Last updated: April 3, 2019
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
The Service and its original content, features and functionality are and will remain the exclusive property of EFOUR Web Developers and its licensors.
Links To Other Web Sites
Our Service may contain links to third-party web sites or services that are not owned or controlled by EFOUR Web Developers.
EFOUR Web Developers has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that EFOUR Web Developers shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
These Terms shall be governed and construed in accordance with the laws of Australia without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.
Website Development – Terms of Service
This is the agreement we use for delivering website services. We encourage you to read and understand the agreement as it explains what each of us are responsible for, and is designed to protect you as well as us.
These terms and conditions define our working relationship with you. Unless otherwise agreed to in writing by both parties, these terms apply from the date of our Proposal and cover all of the deliverables you ask us to provide. If there is any part of the Proposal that you do not understand, please let us know before agreeing to this terms.
- What we do?
- We will provide the services and deliverables described in the Proposal in exchange for receipt of payment set out in the Proposal.
- We may subcontract part of the work or use external suppliers. Any subcontractors or external suppliers will be bound by the terms of this agreement.
- Additional services and variations
- We can assist you with services not already identified in the Proposal. This will require a new agreement and attract an additional cost. Please note that service rates may be adjusted from time to time and will not necessarily be the same as set out in the current Proposal.
- Any additional work outside the scope of the Proposal including small tasks will be charged at our hourly rate.
- The online world is changing all the time. If we think something that we had offered to do is no longer effective, or no longer available, or there is something that we consider to be even better than what we first proposed, we may choose to change parts of the service offered to you. If we change parts of the service we will let you know. There will be no extra cost to you, and no reduction in the price.
- Testing, revisions, deviations and acceptance of the website
- Once we believe the website is complete in accordance with the Proposal we will notify you either verbally or in writing, and provide you with an opportunity to test and review the website.
- If there is a problem with functionality or you believe we have missed something in the Proposal, please let us know and we will carry out any necessary and reasonable modifications without extra charge.
- We will provide you with the opportunity to provide two rounds of revisions of content after the draft website is completed.
- You have 7 days to provide changes and comments after we send you the draft. If you do not provide a response, we will proceed as if no changes are required.
- Changes and comments must be provided in writing.
- Changes and comments must be provided in one complete brief and not multiple emails.
- We will consider each email about changes as a separate round.
- Extended revisions outside of this scope will be charged at our hourly rates.
- Any additional work outside the scope of the proposal including small tasks will be charged either at our hourly rate and invoiced or annotated on the deviations section by quote on the last page of this proposal.
- During development or after handover of the website, if anyone other than us attempts to update, edit or alter website pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the website’s architecture, time to repair pages will be treated as additional work.
- How long will it take?
- We aim to deliver the services you have requested within the time frames or by the due date that we have promised in the Proposal. Naturally, if we are waiting on you to give us specific information, those time frames will be affected and we will need to revise the due date.
- If something happens that is beyond our control like a force majeure event, and it is going to delay the time of delivery of the services, we will let you know straight away and tell you our revised due date.
- We rely upon you to provide timely materials and responses to our requests for information.
- If after repeated attempts to begin, continue or finalise the delivery of services you fail to participate or become unresponsive to our emails or phone calls for a period of 60 days without explanation (abandonment), the services will be cancelled
- Upon cancellation of the services due to abandonment, you will pay us an amount equal to the greater of the deposit, or a reasonable amount for the expenses already incurred and work we have completed at that time.
- If the services are terminated due to abandonment, we will not and are under no obligation to provide any deliverables, any domain name registration within our control will be cancelled and hosting will cease.
- Our Responsibilities
- We will provide the services in a professional and competent manner. We will communicate our progress to you regularly.
- Upon payment in full for website development we will supply the last backup of the site and associated data and either:
- Ensure the website is ‘live’ and visible on the internet, looking after your hosting and domain name registration as part of your Ongoing Management; or
- take all reasonable steps to transfer the domain name to your nominated registrar and handover the website data to you to transfer your hosting to another service provider.
- Your Responsibilities
- You authorise us to access your hosting account, disk space, create databases and applications, submit pages of your website to search engines and all other activities reasonably necessary to complete the deliverables set out in the Proposal.
- You are responsible for providing to us all of the content you would like us to upload to your website, unless you have elected content creation as a service.
- You will provide all information and materials to us and respond to our requests within 7 days. If we do not hear from you within 7 days, work on your project will be suspended and the due date will be extended.
- You will carefully check the website for accuracy in all respects, ranging from spelling and grammar to technical illustrations. We are not liable for errors or omissions.
- You will cooperate with us so that we can complete the services in a timely and efficient manner.
- You will pay our accounts on time.
- You acknowledge that websites cannot be guaranteed to be 100% error free in construction and you acknowledge that the existence of errors falling short of a complete failure of consideration in the website development shall not constitute a reason to terminate the agreement between you and us.
- You indemnify Damen Edwards against any claims, actions, loss or damage (including legal costs) arising directly or indirectly from any:
- errors and omissions in content;
- unauthorised use of copyright works or other intellectual property in relation to your website;
- failure of software supplied to you;
- failure of services provided by the registrars
- failure of services provided by the hosting provider;
- provision of services by us to you;
- loss of website data
- You agree to pay the cost of the services and deliverables as set out in the Proposal. The prices set out in the Proposal are valid for acceptance for a period of 30 days from the date of the proposal and are otherwise subject to change.
- OPTION 1 We require a 30% deposit before commencing work on the website. The balance of payments are due at completion of the stages identified in this Proposal.
- OPTION 2 We require the first monthly instalment before commencing work on the website. The balance of payments are due on the same day as the initial payment each month until the balance has been paid as identified in the proposal.
- By selecting Option 2 you have also elected our ongoing basic server support package as set out in this proposal and the monthly repayments will start on the same day one month after the balance for the website build has been paid in full.
- If you choose to upgrade your Ongoing Maintenance and SEO Package you will be charged for one package only.
- Your website will not be publicly accessible until payment for development has been received in full.
- Unless you have elected our Ongoing Management service, you are solely responsible for the payment of domain registration and hosting set-up and fees.
- Ongoing Management fees are payable monthly by direct deposit from your nominated account or by credit card. The monthly management costs are due on the same day each month. You authorise us to deduct the Ongoing Management fee at the agreed payment frequency until this agreement is cancelled.
- If your Ongoing Management fee falls into arrears, you authorise us to deduct the outstanding balance to bring your account back up to date.
- If an automatic direct debit payment is reversed by your financial institution, we will try to contact you to re-try the debit. If the debit remains outstanding it will be processed within 14 days of the reversal with any reversal fees that apply. You authorise us to debit your account an amount equivalent to the amount our bank charges us for reversal fees in addition to the outstanding balance.
- If unpaid fees remain outstanding after attempts by us to rectify the arrears, we may forward the debt to a collection agency to take further action.
- Please be aware that it is your responsibility to cancel direct debit facilities in respect of your Ongoing Management fees when this agreement expires, is cancelled or terminated.
- Once we have commenced work, fees are not refundable simply because you have changed your mind.
- If you do change your mind, you will pay us an amount equal to the greater of the deposit, or a reasonable amount for the expenses already incurred and work we have completed at the time you let us know that you don’t want us to proceed. We will tell you what we think is a reasonable fee and aim to reach an agreement with you.
- Ongoing Management – domain names and hosting
- All domain name registrations are subject to availability and registration rules. We currently use Fast Comet Pty Ltd (registrar) to manage domain names on behalf of our clients.
- If you have elected Ongoing Management services:
- you are bound by the registrar’s “Domain name registration terms” which are found on their website: www.godaddy.com;
- you agree to be bound by our hosting terms of service;
- we will manage the hosting, domain name and payment of applicable fees on your behalf. You authorise us to debit those fees from your account in your next monthly direct debit after they have been incurred.
- If you do not choose our Ongoing Management services you are responsible for:
- all communications and support requests with your registrar and hosting provider;
- management of your domain name and payment of registration renewal fees; and
- payment of hosting fees.
- In the event that you not comply with the hosting terms of service or fall more than one month overdue on Ongoing Management fees, we have the right to do any one or all of the following actions:
- display a holding page or deactivation page in place of your website until the issue is resolved;
- disable or deactivate the website or attached services. This may include loss of email functionality and/or web services may become unavailable; or
- permanently remove any of your website data and/or emails from our server.
- You may bring an end to our Ongoing Management services by providing us with at least 30 days notice of termination. The balance of any monthly fees already paid will not be refunded. You will be responsible for nominating a hosting service and registrar for the transfer of your domain name and redirection of website data. Fees will continue to be charged to your account until you have provided us with the details necessary to effect transfer.
- If you choose to not continue with our host services, all fees associated with transferring your website and all associated files from our host server to another host server will be paid by you.
- Open source software
- We use a lot of open source software and components to supply websites and services to clients. We do not charge additional licensing fees on open source software.
- All software and components not developed by us retain the original licence and terms associated with that software. We cannot assign any rights to you and you agree to be bound by the original developer’s licence terms.
- Intellectual property – trademark, copyright etc
- You warrant that you have all necessary copyright and other permissions to use and display online the content you provide to us for the website, and that such content does not infringe upon the intellectual property rights of any other person. You agree to indemnify us from any liability (including legal fees and costs), threatened or actual, arising from the use of information and content provided by you.
- You are responsible for managing any intellectual property complaint made in regard to any of the content or operation of your website.
- We reserve the right not to publish content unless you are able to provide adequate proof of permission to use that material.
- You consent to our creation of a credit and link in the footer of your website and agree to retain that link for a period of 12 months. You agree the credit and link will be removed in the event that you make, or authorise any other person to make substantial changes to your website.
- You consent to our use of your website, associated graphics and any unused ideas and development in the promotion of our services.
- Third party services
- The services we provide rely upon the continued operation of online facilities that we use. We will not be liable for any third party failures affecting the provision of our services.
- You acknowledge that third party search engines may change their policies and systems at any time. We will do our best to accommodate those changes promptly but cannot be held liable for fluctuations, alterations or removal of your listing as a result of the actions of a third party which are out of our control.
- You acknowledge that third party browsers and devices may change their policies and systems at any time. Our services are aimed toward appropriate appearance on the most common browsers – Explorer and Firefox – as well as mobile capability. We cannot guarantee that your website will appear perfectly on every available device.
- If you enter into an agreement with a third party as a result of our recommendation it is still your responsibility to understand and negotiate your own terms of agreement with them.
- Limitation of Liability
- We make no guarantees about any improvement you may gain as a result of our services or any increase in business that may be generated for you through our services.
- You agree that the total aggregate liability to us for any claim by you in respect of any service of services provided to you is limited to the total amount paid by you, to us for that service.
- To the fullest extent permissible by law, and without limiting the application of Australian Consumer Law, in the event of any fault in the services, our liability will be limited at our choice to:
- the supplying of the services again;
- the repair of any fault in the services caused by us;
- the payment of the cost of having any fault in the services caused by us repaired; or
- the payment of the cost of having the services supplied again.
- This limitation of liability applies to the fullest extent permitted by law, and survives any termination or expiration of this agreement, or your use of our services.
- General Terms
- Confidentiality – Some of the information that you provide to us will be information that is clearly important and confidential to your business. We will only use that information to provide services to you and will not share it. Other information you provide will be for publication as part of the service we provide to you, and that information will not be kept confidential. Our contracts and business methods are confidential to our business, and we request that you keep them confidential.
- Privacy – Any personal information collected by us in the course of providing services will only be used to provide services to you and for no other purpose. If you provide us with a testimonial or referral, your name, job title and business may be published.
- Recommendations – if we make any third party recommendations, we do so because to the best of our knowledge they are professional and successful service providers. You are still required to do all due diligence to protect your company, staff and your own legal rights.
- Relationship – We are providing services to you as an independent contractor and nothing in this agreement should be interpreted to suggest otherwise.
- Amendment – These terms can only be amended by agreement in writing between the parties.
- Assignment – You may only assign or transfer your rights or obligations under this agreement with our prior written consent.
- No Waiver – Any time or other indulgence granted by us will not in any way amount to a waiver of any of our rights or remedies under this agreement.
- Governing law – This agreement is governed by the laws of NSW and you agree to be subject to the jurisdiction of the courts of NSW, if there was a serious dispute between you and us.
- Severability – If for some reason a clause of this agreement turns out to be unenforceable, the rest of this agreement will continue unaffected and that term will be severed.
- Enforceability – Even if you don’t sign this agreement, if you purchase our services and we provide those services to you, you agree to these terms. You can sign this agreement and send a scanned copy to us rather than a paper original.
- Entire agreement – Whatever ends up in this document or the Proposal is the agreement between us and anything else discussed beforehand or afterward is not part of the agreement or fees charged unless it was included.
In this document the following definitions apply in order to avoid confusion:
Damen Edwards ‘we’, ‘us’ or ‘our’ or means EFOUR Web Developers, its officers, employees, contractors, successors and assigns.
Client ‘you’ or ‘your’ means you, our valued client as identified in the Proposal, your successors and assigns.
agreement means the terms included in this document, the Proposal document(s) and any other material identified in this document, together with any exhibits, schedules or attachments to this document.
content means all materials, information, photography, writings and other creative content necessary to produce the deliverables.
copyright means the proprietary rights in original works of authorship, expressed in a tangible form, as defined and enforceable under Australian and International Copyright Law.
deliverables means the services and product specified in the Proposal to be delivered by Damen Edwards to the Client, in the form specified in the Proposal.
force majeure event means an event that is beyond our control not limited to fire, earthquake, labour dispute, act of God, death, illness or incapacity affecting Damen Edwards or any local, state, federal, national or international law, governmental order.
open source software means computer software for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, and improve the software.
Ongoing Management means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software updates, domain name renewal and hosting costs and support.
Services Means all work completed in order to provide the Client with the deliverables.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 15 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
If you have any questions about these Terms, please contact us.