Terms and Conditions
- The Provider is Webskyler Pty Ltd;
- The Customer is the person or entity specified on the Account;
- The Service is the provision of web development related works and services, including all its components;
- The Account is the Customer's right to use the Service;
- The Service Date Commencement is the date service provisioning is completed and notice is given to the Customer, or the first date of use of the Service.
Application and Variation of these Terms
These terms and conditions are the terms on which the Provider offers services or goods to its Customers, modified by any signed written Agreement between the Provider and its Customers in any particular case. The terms so modified constitute the Agreement in its entirety and supersede prior Agreements. The Provider may modify these terms as applying to any Agreement, the pricing structure for any Service or the terms of the operation by general notice on a web page of the Internet referred to on the Webskyler website, and any use after that publication will constitute an acceptance of that modification.
This Agreement will remain in place until it is terminated by either the Provider or the Customer.
The Provider's Right to Terminate
The Provider reserves the right to terminate the Service to the Customer without notice upon the occasion of misuse or abuse of the Service by the Customer. What constitutes misuse of abuse of the Service is determined by the Provider. The Provider may also terminate the Service to the Customer if the Customer:
- Breaches these terms and conditions in any way;
- Uses the Service in any way which breaches civil or criminal laws;
- Acts in a way likely to threaten the continued operation of any Service offered by the Provider.
On termination of this Agreement, any terminated Services will be:
- Reinstated at the sole discretion of the Provider and attract a service reinstatement fee of $65 plus additional fees for site data restoration;
- At the sole discretion of the Provider, remain terminated indefinitely, and as such all files owned by the Customer will be made available to the Customer in a single backup file, within 10 business days, if and only if the Customer's Account is not in arrears, in which case after 10 business days, from the date of Service termination, the Provider is not obligated to issue the Customer a backup file or retain a backup of the Customer's files, with no penalty to the Provider.
The Customer's Right to Terminate
The Customer is at liberty to terminate a Service subject to the Provider's terms and conditions. Specifically, the Customer may at any time choose to terminate (i) service plans using the Webskyler website, with the change becoming effective one billing month after the service change or (ii) a website project as per the project terms and conditions herein.
Price and Payment Conditions
- The Provider shall supply the Account to the Customer;
- The price of the Service to the Customer is as displayed on the Webskyler website and as amended from time to time. Any amendments shall come into effect from the date of notice to Customers;
- The Customer shall pay the Provider the price of the Service by way of electronic payment, such as credit card method of payment using the Webskyler website;
- Credit checks may be undertaken at the Provider's discretion in circumstances relating to custom website development services;
- The Customer shall pay to the Provider all fees and charges applicable to the Service inclusions and any incidentals incurred by the Provider in the provision of Services to the Customer.
Provider's Right to Suspend Hosting Services
- The Provider reserves the right to suspend hosting services at the Provider's discretion, specifically, the Provider may or may not provide the Customer notice of the suspension on a case by case basis, and the Provider may suspend for financial or Service abuse reasons;
- A suspended Service continues to have the Account, files and settings attached but is no longer operational;
- An unpaid hosting service will be suspended, and not terminated, if and only if the Customer has provided a three month security deposit to the Provider, and subsequent to suspension, the Provider may use the security deposit towards unpaid fees and in doing so may also elect to terminate the hosting service;
- The suspended Service is to take effect immediately or within 24 hours, on a case by case assessment made by the Provider.
Customer's Right to Suspend Hosting Services
- A Customer is able to suspend a hosting service for up to three months within a 24 month period;
- A suspended service incurs a pay in advance fee of $23 per month, for a maximum of three months;
- A suspended Service continues to have the Account, files and settings attached, but is no longer functions as an operational service for the Customer;
- The suspended Service is effective within 24 hours of the Service change request.
A project where the Customer has not provided approvals, feedback or payment, within 10 business days, will be paused (suspended):
- As many times as required by the Provider but for no longer than three months at any one time, at which point the Provider is able to terminate the project;
- Resumed only on the authority of the Customer if and only if delayed feedback, approvals or payment is also resolved by the Customer;
- Projects which are resumed will recommence one billing month after the Customer's request to resume the project;
- The project is terminated by the Provider after three months if and only if the project is not resumed by the Customer in this time, and subsequently all files that are related to the project will be deleted from the Service and will become unrecoverable;
- At the termination of a project, all money paid to the Provider will be forfeited in its entirety by the Customer and the Provider will owe the Customer no further obligation in terms of completing the project. Project termination may occur at any stage of the project development cycle, including after the project has been delivered to the Customer.
The Customer hereby indemnifies and shall keep indemnified the Provider in respect to any loss or damage action claim suit or proceeding against the Provider by any person in respect to the use of the Customer's Account, including but not limited to the transmission of any illegal and or fraudulent material which the Customer transmits or causes to be transmitted using the use of the Provider's Service. Additionally, the Customer further indemnifies the Provider for any liability incurred as a result of violation of copyright, false or libelous information placed onto the Service, or illegal activities conducted through the Customer's Account. The Provider will not be liable for loss of sales, leads or reputation from using the Service.
Provision and Use of the Service
- The Provider may monitor and keep any records that the Provider deems necessary of the use of the Service, the use of the information primarily for authorities in the event of such information being requested of the Provider;
- The use of the Service, which includes the contents thereof and any storage or use of information is at the Customer's risk;
- The Provider does not nor do any of their information providers, licensors, employees or agents warrant that the Service will be uninterrupted or error free; nor does the Provider, licensors, employees of agents make any warranty as to the results obtained from the use of this Service;
- The Service is distributed on an 'as is' basis without warranties of any kind, either expressed or implied including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or use with respect to the service of information;
- The Provider of anyone else involved in creating, producing or delivering the Services shall not be liable for any direct, indirect, incidental, special or consequential damages arising out of the use of the Service or inability to use the Service;
- The Provider's facilities cannot be used by any individual or group of persons for any activities of an illegal or fraudulent nature, including illegal activities as defined under relevant law;
- The Provider may remove information from the Provider's Service if that information was placed there in a manner contrary to these conditions or use, or in a manner which is illegal or likely to threaten the continued operation of the Service, persons or entity as governed by the laws in force by Australian, State law or jurisdictions of Courts of that State;
- Any material entered into the Service by the Customer is considered a "publication" by the Customer and has the same legal status as a publication in writing or any other form, and as such, the Provider is deemed the carrier of such information, not the publisher.
All notices and other communications provided for or permitted hereunder shall be in the written form and and shall be sent by;
- Verified postal mail to Webskyler, Po box 7940, Cairns Queensland, 4870;
- Electronic mail;
- Except as otherwise expressly provided in these terms, the provisions hereof shall inure to the benefit of and be binding upon the successors, assigns, heirs, executors and administrators of the parties hereto;
- These terms and the other documents delivered pursuant hereto constitute the full and entire understanding and Agreement between the parties with regard to the subject matter of same;
- Neither this Agreement nor any term in it may be amended, waived, discharged or terminated except by a written instrument signed by all parties hereto and or as specified herein.
Customer Rights and Obligations
The Customer is solely responsible for:
- Any material on the Service and any use of any nature of the Service;
- Service changes and charges incurred from such through their use of the Service;
- Breaches of the Provider's terms and conditions directly or indirectly from their Service Account;
- Breaches of civil or criminal laws resulting directly or indirectly from their Service Account;
- The distribution of any information or content providing that redistribution is consistent to relevant copyright notices attached to that information or content, and is accompanied by an acknowledgment to the original source;
- Any material entered into the Service by the Customer is considered a "publication" by the Customer and has the same legal status as a publication in writing or any other form, and as such, the Customer is deemed the publisher of the information or content and is solely responsible for complying with the relevant laws;
- Consenting to the same redistribution conditions on any material they place on the Service unless a specific notice reserving copyright or imposing other conditions on the further use of that material is attached to it;
- Protecting their information, content and intellectual property;
- Maintaining communication with the Provider that is non-abusive and free of unsubstantiated allegations about the Provider and its licensors, agents and subcontractors, directly or indirectly to the Provider. A Customer's failure to do so (i) will result in an immediate termination of the Customer's Service without notice and without any form of penalty to the Provider and its agents, (ii) any websites of the Customer will be made available to the Customer within 10 business days in an electronic format, (iii) the Provider will not re-instate the Customer's Service and Account in the future and (iv) if a security deposit is held, the security deposit will be returned to the Customer within 10 business days, in full or partial amount, subject to the Provider using the security deposit to settle the Customer's Account;
- Any cost and time for educational and training materials for all and any technology products and or services, including the use of coding languages;
- Off-line/off-site back ups.
The Provider recommends the use of royalty-free images or licensed images on all of its Customer's Services. If the Provider uses images on Customer Services, the Provider will only make use of royalty-free images or correctly licensed images and the Customer should make available to the Provider such licenses prior to use. Licensed images should be (i) used as is, (ii) remain unaltered in dimension to ensure correct usage rights and (iii) remain for sole use on the Service to ensure correct usage rights for a particular medium.
The system that runs the Customer's Service remains the property of the Provider at all times. The Customer owns the website files, content, style and design. The Customer is at liberty to request a backup and this backup shall be made available to the Customer by the Provider within 10 business days.
The Service can not be used to disseminate, communicate, store or transmit:
- Copyright infringing data;
- Trade secret protected data;
- Content sexually explicit in nature;
- Is defamatory, harassing or threatening;
- Is deemed inappropriate by the Provider;
- Relates to illegal business operations or schemes;
- Information that contains virus', worms or malicious elements;
- Contains deliberately misleading, incomplete or deceptive content;
- Data that infringes on any intellectual property, publicity rights or privacy rights.
As part of the website build and hosting, the Customer agrees to allow the Provider the right to include links from a website to the Webskyler website.
The Provider reserves the right to use Customer's websites, web designs, layouts, prototypes, wireframes and collateral marketing initiatives.
Request for General Services, Design and Development
- Quotes are issued between 3 to 5 business days to Customers;
- Quotes are valid for only 10 business days from the date of the quote, and a quote acceptance should be provided to the Provider within the time period;
- The deposit for the accepted quote is required 5 business days after accepting the quote;
- Completion dates shown on all quotes are estimations, as such they are subject to change;
- For quicker turnaround requests, the Provider will charge an expedited premium on top of the quote for the work.
Help Desk Support
If a Service is completely offline:
- The Customer shall email email@example.com or call 1300 763 969 for assistance;
- The Provider will need to determine the nature of the problem and rectify issues relating to its Service only, at no cost to the Customer and at no penalty to the Provider;
- For issues originating from the Customer's use of the Service, the Provider will notify the Customer of such an instance, and only rectify on the authority of the Customer. Fees apply.
Other Service Enquiries
The Customer shall email firstname.lastname@example.org and state the problem description and attach any relevant information, including screenshots, to assist with describing the issue.
- The Provider offers an email / support ticket style help desk with optional remote desktop support service;
- Support is business hours Monday to Friday (AEST), excluding all Queensland public holidays, Christmas and New Year;
- Immediate help to setup mail programs on mobile, tablet and PCs is provided via phone or optional remote desktop service;
- All online design and development work requiring less than 2 hours time will be rectified within 24 hours of receiving the issue. For a faster response, a surcharge fee of $180 ex GST is applicable;
- All online design and development work requiring 2+ hours time will be given a fixed time frame for when the work will be scheduled, to fit in with Customer's online business activities. For faster responses, a surcharge of $180 ex GST is applicable;
- Customer's must authorise any solutions prior to any design and development work;
- Depending on the nature of the service that is required, quotations can take 3 - 5 days to issue as details of the quote are made in consultation with the Customer;
- The Provider publishes on its website the rates for a range of additional services;
- The Provider shall communicate with the Customer only on issues relating to Services offered by the Provider;
- Without notice to the Customer, the Provider reserves the right to disregard all communication from the Customer that does not describe the problem free of abuse of any nature. This includes communication in its entirety and as such, the Customer shall communicate only the details specific to the Service.
- Payment for Services are as defined by the Service plan payment description purchased at the Webskyler website or the accepted Service quote;
- Projects where staged monthly payments are applicable will only have work carried out once the monthly payment has been received for that following month's work;
- The option to fast-track work is available subject to the Provider's current work schedule. This service attracts an additional fee and will only be carried out by the Provider if there is an accepted quote;
- The Customer's development project is built on a temporary domain. The project will make use of the official domain once full payment has been received;
- If the Customer identifies issues with site after making full payment of the project, the Customer will communicate to the Provider all issues within 5 business days of making final payment.
Refund Policy Pay As You Build
- If the project is terminated by either party, the Customer maybe eligible a for 50% deposit refund of the project, at anytime of the project construction, but not after being completed and delivered to the Customer;
- Either party must notify the other party in writing of the end date of the project;
- The refund, if any, is subject to any costs incurred to the Provider up to the project's end date;
- The Provider will supply the Customer a ledger of all costs incurred during the undertaking of the project to justify a refund amount, if any.
Refund Policy Custom Website Service
- The deposit paid to the Provider by the Customer is not refundable at any stage of the project development including after the completion of the project;
- A refund or partial refund is not applicable to hosting, domain name, email services, stock photography, third party providers and project meetings with Customers;
- A partial refund may be available to the Customer subject to the following (i) the Customer makes a request in writing and specifies the project end date, (ii) the amount refunded is calculated from the date when the first progress payment after the deposit was received to the project end date, (iii) the partial refund is calculated based on deducting the costs associated with the work undertaken by the Provider, charged at the current hourly rate, and or all expenses incurred by Webskyler relating to the project up to the end project date. A ledger of the work completed and or expenses incurred will be supplied to the Customer to assist with justifying the partial refund amount, if one is applicable;
- Work and expenses undertaken on a project may include but is not limited to (i) all consultations between the Provider and the Customer, (ii) concepts and demos of any nature produced by the Provider, (iii) time for planning, sourcing materials, strategy, developer discussions and any and all incidental human resources related to the project, (iv) resources and time by the Provider and its subcontractors in response to a Customer's authorisation to carry out any design and development work at any time after the authorisation was received from the Customer, (v) expenses incurred for photography services, third party technology products and services and (vi) all reasonable expenses related to the project;
- Once the project has been delivered on the Customer's domain name, no refund will be made available to the Customer;
- If a task fees become overdue by more than 30 days the Provider will put a project and all Services such as email and domain names on hold until all outstanding fees are received;
- If task fees become overdue by more than 90 days the Provider will send the Customer's Account to a debt collection agency. The Customer is then liable for any fees incurred in the recouping of the fees charged by the debt collecting agency.
Subscription Monthly and Yearly Services
- The Customer is billed in advance;
- A refund or partial refund is not eligible for a previous payment;
- The provider does not accept cheque, direct deposits or cash are payment methods;
- A non-payment fee will result in the Provider terminating the Service unless a security deposit is held by the Provider for the service, and in this case the Service will be suspended;
- All outstanding monies for Services are due to the Provider within 90 days;
- A reinstatement fee and applicable data restoration fees is required by the Provider;
- Services that are unpaid for after 90 days will be referred to a debt collection agency and the Customer is liable for all fees incurred by the debt collecting agency by the Provider in recouping the costs of the outstanding Service fees;
- Although the Customer's website may not be live during development, the Account still costs the Provider for things such as support, domain name, email hosting, bandwidth, server development disk space and system upgrades, as such, the pay as you build payments are required one month in advance;
- Customer's may manage their billing at the Webskyler website or by notifying the Provider of changes in writing;
- A change to the Service and billing amount will be in effect one billing month from the date of Service change.
The Provider undertakes projects as per the inclusions displayed at the time of purchase for pay as you build website plans or as per the accepted proposal for custom website development. As the Customer, please read and understand the terms and conditions of the project.
- At anytime, additional work can be requested. The Provider will prepare a quotation for the additional works and estimated additional time;
- This quote will be submitted to the project owner for consideration and may require full or partial payment for the the project variation before the Provider is to commence works;
- The Provider will only commence project variations when there is an approved and paid for project variation, and the works will be carried out as per the approved quotation.
All work is undertaken in stages, and each stage of the work must be scheduled prior to the Provider commencing work. An estimated completion date can be provided to the project owner upon request. As the completion is only an estimate, the work may change, be delayed or paused, causing the estimated completion date to change. Work can only be scheduled once:
- All materials such as files, information etc is received from the project owner as per the Provider's criteria for the stage of work;
- The appropriate approvals are received for the upcoming work to be undertaken for the new stage of work.
The Provider is not responsible for any delays by the Customer which are perceived to have arisen from third party suppliers, the project owner or the Provider. Any project delays shall be communicated between the parties and the schedule of works will be adjusted to reflect the project's estimated time for completion. Any delays will not incur financial penalties to the Provider or Customer as the estimated time for completion for stage work or the project as a whole is as such an estimation.
The Customer's privacy is important. The Provider will never sell, lease or distribute the Customer's contact details to any third party. The Provider will only reveal data pertaining to a Customer Account if compelled to do so by law.
Fair Use Policy
The Provider employs a fair use policy to all Services. If the Provider believes, for any reason, that the Customer is not behaving in a manner expected of a Webskyler customer then the Provider reserves the right to terminate the Customer's Services and Account - effective immediately.
The Customer may display the Provider's website on an internet access device, and occasionally, and only in circumstances that constitute "fair use" under applicable copyright law, print copies of insubstantial portions of the Provider's website. The Customer may not modify the Webskyler website, or any portion of it, except with the express written consent of the Provider.
The Provider will make efforts to ensure that Services are online 24x7 every day of the year. However, this will not always be possible. There are times when Services will be unavailable, sometimes for reasons that are outside the control of the Provider. When the Service is offline the Provider will do its best to get it online as soon as possible. The Provider will not be held responsible for damage, events or losses directly or indirectly related to Services being inaccessible.
Customers with a dedicated hosting Service plan will have demanding hosting needs; expect a large volume of users to visit their website in a short space of time for viral marketing campaigns, mass media exposure etc, and as such, dedicated hosting Service Customers should notify the Provider well in advance about future online marketing campaigns and scheduling.
Service Level Agreement
The Provider endeavors to offer at least 99.9% up time on hosting services. Network issues beyond the control of the Provider will be experienced from time to time and will not result in a penalty to the Provider. Further, the Provider's system is highly secure from the actions of hackers, viruses and other problems on the Internet but the Provider can make no guarantees.
Disclaimer of Warranties
The Provider does not give any warranty in respect of the Services other than as is implied by law.
If a clause or part of a clause is read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part thereof is to be treated as removed from this document, but the rest of this document is not affected.
The parties will, in good faith, attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by negotiation. Either party may initiate negotiations by providing written notice in letter-form to the other party, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within five days with a statement of its position on, and recommended solution to, the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority will meet at a mutually agreeable time and place within ten days of the date of the initial notice in order to exchange relevant information and perspectives, and attempt to resolve the dispute. If the dispute is not resolved by these negotiations, the matter shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitration.
Mediators Australia Mediation and Conciliation Rules
If the dispute or difference is not settled within 30 days of the submission to mediation and provided such period is not extended by consent of the parties, it shall be and is hereby submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitration.
Notwithstanding the existence of a dispute or difference each party shall continue to perform the Agreement.
This clause shall survive termination of this Agreement.
This website is governed by the laws of the state of Queensland, Australia. Any dispute arising from the use of this website will be settled in this jurisdiction.
Terms and conditions effective 10th October 2017