The following terms of business apply to any or all of the web design, web development, web hosting, domain name registration, search engine optimisation or other services to be provided by Pixeld to you from time to time.
Server means the computer server equipment operated by us in connection with the provision of the Services. Web Site means the area on the Server allocated by Pixeld to you for use by you as a site on the Internet. Secure Web Page means the Web page operated and located on the Server which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded, because the page is encrypted.
Special terms of contracts
Web design services
You agree that in the provision of web design services by us we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and content, provided to us by you.
You are responsible to keep a copy of any existing Web Site which we may replace pursuant to the provision of web design services including all databases and hosted files. Pixeld can provide an archival solution for the existing website at our standard commercial rates.
We are not responsible for the contents of any Web Site we design for you, and upon publication you must satisfy yourselves that the Web Site will comply with all applicable laws, and codes of practice governing the use of Web Sites and related services. This includes the intellectual property and copyright ownership of all material that you have provided to us. Pixeld is similarly not responsible for your subsequent use of the site and your compliance of various commonwealth and state legislations.
All website content must be provided by you within 1 calendar month of invoice (project commencement). If your data is not supplied within 1 month, Pixeld reserves the right to issue a 30 day final submission notice. If no data is supplied within 2 calendar months of invoice, the project will be cancelled and subject to cancellation fees.
If your data is not complete within 1 month, Pixeld reserves the right to place your project on administrative hold at a cost of $100 per month for a period of 2 months. Should your data not be complete within 3 months of invoice, a 30 day final submission notice will be issued. Upon expiry, we will terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
You must provide complete feedback within 7 calendar days during design concept and production review. If no feedback is provided within this time, Pixeld reserves the right to move forward with the project, assuming no changes have been requested and that work is accepted in its current form. Any changes requested past this time are subject to our standard rates of $110 per hour or part thereof.
You may request an Administrative Hold of your project for up to 6 months at a cost of $100 per month. We will stop working on the project until you advise us that you are ready to move forward. If you exceed 6 months of the project being held, we will terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
You are responsible for the digital rights to any image that you supply to us in the course of a project.
Once your Web Site has been published, Pixeld will review and repair any pre-existing code errors and/or bugs in the website if reported within 30 days of publishing. Any cosmetic changes or alterations, or code errors reported outside of this time period will be subject to additional charges at our standard commercial rates of $110 per hour or part thereof.
30% upfront payment is required for CMS & E-Commerce website design services, with the balance required after production and prior to Web Site launch unless purchased under a monthly instalment package.
If purchased under a monthly instalment package a Web Site may be launched after production, however the intellectual property and digital assets for the Web Site are not transferred to you until the final monthly payment is made. If you require the intellectual property and digital assets for the Web Site during the payment plan, a request can be made to issue a final invoice, cancelling future instalments. Upon payments of the final invoice intellectual property and digital assets will be released.
If cancellation occurs before design is selected and site is put into production, a cancellation fee of $300 will apply and all prior payments will not be refunded. Once a site is placed into production, cancellation fee will be 100% of project cost and no refunds will be available.
While providing assistance in the obtaining of a merchant facility, Pixeld provide no guarantees that a bank will provide a merchant facility for your online store.
Pixeld warrant the software used as stable and secure at the time of delivery. Post delivery maintenance of the security of the site is the responsibility of the client or their agent, and not of Pixeld unless a management plan has been purchased.
Website hosting/email/secure webpage/virus protection terms
We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that: a. you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation; b. you will not knowingly or recklessly post, link to or transmit any material: i. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or ii. containing a virus or other hostile computer program; iii. that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and c. you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), Pixeld reserves it right to terminate services without prior notification.
You warrant, undertake and agree that:
any transactions within your Web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
the information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and the company expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.
You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified in the Service. All excess data will be charged at the rate of 0.4c/MB to the nearest whole MB. These charges will fall due at the completion of the calendar month on normal trading terms of 14 days from invoice. Pixeld will provide an online interface allowing authorised users to monitor website data traffic.
Domain name registration terms
We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
General terms and conditions
The following terms and conditions apply to all contracts and provision of all Services set out below:
We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.
Intellectual property rights and other consents
You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant financial institutions.
Without exception, intellectual property for all web design, web development, graphic design or similar services is transferred to you the client upon payment in full.
You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.
We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due.
We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
On termination of this agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($110/hr), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
If you wish to terminate your account with Pixeld, you must do so in writing to [email protected], otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Specifically, Pixeld will not accept verbal instructions to terminate an account. On receipt of your cancellation request, Pixeld will cancel your service at the first available opportunity.
There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.
All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our Web site and shall be due and payable within fourteen (14) days.
The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you.
If you fail to make payment within the terms of this agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 12% per annum, from the due date of the payment.
Upon provision of a credit card account, you give us authorisation to automatically debit your credit card for all charges on issuance of a valid invoice.
Once a payment has been made for a service provided by Pixeld it is non-refundable. Pixeld at it’s discretion may choose to refund a payment but is not obliged to.
If you nominate that the good(s) or service(s) you have purchased to be paper invoiced, you will be charged a $4.40 account fee per invoice issued.
Exclusion and limitation of liability
TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:
a. in relation to goods
i. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
ii. the repair of the goods or payment of the cost of having the goods repaired; b. in relation to services i. the supplying of the services again; or
ii. The payment of the cost of having the services supplied again as in each case we may elect.
Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.
If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
The benefit of this agreement may be assigned by us, but not our obligations to you – to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
Change to terms on renewal
We may change the terms and conditions of this Agreement at any time.
These terms and conditions constitute the entire agreement between Pixeld and you, and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the contract unless it is in writing and signed by authorised representatives of you and Pixeld.
Entire agreement, governing law
This agreement shall be governed by the laws in force in the state of Victoria. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.
Notifications & communications
In addition to general Account, Billing and Service communications, Pixeld will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by sending an email to [email protected] or by following ‘unsubscribe’ instructions contained within the communcitions
You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.