Welcome! It is important that you carefully read these terms and
conditions before proceeding.
When accepted by you they will form a legal agreement between you
and SmartWeb Canada Inc. and WebAlive for the provision of WebAlive
Services as defined.
SmartWebCanada
Inc. TERMS AND
CONDITIONS
SmartWeb Canada is the leading provider of WebAlive Software in
Canada.
WEBALIVE PTY LTD ABN 70 118 269 800 ("WebAlive", "We" or “Us”),
is the owner, developer and distributor of the services associated
with the building, management and hosting of web pages, including
access to software which allows you the customer (“You”) to build
and manage your (“Your”) website, and from time-to-time including
additional features and upgrades and enhancements and such other
services as agreed ("Services").
1)
Application and Variation of these Terms:These
terms and conditions are the terms on which WebAlive provide the
Services to you. These terms constitute the agreement in its
entirety and supersede prior agreements. We may modify these terms,
including the pricing for any of the Services, or give you notice
under this Agreement, by notice on our website and/or by
email.
2)
Copyright: All
reports and associated web site design, text, graphics, the
selection and arrangement thereof, and all software is Copyright
(c) 2000-2005 WebAlive. All Rights Reserved. Copyright in the
material contained within this site and reports subsist under the
Copyright Act 1968 (Cth) Australia and, through international
treaties, the laws of many other countries.
3) Term
of Agreement: This
Agreement made by you with WebAlive is for an initial term of 12
months and will then be renewed on our then current terms and
conditions for successive 12 month terms, unless either party
chooses not to renew it. WebAlive reserves the right to terminate
this Agreement at any time on 30 days email notice to
you.
4)
Payment: The
service fees are payable by you annually in advance. You are not
entitled to a refund of fees for early cancellation of this
Agreement (unless we terminate it other than by reason of your
default). All other fees are payable within 7 days of the date of
invoice. Accounts unpaid 60 days after date of invoice may have the
Services interrupted or terminated. Such interruption does not
relieve you the Customer of the obligation to make payments under
this Agreement. Accounts in default may be subject to an interest
charge on the outstanding balance of the lesser of 1.5% per month
or the maximum rate permitted by law. You agree, in the event of
default, to pay WebAlive its reasonable expenses, including legal
and collection agency fees, incurred in enforcing its rights under
this Agreement. Fees are exclusive of any taxes which may be levied
or assessed.. Any such taxes shall be paid by you the Customer. If
the whole or any part of a payment is the consideration for a
Taxable Supply for GST purposes, Customer must pay to WebAlive an
additional amount equal to the applicable GST amount with that
payment and WebAlive will provide to Customer a GST tax
invoice.
5)
Warranties: Certain
legislation (including the Trade Practices Act and Fair Trading
Acts) may imply terms, warranties or conditions that cannot be
excluded, restricted or modified (“Statutory Warranties”). Subject
to the Statutory Warranties and to any other warranties given
specifically:
• all
conditions, warranties and other provisions which might otherwise
have been implied into this Agreement or otherwise in relation to
the Services, are excluded; • the
disclaimer in relation to Java Technology (which may be used in
providing the Services) which appears below applies to this
Agreement; • you
acknowledge that all software (including that used to provide the
Services) may have errors, and that it is therefore your
responsibility to monitor and verify the use of the
Services.
6)
Limitation Of Liability: Where the
Services are not of a kind ordinarily acquired for personal,
domestic or household use or consumption, and it is fair and
reasonable to do so, the liability of WebAlive to the Customer is
limited, at the option of WebAlive, to:
• if the
claim relates to goods, repair or replacement of the goods or
payment of the cost of having the goods replaced; and • if the
claim relates to services, supplying the services again or payment
of the cost of having the services supplied again. To the extent
permitted by law, the liability of WebAlive to the Customer or any
other person, whether in contract, tort (including negligence),
under statute or otherwise, arising out of or in any way relating
to this Agreement: • except as
expressly stated in this Agreement, is excluded; • where it
cannot be excluded, is limited in total to the fees payable by you
for the Services; and • excludes
liability for any indirect, secondary or consequential loss or
damage or for loss of income, profits or anticipated savings or
loss of opportunity. • And you,
the user indemnify WebAlive against any loss or claim arising out
the use of the Services
7)
Initial down time: From the
time that WebAlive reserves a domain name on your behalf, there may
be a period of between 4 and 72 hours before the Services under
this Agreement become live. Care will be taken to minimize any such
period, but WebAlive does not guarantee nor take any responsibility
for web site down time and loss of e-mail during this
period.
8) Links
and Publicity: By
participating in this transaction you acknowledge and automatically
authorize WebAlive to use its name, and logo for the express and
sole purpose of identifying you as a client of WebAlive in its
Marketing material, both Print and Electronic. You automatically
authorize WebAlive to create a hyperlink from your web site to
WebAlive web sites. You may elect to withdraw your permission for
the use of same, but must do so in writing with 30 days
notification for withdrawal of any material from the commercial
domain. WebAlive accepts no liability for, nor warrants the
accuracy of content associated with any of its customer’s web
sites.
9)
Trademarks and Intellectual Property Rights: WebAlive
is the sole and exclusive owner of the Services and the underlying
software code and all Intellectual Property Rights in relation to
the Services. All improvements to the Services will remain the
property of WebAlive. WebAlive shall have and retain sole ownership
of its trademarks, including the goodwill pertaining
thereto.
10)
Acceptable Use: You the
Customer will ensure that your web site content (and anything
relating to your web site or to the Services) is not illegal;
deceptive; inaccurate; defamatory; pornographic, obscene or
sexually explicit; discriminatory to any race, ethnic group,
religion, or sect; discriminatory or offensive to the disabled or
any physically, socially or economically disadvantaged community
sector; discriminatory against any persons of a particular gender
or sexual persuasion; discriminatory against any professional or
trade group; offensive, or derogatory to any person or persons; or
likely to in any way interfere with or harm the business of any
person or entity or to interfere in any way with the natural course
of business. You will also ensure that your website is not used for
any "spamming" activity or any misleading or deceptive conduct or
other illegal or unethical marketing practice. You further warrant
that nothing on your site will breach copyright; or will be
contrary to the terms of any binding confidentiality or other
agreement or will breach of any Privacy Act or equivalent or any
other laws or legal requirement. WebAlive may, but shall not be
obligated to, immediately and without notice, terminate the
provision of Services to you and remove your web site or your
access to it, if in our reasonable opinion you may be in breach of
this clause of this Agreement and such termination may take place
immediately on detection of such conduct and without notice to you
the Customer. You acknowledge that you shall have no remedy or
recourse against WebAlive. Upon termination under this clause,
WebAlive shall have the right to delete and/or destroy any and all
of your site content and information, without accounting to you for
such destruction. You shall have no redress against WebAlive in
respect of any loss or claimed loss arising out of anything done
under this clause. Notwithstanding termination under this clause,
WebAlive shall be entitled to receive payment from you for the
Services for the term of this Agreement currently in force at the
time of such termination. WebAlive does not accept liability for
anything on your web site or which in any way relates to it and if
any claim is made or threatened against WebAlive in respect of your
web site or any use of the web site, you will indemnify and keep
fully indemnified each of them.
11)
Breach of Copyright: WebAlive
does not condone activities and actions that breach the rights of
copyright owners. It is your responsibility to obey all laws
governing copyright.
12)
Software License: WebAlive
hereby grants you a non-exclusive, non-transferable license to use
its software in object code form only, on a server controlled by
WebAlive, for the sole purpose of creating and maintaining a web
site on the WebAlive server, or on such other server as may be
licensed by WebAlive to host sites on its behalf, and under the
terms and conditions of such license. You may not copy or reproduce
the software either in full or in part, nor attempt to in any way
modify, alter, reverse engineer or de-compile the software. You are
not licensed to use or install the software, other than as
specifically authorised by WebAlive.
13) JAVA
DISCLAIMER:JAVA
TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED,
OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN
THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA
TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE
PHYSICAL OR ENVIRONMENTAL DAMAGE. (Sun Microsystems, Inc. has
required the inclusion of this disclaimer.)
14)
Trade and business obligations: You agree
to comply with all requirements for the conduct of business
applicable to persons conducting business both in Australia, and in
your country of residence and in particular not to breach any
export law or trade restriction by the sale or supply of goods or
services on your web site.
15)
Applicable law: Unless
prohibited by the law of your place of residence, the laws of
Victoria, Australia, govern this Agreement, and you submit to the
jurisdiction of the courts of Victoria.
SmartWeb
Canada SERVICES
AGREEMENT
By
selecting “Accept” you accept the terms and conditions of the
WebAlive SERVICES AGREEMENT for an initial term of 12 months and
you agree to pay the service fees in advance for the first 12
months.
