Trading Terms

 

  • 1. PARTIES:
  • The Service Provider: Expresswebsites Pty. Ltd T/as expresswebsites.com.au (ACN 120 790 669)
  • The Client: __
  • 2. DEFINITIONS
    • 2.1. The Service Provider is Expresswebsites Pty. Ltd T/as expresswebsites.com.au (ACN 120 790 669) of PO BOX 380 Boronia VIC 3155.
    • 2.2. The Client is the party as described above and includes companies, trusts, officers, servants or agents who provide instructions on behalf of the Client to the Service Provider.
    • 2.3. The Guarantor is the person(s), or entity, who agrees to be liable for the debts of the Client.
    • 2.4. The Order shall be defined as any request for the provision of Services by the Client with the Service Provider which has been accepted by the Service Provider.
    • 2.5. The Services are all website and domain hosting and related services provided by the Service Provider, including any advice or recommendations.
    • 2.6. The Price is the amount invoiced for the Services provided.
    • 2.7. Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
    • 2.8. Invoices include invoices for Services provided.
    • 2.9. Major failure is Services that are unsafe and/or substantially unfit for normal purposes and can not reasonably be made fit within a reasonable time.
  • 3. GENERAL
    • 3.1. These Terms and Conditions together with the Service Provider's written or verbal quotation, Credit Application Form, Account Set Up Request Form, Service Agreement and Agreed Use form this Agreement.
    • 3.2. Any Order requested by the Client is deemed to be an Order incorporating these Terms and Conditions notwithstanding any inconsistencies which may be introduced in the Client Order or acceptance unless expressly agreed to by the Service Provider in writing. In the event that an inconsistency exists and/or arises it is acknowledged between the parties that these Terms and Conditions will prevail.
    • 3.3. No subsequent correspondence or document or discussion shall modify or otherwise vary these Terms and Conditions unless such variation is in writing and signed by the Service Provider.
    • 3.4. The Terms and Conditions are binding on the Client, his heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
    • 3.5. In these Terms and Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
    • 3.6. Where more than one Client completes this Agreement each shall be liable jointly and severally.
    • 3.7. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these Terms and Conditions.
    • 3.8. The Service Provider may license or sub-contract all or any part of its rights and obligations without the Client's consent but the Service Provider acknowledges that it remains at all times liable to the Client.
    • 3.9. The failure by the Service Provider to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Service Provider's right to subsequently enforce that provision.
    • 3.10. The Client acknowledges that the Service Provider may use these Terms and Conditions on its website and that it is the responsibility of the Client to regularly check the Service Provider's website for any amendments. The Service Provider may notify the Client of any amendments by e-mail. In this event, the Terms and Conditions on the Service Provider's website shall apply to any future dealings as between the parties and the Client is deemed to have notice of any such Terms and Conditions and/or amendments.
  • 4. PRICE
    • 4.1. At the Service Provider's sole discretion the Price shall be either:
      • 4.1.1. As detailed on invoices provided by the Service Provider to the Client in respect of Services provided; or
      • 4.1.2. The Service Provider's quoted Price in writing (subject to clause 4.2).
    • 4.2. The Service Provider reserves the right to change the Price in the event of a variation to the Client's Order, and notice will be provided in writing by the Service Provider within a reasonable time.
  • 5. PROVISION OF SERVICES
    • 5.1. The Service Provider reserves their right to:
      • 5.1.1. Decline requests for the provision of any Services requested by the Client.
      • 5.1.2. Cancel or postpone the provision of any Services or appointments within a reasonable time.
    • 5.2. Unless specified by the Service Provider to the contrary in the Order, the Service Provider does not warrant that it will be capable of providing the Services at specific times requested by the Client during the term of this Agreement.
    • 5.3. In the discharge of its duties, the supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Services provided.
    • 5.4. Nothing in the above clause shall effect the Supplier's right to exercise it's own judgement and to utilise its skills as its considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
    • 5.5. Subject to otherwise complying with its obligations under this Agreement, the Service Provider shall exercise its independent discretion as to its most appropriate and effective manner of providing the Services and of satisfying the Client's expectations of such Services.
    • 5.6. The Service Provider may agree to provide, on request from the Client, additional Services not included or specifically excluded in the Quotation/Order. In this event, the Service Provider shall be entitled to make an additional charge. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits and/or appointments by the Client after provision of the Services at the request of the Client.
  • 6. WARRANTY
    • 6.1. The Service Provider warrants that the rights and remedies to the Client in this Agreement for warranty against defects are in addition to other rights and remedies of the Client under any applicable Law in relation to the Services to which the warranty relates.
    • 6.2. The Supplier warrants to deliver the Produce to the location identified by the Customer in the same condition that the Produce where provided to the Supplier. If the Produce are not so delivered, which becomes apparent and is reported to the Supplier within seven (7) days of the provision of the Services (time being of the essence) then the Supplier will (at the Supplier's sole discretion) provide the Services again at no cost or otherwise cover the cost of having the Services provided again.
    • 6.3. For Service Provider where the Client has complied with the conditions of warranty, the Service Provider's liability is limited to re-delivery of the Client's Order.
    • 6.4. If the Client is in default of any payment to the Service Provider after a request in writing has been made, all warranties shall cease and the Service Provider shall thereafter in no circumstances be liable under the terms of the warranty.
    • Claims made under Warranty
    • 6.5. Subject to clause 12.2 of this Agreement claims for warranty should be made in one of the following ways:
      • 6.5.1. The Client must send the claim in writing together with proof of purchase to the Service Provider's business address stated in clause 2.1 of this Agreement;
      • 6.5.2. The Customer must email the claim together with the proof or purchase to the Supplier by completing the e-mail window located on the Service Provider's web address at the following link http://expresswebsites.com.au/contact-us.html
      • 6.5.3. The Client must contact the Service Provider on the Service Provider's business number (03) 9763 1899.
  • 7. PAYMENT POLICY
    • 7.1. Any reference to Client shall include all Clients, unless it refers to a specific group of Clients.
    • 7.2. Clients must make full payment to the Service Provider within seven (7) days from the date of issue of invoice(s) for the Services.
  • 8. GOODS AND SERVICES TAX
    • 8.1. GST refers to Goods and Services tax under the Goods and Services Act 1999 ("GST Act") and terms used herein have the meanings contained within the GST Act.
    • 8.2. It is agreed between the Client and the Service Provider that the consideration for the Service Provider expressed in this Agreement is exclusive of the Service Provider's liability of GST.
      • 8.2.1. On sale:
        • 8.2.1.1. The Client will pay to the Service Provider, in addition to the total purchase Price, the amount payable by the Service Provider of GST on the taxable supply made by the Service Provider under this Agreement;
        • 8.2.1.2. The Service Provider shall deliver to the Client a Tax Invoice for the supply in a form which complies with the GST Act and Regulations.
  • 9. DISHONOUR OF CHEQUE
    • 9.1. If any cheque issued by the Client or by any third party in payment of the Price is dishonoured:
      • 9.1.1. The Service Provider may refuse to supply any further Services until satisfactory payment is received in full, including bank fees and charges;
      • 9.1.2. The Service Provider is entitled to treat the dishonour of the Client's cheque as a repudiation of this Agreement and to elect between terminating this Agreement or affirming this Agreement, and in each case claiming and recovering compensation for loss or damage suffered from the Client.
      • 9.1.3. The Client may be liable for a dishonoured cheque fee of $30.00.
  • 10. DEFAULT
    • 10.1. Invoices issued by the Service Provider shall be due and payable within seven (7) days of the date of issue ("Default Date"). Without prejudice to any other rights of the Service Provider, the Client may be charged account keeping fees of $30.00 monthly on any payment in arrears.
    • 10.2. Without prejudice to any other rights of the Service Provider, the Client may be charged a $30.00 administration fee for any declined or dishonoured payment and the date the payment is declined can be treated as the Default Date.
    • 10.3. If the Service Provider does not receive the Outstanding Balance for the provision of Services on or before the Default Date, the Service Provider may, without prejudice to any other remedy it may have, forward the Client's outstanding account to a debt collection agency for further action. The Client acknowledges and agrees that:
      • 10.3.1. After the Default Date, the Outstanding Balance shall include, but not limited to, all applicable fees and charges under this Agreement;
      • 10.3.2. In the event of the Client being in default of the obligation to pay and the overdue account is then referred to a debt collection agency, or law firm for collection the commission payable and legal costs incurred on an indemnity basis shall be added to the amount outstanding and form part of the debt and in the event where the collection agency charges commission on a contingency basis the commission shall be calculated as if the agency has achieved one hundred percentum (100%) and shall be added to the debt and the legal costs, whether incurred directly or by the agency shall be calculated on an indemnity basis and added to and form part of the debt and the total shall be treated as a liquidated demand.
  • 11. RISK AND LIABILITY
    • 11.1. The Client will ensure when engaging the Service Provider that there is sufficient information to enable the Service Provider to execute the Order.
    • 11.2. The Service Provider takes no responsibility if the specifications are wrong or inaccurate and the Client will be liable for the expenses incurred by the Service Provider for any work required to rectify the Order.
    • 11.3. The Client is responsible for ensuring that the Service Provider is made aware of any special requirements pertaining to the Order and that the Service Provider relies upon the integrity of the information supplied to it.
    • 11.4. The Service Provider takes no responsibility and will not be liable for any damages or costs resulting in the Services being deficient as a consequence of insufficient information provided by the Client.
    • 11.5. The Service Provider takes no responsibility for representations made in relation to the Services or any delay in the delivery of the Services due to a third party.
    • 11.6. The Service Provider does not represent that it will carry out any Services unless it is included in the Account Set Up Request form.
    • 11.7. The Client acknowledges that the Service Provider shall not be liable for and the Client releases the Service Provider from:
      • 11.7.1. Any claims in respect of faulty or defective design of any Services provided;
      • 11.7.2. Any loss incurred as a result of delay, or failure to provide the Services or to observe any of these conditions due to an event of force majeure, being any cause or circumstances beyond the Service Provider's reasonable control.
      • 11.7.3. Financial injury, loss or damage or for consequential loss or damage of any kind arising out of supply, layout, assembly, installation or operation of Services which do not amount to a major failure.
    • 11.8. Except as provided in the Terms and Conditions all express and implied warranties, guarantees and conditions under statue or general law as to merchantable quality, suitability or fitness of the Services for any purpose is expressly excluded.
  • 12. TERMINATION AND CANCELLATION
    • Cancellation by the Service Provider
    • 12.1. The Service Provider may cancel any Order to which these Terms and Conditions apply or cancel provision of Services at any time before the scheduled hosting. On giving such notice the Service Provider shall repay to the Client any sums paid in respect of the Price. The Service Provider shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
    • 12.2. Without prejudice to the Service Provider's other remedies at law, the Service Provider shall be entitled to cancel all or any part of any Order of the Client which remains unfulfilled and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable in the event that:
      • 12.2.1. Any money payable to the Service Provider becomes overdue; or
      • 12.2.2. The Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • 12.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
    • Cancellation by Client
    • 12.3. Any Order cannot be cancelled by the Client unless expressly agreed to by the Service Provider in writing.
    • 12.4. If the Client places an Order with the Service Provider and the Service Provider engages with a third party Service Provider to meet the Client's request, the Client shall be liable for the Price of the provision of Services ordered if the Client cancels the Order and the Services have already been executed.
    • 12.5. The Client agrees that in the event of a Client cancellation of the Order or any other Services as requested from the Service Provider, the Client shall be liable for any monies owing to the Service Provider for the Services provided to the date of the cancellation.
    • 12.6. The Client agrees that in the event of a Client cancellation of the Order, any prepay based fees or set-up fees are non-refundable.
  • 13. SET-OFF
    • 13.1. The Client shall have no right of set-off in any suit, claim or proceeding brought by the Service Provider against the Client for default in payment.
    • 13.2. The Client acknowledges that the Service Provider can produce this clause in bar of any proceeding for set-off.
  • 14. INSURANCE
    • 14.1. The Client is responsible to effect whatever insurance cover he requires at his own expense.
  • 15. JURISDICTION
    • 15.1. This Agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the appropriate courts of Victoria.
  • 16. PRIVACY ACT 1988
    • 16.1. The Client and/or Guarantor/s agree for the Service Provider to obtain from a credit reporting agency a credit report containing personal credit information about the Client and/or Guarantor/s in relation to credit provided by the Service Provider.
    • 16.2. The Client and/or the Guarantor/s agree that the Service Provider may exchange information about the Client and/or the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency to assess an application by the Client, to notify other credit providers of a default by the Client, to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers or to assess the credit worthiness of the Client and/or the Guarantor/s.
    • 16.3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (S. 18K(1)(h) Privacy Act 1988).
  • 17. DISPUTES/CLAIMS
    • 17.1. If the Client does not advise the Service Provider of any dispute regarding the services provided in writing within thirty (30) days of the Services being provided for the Client:
      • 17.1.1. The Client is deemed to have accepted the Services and is deemed to agree that Services comply with terms of contract made pursuant to the Terms and Conditions;
      • 17.1.2. The Client releases and discharges the Service Provider from and against any claims, actions, loss or liability relating to any dispute of the Services or any failure of the Services to comply with the terms of contract made pursuant to these Terms and Conditions.
  • 18. ENTIRE AGREEMENT
    • 18.1. The Terms and Conditions set out in this Agreement constitute the whole Agreement made between the Client and the Service Provider.
    • 18.2. The Service Provider agrees to deal with the Client's information in a confidential manner and in consistency with the relevant laws relating to internet privacy to an extent as it can be reasonably expected. Accordingly, the Service Provider hereby makes the Client aware of the associated risks in transmitting information across internet and such information being accessed by a third party (i.e. hacking) which is beyond Service Provider's control.
      • 18.2.1. As a result thereof, by accepting the Services from Service Provider the Client is releasing Service Provider from any liability whatsoever arising from serious invasion of privacy resulting from the internet usage associated risks such as hacking.
    • 18.3. This Agreement can only be amended in writing signed by each of the parties.
    • 18.4. All prior discussions and negotiations are merged within this document and the Service Provider expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
    • 18.5. Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.
  • I/We understand and agree to be bound by the Terms and Conditions set out herein.

Modified 29-10-2015