or content under the Specific Agreements. “Deliverables” means any software developed for or licensed to the Customer under the Specific Agreements (and includes the Web Site). Decisions made by that person on the Deliverables and effected by Online Business Builders may not be rescinded by a future liaison person. Where, in relation to any Specific Agreement, the person hours spent developing the Web Site exceeds the total Fees (excluding the Continuing Fees) divided by fifty, Online Business Builders may, after first notifying the Customer, then recover from the Customer person hours spent above this at $139 per hour. Where the Customer is a corporate entity then any person signing any of the Overall Agreements on the Customers behalf shall be jointly and severally liable for the performance of the Customers obligations under all of the Overall Agreements. Where this agreement is amended by the client, it must be signed by Online Business Builders for such amendment to be enforceable.
Specifically the Web Sites do not include any feature which isn’t specifically stated in the Specific Agreements or Modifications, and without limitation do not include training or manuals, CRM or other applications. Unless otherwise stated, only one login is to be provided for CMS. Email accounts will be restricted to five.
Once functionality in a broad area has been established on a test site the client shall not at a later stage request different functionality for that area. Online Business Builders may as a courtesy provide services or code outside of Specific Agreements or Modifications but Online Business Builders will strictly not be liable to maintain such services or code. It will not be a breach of the Overall Agreements that any key staff of Online Business Builders are unavailable provided there are no other breaches by Online Business Builders.
Online Business Builders may agree to extend its obligations under the Overall Agreements only by either an agreement in writing between the parties or a Modification. Notices to Online Business Builders must be sent via mail or email. Notices to the Customer are to be sent to any of the main email contacts of the Customer or the registered address. Online Business Builders may transfer the Overall Agreements to another entity, or subcontract part of its obligations. Should any limitation or any other part of this agreement be held to be unlawful by any relevant Governing Law, then (a) regarding limitation such shorter or small limitation shall be substituted and (b) in the case of any other wording such wording shall be read down and the remainder of this agreement shall, as far as possible, still be of effect. If Online Business Builders fails to enforce a right here it does not count as a waiver of the right- rights can only be waived by a formal written agreement.
Online Business Builders indemnifies the Customer against proved direct loss and damage caused by the Deliverables to a maximum of the Fees. This amount shall be the total and sole remedy for any liability under the Overall Agreements and, in relation to any sums paid, will cover all incidents of liability occurring to the date of such payment. A separate guarantee regarding hosting is detailed later in this agreement. Online Business Builders does not accept liability for the non renewals of domains; these are the responsibility of the Customer. In the event of any of the exclusions in this clause being held invalid by any aspect of the Governing Law, then Online Business Builders’s liability shall be limited to either at Online Business Builders’s discretion, the replacement of the deliverables or refund of fees.
Online Business Builders disclaims all liabilty in pay per click campaigns.
Are the requirements expected of the Customer being all the information reasonably required of the Customer for Online Business Builders to develop the Web Site, and include any other obligations agreed in the Overall Agreements. Where Online Business Builders delivers additional Services and Deliverables not specified in the Overall Agreements or any Modification, the Timetable shall be accordingly extended, and Online Business Builders shall have no liability for the performance or delivery of such additional Services and Deliverables.
Means all fees noted in this Agreement or any Specific Agreement which are of a recurring periodic nature. Unless stated otherwise Continuing Fees are for an initial 6 month term (the term stated or the default 6 month term we define as ‘Initial Term’) and then go ‘month to month’ from there. They are payable quarterly in advance and are invoiced, due & payable 3 months from the signing date of the Specific Agreements regardless of the progress of the Deliverables and Services
The Overall Agreements may set down a timeline (“Timeline”) and stages (“Stages”) for approval by the Customer. Any timelines or deadlines in the Proposal (“Timelines”) are only binding on Online Business Builders if they have been (a) specifically noted by the Customer in a notice to Online Business Builders that Timeline has been triggered and applicable on or before their commencement and (b) the Customer has followed all Customer Obligations (c) the Customer is not in default on any fees in the Overall Agreements (d) the Customer has not increased the scope of the project with alterations to the website which are not set in the Proposal or by not following the process in the Proposal. If these conditions are not met, then the Customer- and Online Business Builders may further agree in writing on a revised timetable, which is then treated as a Timeline.
Should Online Business Builders not meet a Timeline as above then the Customer shall notify Online Business Builders in a written notice that they have failed to meet it, and Online Business Builders shall have two (2) weeks to meet such Timeline. Where Online Business Builders notifies that a Stage has been met, or any area of the site built, the Customer has 7 days or whatever other period is set down to reject that Stage in writing based on the Overall Agreements otherwise that Stage is deemed approved. Where no Timetable is set, Customer has the earlier of 7 days to reject site after final release, or 30 days from final payment of Development Fees, once this passes or final stage is signed off, Customer will have no right to complain that Web Site does not comply with Specific Agreements. Online Business Builders may cease development until a sign off is received.
Should Online Business Builders be in breach of any commitment to a Timetable deadline as above then Online Business Builders shall raise a credit against monthly charges to the extent of the delay caused by Online Business Builders up to a maximum of the Fees, this will be the sole compensation applicable to such a breach and under no circumstances will this agreement be repudiated. Where more than a year has elapsed from a request from Online Business Builders to a Customer to give specific content or feedback and this has not been given in the form required, then all obligations upon Online Business Builders to complete a site shall be at an end.
All duration and completion estimates given in time and materials specific agreements are indicative only and do not create any obligation on Online Business Builders. Online Business Builders is under no obligation to provide a breakdown of hours spent on any project.
Online Business Builders shall not be liable for any breach of its obligations under the Overall Agreements where such breach has been caused by;
” The lack of cooperation or access by the Customer,
” The lack of cooperation or provision of access by any third party whom (1) the Customer has required to liaise with or use the services or products of or (2) which is responsible for either hosting or developing any part of a web site on which Online Business Builders is performing services (“Third Party”),
” Any defective software of that Third Party which Online Business Builders needs to interact with and any defects or restrictions in any third party software that Online Business Builders uses to develop the website.
“Support Hours” are a number of hours derived by dividing the monthly fees by $139. Online Business Builders will provide up to the Support Hours per month to provide genuinely required support (not changes to the site). Any other services provided will be billed at $139 per hour ex GST. Online Business Builders’s obligations to support consist of responding to any issue arising from the Proposal within 3 business days with a resolution of such issue within a reasonable time. Outside of genuine support calls, the Customer is capped at 10 phone calls per week during development of the Website- calls over this will be charged at $139 per hour and all calls are deemed to be minimum 15 minutes duration.
Online Business Builders cannot accept responsibility for any alterations caused by the Customer or a third party occurring to the Customer’s site and pages once installed. Online Business Builders will not in any way be obligated to provide the Customer with any access by FTP or other service to the Web Site. If the login details to make direct updates are provided to the Customer then Online Business Builders takes no further liability for the Web Site. Further, if Online Business Builders is required to fix problems caused by such alterations then the minimum charge is one hours labour at $139 ex GST per hour. Such alterations include, but are not limited to additions, modifications, or deletions.
Platform and Domain.
The Customer specifically acknowledges that it is sufficient that the Web Site is functional on a client computer running the dominant version (at the time Online Business Builders starts developing the Web Site) of Internet Explorer and the Microsoft operating system.
Where applications or sites are developed on servers not recommended by Online Business Builders, the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the client’s responsibility to provide a suitable testing environment which is identical to the final production environment.
The client is expected to test fully any application or programming relating to a site developed by Online Business Builders before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Online Business Builders will endeavor (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief
Where the Specific Agreement includes Quarterly Updates, these updates are limited to existing pages not new pages. Changes to navigational or link structure of the site are not allowed. The Customer must send a single clear consolidated written specification and ail content to Online Business Builders if they require updates. Each Quarterly Update must be requested during the last week of each of the four quarters following the Specific Agreement acceptance. Each Quarterly Update is capped at the same hours as the ‘Support Hours’.
The Customer will own the code of the website, save for the core programming of the Customer’s site which has been developed by Online Business Builders (such as Content Management Systems, Database structure, PHP elements, Complex Menus and Forms etc “Core Programming Elements – CPE”). Online Business Builders must reuse these elements in other sites in order to remain in business; therefore Online Business Builders retains copyright to these elements of the site.
At the conclusion of this agreement, not before, the Customer may request a transfer of the code, which Online Business Builders will provide, and Online Business Builders may appropriately encrypt/protect pages or files which feature any CPE. The Customer warrants that any material supplied by them for the website is free of any legal claim and indemnifies Online Business Builders against same. Design of the site remains with the party that created the design, and the client agrees not to permit ‘framing’ of the site on the internet.
Standard Media Delivery
Unless otherwise specified in the Specific Agreements, all text will be provided by the Customer in PC (Not Mac) electronic format (ASCII text files delivered on disk or via e-mail or FTP) and that all photographs and other graphics will be provided in standard .gif, .jpeg, .png or .tiff format. Additional expenses may be incurred and will be invoiced accordingly for corrective work, conversion of media or outside facility charges. Online Business Builders will reasonably attempt to return materials provided, such return cannot be guaranteed.
Where the Specific Agreements refers to a certain number of pages In a Web Site then the Customer agrees not to provide unusually long pages to circumvent this restriction. Web pages are specifically not made to be formatted for printing from screen. Web Sites are specifically built to be best viewed at 1024×768 pixels resolution.
A link to Online Business Builders will appear as both a small type one line link or links and small graphic at the bottom of each page of the Web Site, bulk email, or any other output including printed or electronic output generated by any system developed by Online Business Builders
If flash has been provided in the Specific Agreements then the Customer acknowledges that Flash is a form of movie or artwork and a strict limit must be imposed on the number of hours Online Business Builders will spend on such. Unless agreed otherwise in writing Online Business Builders will spend no more than 1% of the total Fees (based on $139 per hour) for the entire project on any Flash components. Online Business Builders will make best endeavours to ensure Customer is satisfied with any such Flash or movement but invoice the Customer accordingly if extra work is required to meet Customer expectations.
Right to Pull, Spamming.
By signing this Agreement, the Customer agrees to give Online Business Builders “on demand” access to the Customer’s installed Web Site, and further agrees that Online Business Builders shall have the right to remove that site from public posting for failure to adhere to the terms of this Agreement or any breach of any applicable laws or court orders, or the commission of any act reasonably deemed to be such. If the Web Site is hosted with a third party then Customer agrees to immediately remove such site upon demand. Customer warrants that it will not use any of Online Business Builders e-mail or web servers for spamming or mass emailing nor use them as a contact point for any spamming or mass email. Spam is defined as any unsolicited email sent to multiple recipients where the Customer cannot prove by its records that the receiver has specifically requested such emails. Online Business Builders may seek to recover damages from any Customer that engages in such practices.
Customer acknowledges that Online Business Builders may pay commissions or fees to third parties or agents who have either helped with a sale or Customer acquisition or consulting.
Where the Customer has engaged Online Business Builders to register or renew a Domain name on behalf of the Customer, the Customer specifically acknowledges it is the Customers duty to note the expiry of such registration and notify Online Business Builders as per this agreement to extend it by giving at least one (1) months’ notice.
SEARCH ENGINE OPTIMISATION
Online Business Builders will carry out work only where a specific agreement is provided. Online Business Builders will carry out work only for clients who are 18 years of age or above.
Whilst Online Business Builders takes every care to submit your sites to major search engines if that is part of your Specific Agreements, it is up to each search engine if and when they will list your site and how high to rank it. Consequently:
- Online Business Builders shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- Online Business Builders do not represent or warrant that Customers’ URLs will achieve a favourable position, or any position, within a particular search engine.
- You expressly agree that use of the Online Business Builders Services provided hereunder is at your sole risk. These Services are provided on an “as is” and “as available” basis. Online Business Builders expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement.
Disclaimers And Limitations On Liability
We cannot take responsibility for any copyright infringements caused by materials submitted by the client. We reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material. We:
- Will not be liable or become involved in any disputes between the site owner and their clients and cannot be held responsible for any wrongdoing on the part of a site owner.
- Will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the client or any of the clients appointed agents.
- Will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.
- Shall not be responsible for delays or failure of performance resulting from Internet Service Provider delivery problems or failure, or any communication or delivery problems associated with Client’s receipt of the Account Service data. Online Business Builders shall not be responsible for acts or causes beyond their control, including but not limited to: acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters.
Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Online Business Builders’ control and could result in a breach of security. Accordingly, Online Business Builders cannot guarantee that Your Account Service data information will be free from corruption or piracy. You hereby expressly waive any claim against Online Business Builders arising out of the loss of data through corruption, piracy, breach of security or for any other reason that is not based on intentional or grossly negligent actions of Online Business Builders.
To the maximum extent allowed by law, Online Business Builders and any of officers, directors or employees shall not be liable for any direct, indirect, special, incidental or consequential damages (no matter how they arose, including negligence), or for interrupted communications, lost data or lost profits, arising out of or in connection with the Services provided hereunder.