Last updated December 30, 2015
1.1. "Account" means the account held with Webefinity by the Customer that is used for billing, contact information and details of Services assigned to the Customer.
1.2. "Customer" means the person or entity who ordered Service(s) from Webefinity.
1.3. "Service", "Service(s)" or "Services" means any product(s) or service(s) the Customer has ordered from Webefinity. This can include, but is not limited to, website hosting, VPS, consulting and software development services. These product(s) and service(s) are identified in full within the "sign up" and "service provision" emails Webefinity sends to the Customer after an order has been placed. The specific details of the Services can be found by logging into the CubeBuild Management Panel.
1.4. "Webefinity" means the retail operations of Webefinity Pty Ltd.
1.5. "CubeBuild" means the business platform software developed by Webefinity Pty Ltd.
1.6. "Cubebuild Management Panel" refers to Webefinity's customer account, billing and management portal available via http://www.cubebuild.com/.
3.1. The Customer agrees to a month to -month contract term for Services unless otherwise stated in the Service offering (eg. domain names, SSL certificates, special Services with an agreed term), or otherwise agreed in writing. The month to month contract for Services is automatically renewed each month in perpetuity subject to cancellation by the Customer as per Section 13 of this agreement.
3.2. Monthly services are established as part, thereof, signifying the beginning of a new month commitment until the end of that monthly period.
4. Service, Marketing and Promotional Emails
4.1. The Customer agrees to receive emails directly relating to the Service(s) provided, as well as marketing and promotional emails from Webefinity to the email address registered to their account. The Customer can unsubscribe from marketing and promotional emails only, by contacting Webefinity.
4.3. If the Customer does not want to receive these mandated service-specific emails and/or SMS messages (where applicable), they are required to cancel all active Services and close their Account in accordance with Section 13 of this policy. The Customer may, however, opt-out from receiving marketing and promotional emails at any time.
5. Availability of Services
5.1. While Webefinity will endeavour to provide continuous availability of all Services to the Customer, Webefinity will not be liable for any Service interruptions or down time that is not covered by a Service Level Agreement.
5.2. Scheduled maintenance will be performed at a time which is deemed suitable by Webefinity which has the least noticeable impact on the Customer, and should it require Services to be offline for greather than thirty (30) minutes, Webefinity will post details of the scheduled maintenance at least two (2) days prior.
5.3. Unscheduled maintenance will be performed as required by Webefinity, and should Services be offline for greater than thirty (30) minutes, Webefinity will post details of the maintenance and any updates until it has been completed.
6. Limitation of Liability
6.1. Webefinity shall not be liable to the Customer for harm caused by or related to the Customer's Service or inability to utilise the Service unless caused by gross negligence or wilful misconduct.
6.2. Neither Party shall be liable to the other for lost profits, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known.
6.3. Notwithstanding anything else in this agreement, the maxiumum aggregate liability that Webefinity, any of its employees, agents or affiliates, under any theory of law, shall no exceed a payment in excess of the amount paid by the Customer for the Service in question for the six months prior to the occurrence of the event(s) giving rise to the claim.
7. Customer General Warranties and Undertakings
7.1. The Customer warrants that any information supplied for hte purpose of creating an Account with Webefinity, including but not limited to, firstname, last name, address, telephone number and email address is true and correct, and will be kept up to date via the CubeBuild Managment Panel.
7.2. The Customer warrants that they will keep any passwords or sensitive information used with the Service in a secure location and the information is not to be shared with any other party.
7.3. The Customer warrants that at the time of entering into this agreement they are not relying on any representation made by Webefinity which has not expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Webefinity.
7.4. The Customer warrants that all due care has been taken to ensure data integrity before it has been uploaded to Webefinity's servers. This includes an undertaking that the Customer will conduct the appropriate virus and malware scans on the data before it is uploaded to Webefinity's servers.
7.5. The Customer agrees that they are solely responsible for dealing with cases of unauthorised third parties accessing their Account and/or Service(s). These matters should be referred to the Australian Federal Police for investigation as soon as possible.
8. Webefinity General Warranties and Undertakings
8.1. Webefinity accepts liability for the supply of the Service to the Customer to the extent provided in this agreement.
8.2. Webefinity does not warrant that:
- The Services provided within this agreement will be uninterrupted or error free;
- The Services will meet your requirements, other than as expressly set out in this agreement;
- The Services will not be subjected to external hacking attempts, viruses, worms, denail of service attacks or other persons gaining unauthorised access to the Service or internal Webefinity systems.
8.3. Webefinity does not make or give any 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.
8.4. No oral or written ifnormation or advice given by Webefinity or its resellers, agents, representatives or employees, to the Customer, shall create a warranty or in any way increase the scope of the express warranties hereby given, and the Customer should not rely on any such information or advice.
8.5. In no event will Webefinity be liable to the Customer for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
8.6. Third party services engaged by the client including but not limited to SMS, email and workflow management tools are done so at the Customers own undertaking. Webefinity does not provide any express or implied warranty on the quality of their product(s) nor the outcomes expected and is under no obligation to extend support for externally managed or purchased products.
9. Fees and Credit Management
9.1. In relation to fees for Services:
- Fees for Services ordered by the Customer shall begin on the date of teh initial order and shall be prorated to include all days until the first day of the next month, and the chosen billing cycle in advance. This may be monthly, quarterly, semi-annually or annually.
- The first day of the month will serve as the anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits, unless the Service only allows annual or bienially billing cycles.
- Fees are due in advance of the billing cycle and will be invoiced to the Customer ten (10) days prior to the due date. If a credit card is stored in the Account, it will be charged three (3) days prior to the due date to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.
9.2. In relation to fees for upgrades to Services:
- Upgrades ordered by the Customer on the billing anniversary date will be billed for a full cycle and will continue each cycle on the anniversary date, unless the Services only allows annual or biennially billing cycles.
- Upgrades ordered by the Customer after the billing anniversary date will be proprated to the next anniversary date at the full monthly cost. Future fees will appear as the new plan from your existing anniversary billing date.
- Fees for upgrades will be payable within seven (7) days of the upgrade taking place. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.
- Additional fees may be payable for upgrades where manual work is required by Webefinity to process the upgrade request.
9.3. In relation ot fees for downgrades to Services:
- Downgrades will be processed when the request is received by Webefinity from the Customer unless otherwise specified in the request.
- A credit will be issued to the Customer's Accout as accout credit for the difference of any prorated pre-paid amount minus the cost of the new plan prorated on the chosen cycle.
- A $10 AUD administration fee may be charged for a downgrade request at Webefinity's sole discretion. Additional fees may be payable for downgrades where manual work is required by Webefinity to process the downgrade request.
9.4. Fees for one-off Services including, but not limited to, dedicated IP addresses, SSL certificates, consulting services and software development services, are due within seven (7) days of the invoice being issued.
9.5. All published prices are exclusive of any government taxes and charges unless otherwise noted.
9.6. Any unpaid invoices on the Customer's Account must be paid in full before new Services will be provisioned.
9.7. Failure to pay any fees may result in the account being referred to an external collection agency, which may include interest (calculated daily) and collection costs.
9.8. Invoices that are more than three (3) days past the due date will automatically incur a late payment fee of $10 AUD which will be payable on top of the invoice amount.
9.9. Services with unpaid invoices htat are more than seven (7) days past the due date will be automatically suspended, and a reconnection fee of $10 AUD in addition to any outstanding fees may apply to have the service restored.
9.10. Services with unpaid invoices that are not paid in full within fourteen (14) days of the due date will be automatically terminated.
10. Payment Method Management
10.1. In the event a new Service is ordered by a new or existing Customer and payment is made during the order process using credit card, this credit card information may be stored against the Customers CubeBuild Managment Panel account.
10.2. Where a credit card number is recorded on file and the default payment of the Customers Service(s) is credit card, this may be used for the automated payment of due invoices. In such cases, payments will typically be taken three (3) days prior to the due date of the invoice.
10.3. Managment of credit card payment can be done by contacting Webefinity, or via the CubeBuild Management Panel when this feature is made available. This includes modifying or removing stored credit card information.
11.1 The following Services are not eligible for a refund if the Service has been successfully provisioned by one of Webefinity's suppliers:
- Domain names;
- SSL Certificates;
- Software licenses.
11.2. A full refund will be provided to either account credit or returned to the original payment method, if the order was placed within forty-five (45) days of the date that the refund was requested for any of the following Services:
- Any shared web hosting Service;
- Any VPS hosting Service.
11.3. A pro rata refund will be provided to account credit only, minus a $10 AUD administration fee, if the refund request was made more than forty-five (45) days after the order was placed for any of the following services:
- Any shared web hosting Service;
- Any VPS hosting Service.
11.4. The Customer will not be entitled to a refund if any of Webefinity's Terms, Policies and Agreements have been breached by the Customer.
11.5. All other refunds will be processed at the sole discretion of Webefinity Management, in-line with the Australian Competition & Consumer Commission's published policies and guidelines. More information can be found at http://www.accc.gov.au/consuers/consumer-rights-guarantees.
12. Suspension and Termination of Services
12.1. Webefinity may suspend or terminate Services if:
- The Customer is found to be in breach of any formal policy including but not limited to the Terms of Service, Acceptable Use Policy or Customer Service Policy;
- The Customer has become insolvent or bankrupt;
- The Customer has unpaid invoices as per Section 9 of this agreement.
12.2. Webefinity may decide at its sole discretion to advise a Customer that their Account and/or Service(s) will be terminated by giving thirty (30) days written notice, and any applicable refunds will be processed as per Section 11.5 of this agreement.
12.3. If a Customer's Account is closed for any reason, the Customer must pay all outstanding invoices by the due dates.
12.4. If a web hosting or VPS Service is suspended or terminated for any reason, Webefinity is under no obligation to provide the Customer with a copy of any data associated with the Service. Webefinity may provide the customer with a backup of the data, if it is available, for a fee of $200 AUD.
13.1. The Customer can request cancellation of their Account or any Service(s) with Webefinity for any reason by logging in to the CubeBuild Management Panel and submitting a cancellation request.
13.2. Any pre-paid fees for Services past the current billing month will be refunded in accordance with Section 11 of this agreement once a refund request has been made by the Customer. This can only be done by submitting an eTicket through the CubeBuild Management Panel.
13.3. The Customer agrees to pay any outstanding invoices upon cancellation of their Services.
13.4. If the Customer requests cancellation of a Service after the invoice for the renewal of the Service has been paid, a refund will be issued in accordance with Section 11 of this agreement.
14. Data Management
14.1. It is the Customer's sole responsibility to maintain regular off-site backups of their data. The Customer will not hold Webefinity liable for incomplete, out of date, corrupt or otherwise incomplete data recovered from backups and archives.
14.2. With regards to shared CubeBuild web hosting Services, Webefinity makes every reasonable effort to backup and archive the Customer's data on a regular basis for the purpose of disaster recovery.
14.3. In the event of hard disk failure or data corruption of a shared CubeBuild web hosting server, Webefinity will restore data from the last known verified archive. If all backup and archived data appears to be corrupt, the Customer should be prepared to upload all of their data to their Service from their own copy or an off-site backup.
14.4. Webefinity takes automatic system backups of all shared CubeBuild web hosting Services seven (7) times a week and will also retain a monthly rotation of these backups.
14.5. If the Customer requires Webefinity to supply a backup of their data for an active shared CubeBuild web hosting Service, for any reason or purpose that is not the direct fault of Webefinity, a fee of $50 AUD per Service will be payable by the Customer before that data will be made available. Services in a suspended or terminated state within the CubeBuild Management Panel are not considered an active Service.
14.6. Webefinity is under no obligation to maintain a backup of the Customer's data following the cancellation of the Service by the Customer nor by the result of Service termination.
14.7. Webefinity does not take automated system backups of Virtual Private Server (VPS) Services or any other Service unless explicitly stated.
14.8. Webefinity holds no reponsibility for any issues which arise during the use of third party services bundled with CubeBuild.
15.1. Webefinity may amend our Terms of Service at any time. At all times Webefinity will make available the current terms for client review via our website. Changes to this agreement other than price changes will become effective upon publication to our website, and furthermore, continued use of the Service(s) constitutes acceptance of the amended terms. If you do not wish to accept the amended terms, you may request cancellation of your Service(s) in-line with our Cancellation Policy as per Section 13 of this agreement.
15.2. All Webefinity Terms, Policies and Agreements are available for review from our website at any time.
16. Use of Identity
16.1. The Customer agrees to use the Webefinity logo, company information and related services in accordance with approved marketing guidelines.
16.2. Webefinity agrees not to use a Customer name, logos or information without prior written consent of the Customer.
17. Entire Agreement
17.1. These terms and conditions constitue the entire agreement between Webefinity and the Customer, and it supersedes all prior oral or written agreements, understandings and representations.
18. Governing Law
18.1. The Customer agrees to abide by all local, state and federal laws pursuant to the Services delivered by Webefinity.
18.2. The Customer agrees that these terms and conditions are governed by the laws of Victoria, Australia, and agrees to the exclusive jurisdiction of the Courts of that state.