Pixalcom Terms & Conditions

Website Terms and Conditions

1. Packages. The following Packages are available for purchase from Pixalcom:

(a) The Professional Starter Package for $1,395 (Australian Dollars), the Package shall include:

(i) a single page business web site designed by Pixalcom

(iii) up to ten (10) email addresses;

(iv) search engine optimisation; and

(v) the domain name of your choice (subject to its availability) including domain registration;

(vi) web site hosting by Pixalcom or Nominee;

(vii) monthly email tracking reports;

(viii) 1024 MB monthly transfers;

(ix) hourly web site backup;

(x) CMS image gallery;

(x) CMS document library;

(xi) CMS edit text and images;

(xii) CMS page clone; and

(xiii) CMS content history.

(b) The Premium Package for $1,800 (Australia Dollars), the Package shall include:

(i) a double page business web site designed by Pixalcom;

(ii) up to fifteen (15) email addresses;

(iii) management of search engine optimisation;

(iv) those features referred to in paragraphs 1(a) (iv) to (xiii) inclusive.

(i) a five (5) page business web site designed by Pixalcom;

(ii) up to twenty (20) email addresses;

(iii) Form mail;

(iv) a tracking system;

(v) automatic CMS updates; and

(vi) those features referred to in paragraphs 1(b) (iii) and (iv).

2. Additional Features. The following Additional Features are available as add ons to the Packages or other existing web sites:

(a) Audio. To add sound to a web site;

(b) Calendar of Events. To provide a calendar of event for the Client to update as required;

(d) Form Mail. Customised form mail for the Client Web Site;

(e) iphone Web Site. To have a version of the Client Web Site optimised for use on the iphone.

(f) Latest News. To have an RSS feed with a tag on a web site to create news articles.

(g) Mailouts. To conduct mailout campaigns.

(h) Message Board. To create interactive messages in real time.

(i) Online Shop. To sell products and/or services online.

(j) Password Protected Area. To restrict access by password to special areas on a web site.

(k) Search Tool. To have an advanced search tool within a website.

(l) Slide Show. Similar to a picture gallery but with options for flash and video.

(m) Special Map Feature. An advanced map feature to easily find your location.

(n) Surveys. To assemble multi-page surveys with a variety of different questions and answers.

3. Services. The following Services are available to be utilised for the Packages or other existing web sites:

(a) Art Services. A full range of art and design services including logos, graphics, fonts and stationery and marketing materials to match;

(b) Copywriting Services. To have the headings, sub-headings and text content written for the Client;

(d) Maintenance Service. To have your website maintained and regularly updated.

(e) Alterations to Existing Web Site. Amendments and upgrading of an existing web site.

(f) SSL certificate authentication. full-authentication and domain-authentication

4. Independent Contractor. The Client acknowledges and agrees that he has engaged Pixalcom as an independent contractor to undertake the work and provide such services as are referred to in the Accepted Quote and which may include any one or more of the following items:

(a) design of the Client Web Site.

(b) Additional Features (if any).

In addition to the work and services referred to in the Accepted Quote, if Pixalcom designs the Client Web Site, Pixalcom shall upload the Client Website on the World Wide Web and shall publicise it and the domain name to Google (all of which work and services to be provided by Pixalcom to the Client shall hereinafter be referred to as “the Work”).

5. Price. Notwithstanding anything contained on the Pixalcom Web Site, the purchase price payable by the Client to Pixalcom for the Work shall be the price payable by the Client to Pixalcom pursuant to the Accepted Quote (“the Price”).

6. Agreement. The Client hereby acknowledges and agrees that the quote provided by Pixalcom to the Client was made subject to and conditional upon these terms and conditions and that the Accepted Quote was accepted by the Client subject to and conditional upon these terms and conditions all of which written documents collectively constitute the agreement between Pixalcom and the Client (‘the Agreement”)

7. Payments. The Price shall be paid by the Client to Pixalcom as follows:

(a) If the Price does not exceed $1,500 (Australian Dollars), the whole amount shall be paid in advance.

(b) If the Price exceeds $1,500 (Australian Dollars), then:

(i) A sum equivalent to fifty per cent (50%) of the Price shall be paid upon acceptance by the Client of the quote; and

(ii) The balance shall be paid at the time that Pixalcom advises the Client that the Work has been completed.

(c) If the initial quoted price is an estimate based on estimated time calculated at the Hourly Rate, with the Price to be calculated when the actual time is known, then:

(i) A sum equivalent to Fifty per cent (50%) of the written estimate shall be paid upon acceptance by the Client of the quote; and

(ii) The balance of the final revised Price remaining unpaid shall be paid at the time Pixalcom advises the Client that the Work has been completed.

(d) All payments made to Pixalcom must be made via Paypal as provided for on the Pixalcom Web Site or such other method previously approved by Pixalcom in writing.

(e) A payment shall not be deemed to have been made to Pixalcom until Pixalcom receives the payment as cleared funds in its Paypal account or bank account, as the case may be. If any payment is not so received by Pixalcom, Pixalcom may suspend the Work or any part thereof until payment in cleared funds has been received.

8. Client Information. Unless the parties have otherwise agreed, the Client shall be responsible to supply in a timely manner all the content for the Client Web Site, details of other Additional Features and/or Services as the Client requires and to supply same in a timely manner, including as relevant:

(a) the business logo for the Client Web Site;

(b) for each page of the Client Web Site, the html headings, sub-headings and text, the photographs and graphic images and the links that the Client wishes to be included;

(d) the Services, if any, required;

(e) all other information that Pixalcom may require; and

(f) in the case of alterations to an existing site, all the above information contained in paragraphs 10 (a) to (e) inclusive to the extent that they may apply plus a detailed description of the alterations to be made.

All content will be supplied in such format as Pixalcom may from time to time specify.

9. Changes and Extras. If the Client requires work additional to the Work or changes any aspect of the Work, the Client shall be responsible to pay any additional time incurred at the Hourly Rate together with any disbursements and out-of-pocket expenses incurred by Pixalcom.

10. Removal of Content. If any content is provided by the Client for inclusion on the Client Website or is already on the Client Web Site (whether previously included by Pixalcom or not) and such content violates the Policy Guidelines, Pixalcom may refuse to include such content on the Client Web Site or may remove it, as the case may be. The cost of restoring the Client Web Site shall be at the Client’s cost in all respects.

11. Client Authorisation. If the Client engages Pixalcom to alter a web site hosted by a third party, the Client hereby authorises Pixalcom to access the Client’s account and authorises the third party to provide Pixalcom with full access and write permission for the Client’s web page directory, cgi-bin directory and all other directories and programs as Pixalcom may need to access to undertake the Work. The Client further authorises Pixalcom to publicise the amended web site to Google.

12. Client Entitlement to Consult. The Client shall be entitled to consult with Pixalcom by email or by telephone to assist the Client to understand and use the Client Web Site or the Additional Features or Services provided. The first two (2) hours, in aggregate, in which Pixalcom is engaged in such consultation shall be free of charge and thereafter the Client shall be charged at the Hourly Rate.

13. Completion. Pixalcom shall use its best endeavours to complete the Work expeditiously and to assist in these endeavours, the Client will work with Pixalcom in good faith and in a timely manner.

14. Liability. All work done and services performed and product provided under the Agreement are done, performed and provided "as is" and without warranty against any failure of performance including, without limitation, any failure because of computer hardware or communication systems. Except as may be expressly provided in the Agreement, Pixalcom does not make and expressly disclaims and the Client hereby waives all reliance on every representation and warranty, arising by law or otherwise, regarding the Work or any part thereof, including implied warranties of merchantability, fitness for a particular purpose, non-infringement or arising from course of dealing, course of performance or usage in trade.

15. Interruption of Service. Pixalcom, Nominee and their respective contractors suppliers, directors and employees and each of them shall not be liable for any temporary delay, outages or interruptions caused to the Client Web Site for any reason whatsoever and further shall not be liable for any delay or failure to perform its obligations under the Agreement.

16. Limitations. Pixalcom, Nominee and their respective contractors suppliers, directors and employees and each of them shall not for any reason be liable for unauthorized access to, or alteration, theft or destruction of information distributed or made available for distribution via the hosting service provided by Pixalcom or Nominee through accident, fraudulent means or devices. Neither will they or each of them be liable with respect to Pixalcom’s obligations under the Agreement or Nominee’ obligations or otherwise for consequential, exemplary, special, incidental, or punitive damages even if they or any one or more of them have been advised of the possibility of these damages. Their liability and the liability of each of them to the Client for any reason and upon any cause of action is limited to the amount you actually paid to Pixalcom under the Agreement during the Term and this limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The Price and Annual Fee set by Pixalcom under the Agreement has been and will continue to be based upon this allocation of risk. Accordingly, the Client hereby Pixalcom, Nominee and their respective contractors suppliers, directors and employees and each of them from any and all obligations, liabilities, and claims in excess of the limitation stated in this paragraph.

17. Indemnification. The Client hereby agrees to releases and hold harmless and indemnify Pixalcom, its contractors suppliers, directors and employees and each of them against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by them and each of them arising out of or relating to the Clients breach of any term, condition, representation or warranty of the Agreement or provision of the Policy Guidelines;

18. Policy Guidelines. Pixalcom may publish a set of policy guidelines on the Pixalcom Web Site and may from time to time amend such guidelines. Pixalcom shall advise the Client when the policy guidelines are on the Pixalcom Web Site and thereafter each time that Pixalcom makes amendments thereto. The Client hereby acknowledges and agrees that it shall strictly abide by the policy guidelines including any amendments thereto.

19. Hosting. Pixalcom shall host or cause Nominee to host the Client Website on a best endeavours basis and for this purpose has entered into a service level agreement with Nominee.

20. Client Warranties. The Client hereby acknowledges warrants and agrees:

(a) Read and Understood. That prior to accepting any quote or estimate from Pixalcom for the Work, the Client has read and understood these terms and conditions.

(b) Legal Capacity. That the Client has the full legal capacity to agree to these terms and conditions and, in the case that the Client is an individual, that he is over the age of eighteen (18) years.

(c) Electronic Commerce Laws. That the Client shall be solely responsible for complying with all relevant laws and shall be solely responsible for all taxes and tariffs applicable in any way to the Client Web Site and any work or services undertaken by Pixalcom in respect thereto.

(d) Compliance with Laws. That the Client shall comply with all applicable laws and regulations.

(e) Copyright and Trademark. That every element of business logos, headings, sub-headings, text, graphics, artworks, images, photographs, designs or trademarks are owned by the Client or that the Client has permission from the rightful owner, in each case, to use such elements in the Client Web Site or other web site as the case may be.

(f) Identification. Pixalcom may during the Term and any Extended Term and free of any obligation to pay compensation to the Client, use the Client’s name, his business name, domain name and website address and identify the Client or the Client’s business as a Pixalcom client in advertising, publicity, or similar materials distributed or displayed to prospective clients and may maintain a link or links on the Pixalcom Web Site to the Client Web Site and vice versa.

(g) Non-Assignment. That the Client shall not assign the Agreement or any right or obligation under the Agreement, by operation of law or otherwise, without Pixalcom’s prior written consent.

21. Assignment of Copyright by Pixalcom. Pixalcom agrees that upon payment of all monies due and payable to it by the Client for the Client Web Site, Pixalcom shall assign all its right title and interest in any copyright it holds or may hold in respect to the Client Web Site.

22. Term. The term of the Agreement shall be a period of twelve (12) calendar months from the date that the Client Web Site is first uploaded on the World Wide Web (“the Term”).

23. Extended Term. Subject to the provisions of the Agreement, the Client may extend the Term for a further twelve (12) calendar month period and for further extended terms of twelve (12) calendar months (each referred to as “Extended Term”) during subsequent years by payment of the Annual Fee to Pixalcom of the Annual Fee at any time prior to Pixalcom. Subject to the provisions of these terms and conditions, the provisions of this paragraph shall, mutatis mutandis, apply to enable the Client to continue to extend the currency of hosting period each twelve (12) months.

24. Suspension. If the Client shall breach any provision of this Agreement or of the Policy Guideline, Pixalcom may immediately upon notice in writing to the Client remove the Client Web Page from the host server and deny access thereto to the Client and the public until the Client rectifies such breach to the satisfaction of Pixalcom and during such suspension the Client shall continue to be bound in all respects by the Agreement.

25. Termination. Either party may terminate this Agreement at any time upon thirty (30) days written notice of termination to the other party. There shall be no obligation upon a party to give any reason for termination. Pixalcom may also deem the Agreement to be terminated if upon expiration of the Term or any Extended Term, the Client fails to extend for a further term of twelve (12) months.

26. Effect of Termination. Upon termination:

(a) If the Agreement is terminated by Pixalcom due to breach of the Agreement or the Policy Guideline by Pixalcom or if terminated by the Client, the Client shall not be entitled to any refund of monies whatsoever and must pay any monies due and owing under the Agreement to Pixalcom forthwith upon demand.

(b) If Pixalcom terminates the Agreement for any reason not involving breach of the Agreement or the Policy Guideline by the Client, Pixalcom shall refund to the Client such proportion of the Price as equates to Work not yet undertaken by Pixalcom and in the case of any Extended Term such proportion of the Annual Fee as equates to the unexpired portion of the Extended Term.

(c) If the Agreement is terminated by either party or by the expiration of time, Pixalcom shall not be liable to the Client for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with the Client’s business, or for any other reason whatsoever flowing from the termination or expiration.

27. Miscellaneous Provisions.

27.1 Notices. Any notice or communication given by a party pursuant to the Agreement must be in writing and shall be deemed to have been duly delivered to the party to whom it is addressed if transmitted by email to that party’s email address which:

(a) in the case of Pixalcom shall be peter@pixalcom.com; and

(b) in the case of the Client shall be any email address thought by Pixalcom to be the Client’s email address and if the Client Web Site is accessible online shall be any contact email for the Client or the Client’s business shown on the Client Web Site;

and which shall be deemed to have been received by the party to whom it was emailed on the fifth day after it was sent. It shall be sufficient proof of sending if the party sending the email provides the printed transmission report showing the time and date that the email was sent and that it was sent to the proper email address.

A party may at any time alter his email address by giving notice to the other party of such change in accordance with and subject to the provisions of this paragraph 27.1.

27.2 Assignment. Pixalcom may assign its rights and obligations under this Agreement and may utilize contractors, sub-contractors, affiliates, employees and agents to perform its duties and obligations hereunder without the Client’s prior consent and without notice to the Client.

27.3 Governing Law. The Agreement and the interpretation of any part thereof shall be governed by the laws of the Commonwealth of Australia or the State of New South Wales (as the case may be) and all laws or rules otherwise governing the choice of law are hereby excluded. All actions relating to this Agreement must be brought in the appropriate Court, whether State or Federal, located in Sydney and the Client irrevocably consents to the jurisdiction of such courts.

27.4 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter and supersedes, replaces and negates all prior discussions, agreements, representations, proposals and understandings, whether oral or in writing between the parties or their representatives in relation thereto.

27.5 Force Majeure. Neither party shall be deemed in default of the Agreement to the extent that performance of the party’s obligations are delayed by reason of any act of God, fire, flood, natural disaster, act of government, strike, labour dispute, inability to obtain the necessary supply of products or services from a third party, power, electrical, internet or website failure, or any other act or condition beyond the reasonable control of the party in question.

27.6 Severability. If any provision of the Agreement is deemed to be illegal or unenforceable by a court of competent jurisdiction, such provision shall be deemed to be severed from the Agreement and the validity or enforceability of all other provisions of the Agreement shall not be affected and shall remain in full force and effect.

27.7 No Waiver. A party’s waiver of any breach or failure to enforce the performance by the other party of any provision of the Agreement shall not be deemed to be a waiver of any subsequent breach by that other party of the same or any other provision.

27.7 Amendment. The Agreement may be changed modified or amended by written agreement signed by the parties or by persons duly authorised to sign on their behalf, but not otherwise.

27.8 Survival. All provisions of the Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.

27.9 Australia Only. All prices and the Hourly Rates referred to in the agreement do not include GST and if the Client resides or carries on business in Australia, GST must be added in each case. For purposes of the Agreement “GST” means any tax imposed on the supply of goods, services, real or personal property or other things or similar tax as imposed by the GST Law and “GST Law” has the same meaning to the term in A New Tax System (Goods and Services Tax) Act 1999 as amended, renamed or replaced from time to time;

28. Definitions and Interpretation.

28.1 Definitions. In the Agreement unless the context otherwise requires:

“Accepted Quote” means a quote provided by Pixalcom to the Client in relation to the Work which has been duly accepted by the Client.

“Additional Feature” means an additional feature referred to in paragraph 2 hereof;

“Annual Fee’” means $250 (Australia Dollars) or such other annual fee as Pixalcom may decide from time to time after the expiration of the Term.

“Client” or “the Client” means the business owner of the business for which the Work is being carried out.

“Client Web Site” means the web site designed by Pixalcom as part of the Work;

“CMS” means contact management system.

“Google” means the search engines that operates under that name.

“Hourly Rate” mean $80 per hours or such other hourly rate as may be shown on the Pixalcom Web Site for work undertaken by Pixalcom, whichever is the highest.

“MB” means mega bites;

“Nominee” means Ilisys, a business trading in Australia in the field of business web hosting;

“Package” means a website package referred to paragraph I hereof;

“PayPal” means the e-commerce business which allows payments and money transfers to be made through the internet.

“Pixalcom” means Pixalcom Pty Ltd;

“Pixalcom Web Site” means the web site at www.pixalcom.com

“Policy Guidelines” mean the policy guidelines as may be amended from time to time and published pursuant to paragraph 18 hereof;

“Price” means the price quoted by Pixalcom to undertake the Work and duly accepted by the Client;

“Service” means a service referred to in paragraph 3 hereof;

28.2 Interpretation. In the Agreement unless the context otherwise requires:

(a) words importing the singular include the plural and vice versa;

(b) words importing one gender include the other genders;

(c) references to a person shall be construed as references to an individual, firm, body corporate, association (whether by incorporation or not), government and governmental, semi-government and local authority or agency;

(d) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it;

(e) headings are for convenience only and do not affect interpretation.

(f) a reference to a party is a reference to a party to the Agreement.