• GENERAL - These conditions of Web Design Magic (WDM) apply to the exclusion of any terms or conditions of the Customer. No variation of these conditions will be binding on WDM or form part of any contract unless expressly accepted by WDM in writing.
• ESTIMATES - WDM will usually attempt to estimate a price. Where possible a full brief, preferably in writing should be supplied by the Customer to WDM before such an estimate can be prepared.
• COST VARIATIONS - All prices quoted are, in the absence of specific written agreement to the contrary, estimated only. WDM quotations for design work are based upon projected working hours at the current studio rate, plus materials and are subject to amendment on or after acceptance to meet any rise or fall in such rates or material costs. Any increased charges or costs arising from alterations or additions to contractual specifications or to work previously approved, may be charged to the Customer. Other expenditure such as material sub-contracted on behalf of the Customer will be quoted separately. A fair use policy applies to image purchases where the customer will be charged for all image purchases from www.istockphoto.com over $20 total. 
• CONSEQUENTIAL LOSS - WDM shall not be liable for any loss or damage, whether direct or consequential, which is or may be occasioned to the Customer or to any person with whom he is in contractual relations which is in any way attributable to any delay in performance or completion of any contract between WDM and the Customer, however that delay arises.
•  CUSTOMERS¹ PROPERTY - Customers property when supplied to WDM will be held at the risk of the Customer, although all reasonable care will be taken to prevent loss or damage. If 3rd parties are sub contracted by WDM and are to use artwork to complete their requested task, then all artwork remains the property of the WDM customer and may not be copied or used in any manner by the 3rd party for their own works outside of WDM. Once the job has been completed all copies of the artwork either hard or soft are to be returned to WDM or be completely deleted from their systems or servers.
• INITIAL WORK - Work produced, whether experimentally or otherwise, at Customer request will be charged for unless otherwise agreed in writing. If the Customer wishes to terminate an order at this stage, a termination invoice will be drawn up charging for time and materials up to this point.
• PROOFS - Final proofs will be presented by WDM to the Customer for approval prior to publishing. When approval is given by the Customer in the form of a signature upon our approval stamp, they are assumed by WDM to have studied all aspects of the material presented and to be satisfied with them, noting any exceptions in writing.
• TESTING - It is expected that the customer has tested the site in full (User Acceptance Testing) before the “Sign Off’ form is returned and that the customer understands that any changes required to be made to the website after the signed form is returned will be charged at applicable rates. The customer will have 60 days after the website hand over to notify WDM of any programming mistakes or errors and at this time should notify WDM in writing. After 60 days any programming or changes, regardless of error, will be charged at programming rates.
• WARRANTIES - WDM makes no warranties for development that has been tested and has been proven to work at the time of hand over and then has stopped working due to circumstances beyond our control. This may include changes to software, plug in’s, hardware, hosting services, internet browsers, updates, operating systems and other third party products.
• IN THE EVENT THAT - a) the customer becomes apparently insolvent (within the meaning of the Bankruptcy) or makes any voluntary arrangement with it¹s creditors, or (b) a petition is presented or a resolution is passed to wind up the customer (other than for the purposes of reconstruction or amalgamation as a solvent company), or (c) a receiver is appointed over the whole or any part of the assets of the Customer or an administration order is made in respect of the Customer, or (d) the Customer shall otherwise cease trading, or (e) any diligence, distress, execution or other process is levied or enforced against any property of the customer, then in any such event WDM shall ( without prejudice to any other right or remedy available to it ) be entitled to cancel any contract between itself and the Customer or suspend any further deliveries of goods or the provision of any further services under any such contract without any liability to the Customer and if any goods or services have been delivered or supplied but not paid for, the price of such goods and services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
• COPYRIGHT- The Customer shall not submit for use by WDM anything whose use would constitute an unauthorised dealing with copyright material. In the event of any breach of this condition resulting in such an unauthorised dealing, the Customer shall remain liable to pay all sums due to WDM under the relevant contract and shall further indemnify WDM against any loss, costs or expenses attributable to such unauthorised dealing. All copyright and other intellectual property rights in any work created, commissioned or otherwise acquired by WDM in implementation of any contract between WDM and the Customer shall remain with WDM until full payment has been received. For the purposes of these conditions, WORK means and includes any programming, development, graphic design, web design, artistic, literary or dramatic work within the meaning of the (amended) Copyright.
• TITLE - Ownership of any work delivered to the Customer under any contract between WDM and the Customer, or of any other goods delivered under any such contract, shall not pass to the Customer until payment in full of all sums due to WDM under such contract has been made to WDM. The risk of damage to or destruction of any item delivered by WDM to the Customer shall pass to the Customer upon delivery, notwithstanding that ownership of the item has not then passed, and the Customer shall ensure that such item is adequately insured from time of delivery. Intellectual Property shall only pass to the customer when payment has been received in full and a certificate of Assignment of Copyright will be issued to the customer at this time.
• PAYMENT - A non refundable deposit payment will be taken when work begins. Invoicing may be split into agreed phases in the event of lengthy jobs. The final payment will be taken upon completion of finished work and prior to site hand over. Divided payments by standing order may be considered under certain circumstances such as regular consultancy or administrative work. 
• PAYMENT (Maintenance) - Maintenance rates will become effective if one of the following is met (a) the original site has been created and paid for in full. (b) otherwise stated in writing by a WDM representative. Maintenance will be charged out at the current Maintenance Rate and will be charged half hourly. A minimum charge of one half hour will apply. WDM has the right to decide if a job meets a maintenance or design title. If the job meets a design title then the design rate will be applicable.
• PAYMENT (Project Postponement ) - If a project is postponed or cancelled after more than 50% completion by anyone other than Web Design Magic, then the balance of works will be invoiced and then completed at the customers continuation date (if any). If the project is cancelled before 50% completion then the initial non refundable deposit will be retained by Web Design Magic and any 3rd party costs that Web Design Magic occurred during the project. These prices will be calculated at Web Design Magic’s standard design rate based on the hours already spent including any 3rd party costs. Deposit and setup costs are not refundable. Administration costs will also be applicable. Percentage of works completed will be calculated on current hours spent minus current hours quoted. Proof in the form of a project time sheet can be provided to the customer.
• TERMS - All payments must be made before the invoice due date, unless agreed otherwise. Prices quoted by WDM are exclusive of GST which will, where appropriate, be payable by the Customer. Where Hosting (WebCentral and ICO) or iEmail invoices are overdue by 30 days Web Design Magic reserves the right to lock all email facilities; at 60 days the web site and /or service may be closed. At this time a 30 day cancellation period applies during which charges are accumulated; at 90 days legal proceedings may commence. WDM reserves the right to charge accumulating administration fees to any overdue accounts past 90 days and will pass on any charges accumulated by 3^rd parties to the service arrangement.
• HOSTING and 3RD PARTY ACCOUNTS - Managed hosting, dedicated hosting, email accounts and iEmail accounts through 3rd parties such as ICO (AVnet) WebCentral and Vision6 require 30 days notice prior to billing for cancellation. A pro rata invoice will be issued if applicable.  This cancellation period is in line with those imposed by the 3rd parties themselves and is therefore not negotiable. 
• SUB CONTRACTING - WDM may employ any person, company or firm as a sub-contractor for the production or provision of any printed or other item in accordance with any original design or other work produced by WDM for the Customer.
• NON-PAYMENT - Failure by the Customer to meet financial obligations may result in legal proceedings by WDM under which circumstances ALL legal costs and other administrative expenses will be recoverable in full by WDM.
• SEARCH ENGINES - A specific position in the search engine results is not guaranteed. We will make every attempt to obtain a Top Ranking for your keyword phrases, but are not liable for circumstances beyond our control. Such circumstances include the change in policies of the search engines involved, spontaneous drop outs and other anomalies out of our control. We will not index sites that promote hate or discrimination based on race, religion, sex, age, sexual orientation or any other type of grouping. We reserve the right to refuse to promote any site we deem as unacceptable for any reason, without explanation. No retroactive refunds will be made, This service is a monthly, Quarterly or Yearly service. For purposes of this agreement, WDM shall have no responsibility under this agreement during periods when the search engine is not available either for searching or submissions. WDM will not be responsible for any further damages of any kind. The code that we actually use to index your page with the search engines is proprietary even though it is based on your original pages. The information (all codes, HTML, Java all work that has been manually done) may not be sold, used, or transferred another website without our written permission. We will not 'spamdex' your pages into unrelated keyword categories. That means that if your page is the "cheap car insurance" page, we will not index it into the "ford trucks" keyword search page. This kind of indexing is harmful to useful operation of all search engines.
• SUPPORTED BROWSERS - All websites designed by WDM will compatible with the following browsers. While sites will work to a degree on iPhone, iPads and other browsers, full compatibility and custom screen widths are at additional cost. Flash will not work on iPads or iPhone:PC: IE8, IE9, IE10, Safari 5.1.7, Firefox 12, Opera 12.02 & Chrome 22, Mac: Safari 5.1.7, Firefox 12, Opera 12.02, Chrome 22 

SLA Support Terms & Conditions

1.    Definitions

1.1. "Support Fee" shall mean a rate paid by the customer for related support. This fee is paid annually.  The annual fee is $6,760.00 AUD ex GST for 52 hours of service. Unused hours do not roll over into the next term.

1.2. “Additional Support Fee” shall mean a rate paid by the customer for server maintenance and related support over and above the “Support Fee”.  Additional Support Fee’s are sold in blocks of 20 hours.

1.3. “Support” shall mean the response made by Web Design Magic for a particular Support Task.

1.4. “Support Tasks” shall mean the tasks involved in the delivery of support.

1.5. "Term" shall mean the initial (12) twelve month term of Support Agreement after election by customer. The term of this agreement is one year, which can be terminated as per a 30 day cooling off period after signing the agreement. Notice of this termination must be made in writing. The renewal term will automatically start once the term has elapsed unless termination has been received.

1.6. "Renewal Term" shall mean any (12) twelve month term of Support Agreement services elected by customer subsequent to the Term.

1.7. “System” shall mean any software program supported by Web Design Magic. Supported programs remain at the sole discretion of Web Design Magic Pty Ltd.
 
For all of the following, the determination of the appropriate frequency of such actions is at the sole discretion of Web Design Magic Pty Ltd.
 
Furthermore, in all events the final decision regarding the inclusion into or exclusion of services from the Support Agreement and the definition of such services remains at the sole discretion of Web Design Magic Pty Ltd.
 
2.    Services Covered by Support Agreement

Support Agreement where applicable includes:
 

• General Telephone/Email/Fax support
• General HTML Changes
• General Flash Changes
• General Graphic Art Requests
• General Programming Requests
• General Search Engine Optimisation
• General SharePoint Requests
• Consulting Services

3.    Explicitly Not Covered Within the Scope of Support Agreement.

Explicitly Excluded:

·         Server or Computer Maintenance

• Server or Computer Support
• Tasks associated with the running of systems. IE/ Processing orders, loading products
• Off Site Visits
• Complete Website Packages
• Software/License Costs
• Hosting Costs

 
4.    General and Acknowledgement

These Conditions shall apply to all contracts for the sale of goods and services by the Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.

Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and neuter genders and vice versa.

The headings in these Conditions are inserted for convenience only and shall not affect their construction.
Any variation to these Conditions and the Agreement (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.

Anything in this Contract that is required to be ‘agreed in writing’ shall be agreed in writing signed by a director of the Company.

5.    Scope of the Service 

The Company shall provide support services during the service hours. The Company will use its best efforts to respond to the call for support within the response time. The Company also provides preventative maintenance either by arrangement with the customer or which may be performed concurrently with support. In all cases the scope of work is defined in this agreement.

6.    Services performed outside Service Hours 

The Company shall provide support services outside the Service Hours only if requested by the Customer, for which the Customer shall pay the Abnormal Hourly Charge in addition to the Annual Charge. For any support job started before the end of the Service Hours each day, the work carried out in the first hour which continues after the end of the Service Hours shall be regarded as work being provided at the Service Hours but the subsequent hours shall be charged at the Abnormal Hourly Charge as provided herein.

7.    Exclusion from support
 
In addition to any exclusion from the Support Agreement as defined by the “Standard Scope of Work and Exclusions”, the Company’s obligation to provide support services is also contingent upon the Customer’s proper use of all the Equipment or system.

The Company shall not be obligated to furnish support services if:
 

• The Company does not support that product or system;
• The Equipment hosting the system has been subjected to unusual physical or electrical stress;
• The system has been maintained or repaired, or if an attempt to repair or service the system has been made by someone other than the Company’s personnel without prior written approval of the Company (such approval not to be unreasonably withheld);
• The system is either removed from its initial installation location or is reinstalled without the written approval of the Company;
• The system is over 4 years old, unless the Company has agreed in writing to the Customer that it will not be excluded;
• The system or any part of it, in the Company’s reasonable opinion, has reached the end of its useful life; or
• The Customer allows any person to access or tamper with the Company’s software on any system.

If support services are required as a result of the causes stated above, such repairs will be made at the Company’s then prevailing non-contract rates.

8.    Work not included

The maintenance service under this Agreement does not include:

• Installation or maintenance of software;
• Operating supplies or accessories including media such as tapes and disc packs, paint or refinishing the equipment, or furnishing materials for this purpose;
• Electrical work external to the Equipment and other devices not specifically noted as part of this Agreement;
• Verification that the Customer’s software licenses are valid and current. Licensing of the Customer’s software remains the responsibility of the Customer;
• Prevention of any virus or similar problem entering or leaving the Equipment.

 9.    Price and Payment

The Price payable by the Customer shall be exclusive of GST. Payment of the Price and GST at the rate ruling on the date of the Company's invoice shall be due and paid as set out in the Agreement.

Interest on overdue payments shall accrue from the date when the payment becomes due until the date of payment at a rate of 11% per calendar month or part of a calendar month and shall accrue at such a rate after as well as before any judgement. 

The Customer shall indemnify the Company in full all its reasonable administrative and legal costs of recovering overdue payments.

Not withstanding any actions that have or have not been taken, the Company shall be entitled to recover the price plus GST and other damages under the Agreement.
 
10. Renewal

Renewal contracts and invoices will be automatically issued when the contact hours reach 20 hours (for 52 hour contract) or 10 hours (for 20 hour blocks).

11. Level of Effort

99% of the time the support requests will be scheduled to start within 3 working days. Top priority will apply to situations where the system is unavailable.

12. Agreement Hourly Limit

This agreement is for 52 hours per annum.  Support Tasks and times will be logged by the company and available to the customer upon request.

13. Additional Support Fee

Additional hours are available for the agreement and are available in 20 hour blocks. The fee for a 20 hour block is $2,600 AUD ex GST.
 
14. Increasing Charges  

The Company may increase the Annual Charge, Normal & Abnormal Hourly Charges as set out in this Agreement by giving 14 days’ prior written notice to take effect at the end of the notice period. In such an event, the Customer may terminate this Agreement before the end of the said notice period by a written notice to the Company.

15. Access to Equipment

The Customer shall provide, at no charge to the Company:

• Full and free access to the system;
• The opportunity to install the Company’s own software to facilitate this Agreement. Such software remains at all times the property of the Company and will be removed from the system at the termination of this Agreement;
• The opportunity at the convenience of the Company to remove software belonging to the Company.

 16. Confidentiality

All information acquired by the Company relating to the business of the Customer and its customers shall be treated by the Company as confidential (after as well as during this Agreement) and the Company shall not make any use or disclosure of it.

The Company shall take all reasonable steps to protect the confidentiality of such information and require its employees who require access to it for the performance of their duties to enter into written undertakings as to confidentiality, which are consistent with the Company’s obligations under this Agreement and are directly enforceable by the Customer.

17. Suspension and termination

If the Customer fails to make payment in accordance with the Agreement or commits any other material breach or if any distress or execution shall be levied upon any of the Customer's goods or if the Customer offers to make any arrangement with its creditors or if any petition in bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrative receiver or manager shall be appointed over the whole or any part of the Customer's business or assets, the Company may in its absolute discretion and without prejudice to any other rights, which it may have suspend and/or terminate the Agreement without liability upon its part.

18. Force Majeure

The Company shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the duties and/or obligations of the Company in the Agreement being prevented, hindered, delayed or rendered uneconomic by reason of any Force Majeure Circumstances.

In these Conditions "Force Majeure Circumstances" shall mean any act of God, war, riot, strike, lock-out, industrial action, accident, breakdown of plant or machinery, fire, flood, drought, storm, difficulty or increased expense in obtaining materials or transport or other circumstances beyond the reasonable control of the Company.

19. Liability

The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of the Agreement.  Under no circumstances shall the liability of the Company exceed the price payable under this Agreement.

20. Indemnity

The Customer shall indemnify the Company in full including legal costs in respect of any claims by third parties which are occasioned by, or arising from the Company’s performance pursuant to the instructions of the Customer.

21. Third parties

No person other than the Company and the Customer shall acquire any enforceable rights against neither the Company nor the Customer under or in connection with this Agreement.

22. Notices

Any notice required or allowed under this Agreement shall be deemed properly given if mailed postage paid, to the address as stated in the Agreement unless an alternative address of service is agreed in writing by the parties.

23. Non-solicitation of staff

The Customer shall not, during the term of this Agreement and for two years thereafter, directly or indirectly canvas with a view to offering or providing employment to, offer to contract with, or entice to leave any employee of or contractor to the Company engaged in the performance of any part of this Agreement without the prior written consent of the Company.

In giving such a consent, a fee may be payable by the Customer.

24. Invalidity of part of contract

If any part of this Agreement is held to be a violation of any applicable law, statute or regulation, it shall be deemed to be deleted from this Agreement and shall be of no force and effect and this Agreement shall remain in full force and effect as if that part had not originally been contained in the Agreement.

25. Assignability

The parties shall not assign any part of this Contract without the prior written consent of the other party.

26. Waiver

The failure by either party to exercise or enforce any rights conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

27. Law

The Agreement shall in all respects be governed by and construed and interpreted in accordance with the laws of Australia and the parties hereby submit to the exclusive jurisdiction of the Australian Courts. 

28. Web Design Magic Contact Information

Support service is available Monday through Friday 8 a.m. - 4 p.m. AEST.

Phone:         1300 308 210
Fax:              07 5522 1609
E-mail:         [email protected]
Web:             www.webdesignmagic.com.au

WebCentral Hosting Terms and Conditions can be found at www.webcentral.com.au
Avnet (ICO) Hosting Terms and Conditions can be found at www.ico.com.au

Revised July 2012 - Added new browsers to compatibility list

Revised September 201 - Added support SLA terms