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TERMS AND CONDITIONS
KANDOV HOLDINGS PTY LTD (ABN 78 087 495 592)
Trading as OZECLICK (BN18105105)
1. Interpretation
1.1 ‘OzeClick’ may be substituted throughout this document with ‘Kandov Holdings’, ‘Us’, ‘Our’ and ‘We’.
1.2 ‘Client’ may be substituted throughout this document with ‘You’ or ‘Customer’.
1.3 ‘Client’ means any user (individual or organization) of any service offered by OzeClick.
1.4 ‘Client Data’ means any file or content contained on the Client website, such as images, text, video and other files,
1.5 ‘Partner’ means any business partner of Ozeclick.
1.6 ‘Service’ means any service provided by Ozeclick or our Partners.
2. Acceptance of Agreement
2.1 By ordering any Service offered by Us or Our Partners, You agree to be bound by all the Terms and Conditions contained in this document.
2.2 All Terms and Conditions will remain binding throughout the duration of any agreement made between You and Us.
3. Services
3.1 We will assign the client a logon name and password which will provide you with access to your Site Management Interface. We will provide the client with Web and Email Services as quoted.
3.2 We or our Partners will email the Client with all the relevant setup information.
3.3 The Service is provided by Ozeclick from data centers in Australia and the United States. Ozeclick will determine in its absolute discretion from time to time the datacentre location from which your Service is provided.
3.4 In contracting with Ozeclick for the Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by Ozeclick to deliver the Service.
3.5 In the absence of any additional written agreement, these terms (as varied from time to time) will apply to any further Services you acquire from Ozeclick.
3.4 Any websites created for you by Ozeclick are provided at the complete discretion of Ozeclick. Ozeclick reserves the right to include or exclude specific content in any website created at their discretion.
4. Payment & Billing
4.1 You must pay for the Service as notified to you by Ozeclick or Partner. Our terms of payment are 30 days from the Invoice Date.
4.2 Overdue payments may result in you paying additional Late Payment Charges. This includes administration costs, reconnection costs, debt collection costs, solicitor costs and any court costs.
4.3 The Customer must pay Ozeclick in advance for all recurring monthly services including:
a. Hosting;
b. Shopping carts;
c. Search engine optimisation; and
d. Any other recurring services introduced by Ozeclick.
4.4 The Customer must pay Ozeclick for all work performed by Ozeclick, including site design, site construction, design adjustments, content insertion and other work at the standard hourly rate.
4.5 Ozeclick will send the Customer an invoice to their designated email address.
4.6 The Customer is responsible for ensuring their contact details (including invoice email billing address) are up-to-date.
4.7 The Customer can update their contact details by using the Contact Us page on the Ozeclick Website.
4.8 Any costs incurred by Ozeclick resulting from out-of-date Customer contact details will be charged to the Customer.
4.9 Payment not received within 60 days of the invoice date will result in the Customer's service being suspended.
4.10 The Customer will incur a reconnection fee of $40 when their service is reconnected after being suspended for non-payment.
4.11 Payment not received within 90 days of the invoice date will result in the Customer's site being deleted and the Customer handed over to debt collection services.
4.12 Disk Space and Bandwidth:
a. Customer sites hosted by Ozeclick will be allocated 100 Megabytes of disk space.
b. Customer sites that exceed their allocated disk space will be charged an extra $10 per month for each 100 Megabyte block added to their allocated disk space. If The Customer is no longer using the extra allocated space and wishes to have their allocation reduced, The Customer must contact OzeClick. Space usage can be monitored by The Customer in Plesk.
c. Customer sites hosted by Ozeclick are allocated 1000 Megabytes of bandwidth (inclusive of uploads, downloads and emails) per month.
d. Customer sites that exceed their allocated bandwidth will be charged an extra $10 per month for each 1000 Megabyte block added to their allocated bandwidth. If The Customer is no longer using the extra allocated bandwidth and wishes to have their allocation reduced, The Customer must contact OzeClick. Bandwidth usage can be monitored by The Customer in Plesk.
e. Customers will be informed by email of such changes to their billing.
5. Warranties And Liabilities
5.1 We do not warrant that:-
a. the services provided under this agreement will be uninterrupted or error free;
b. the services will meet your requirements, other than as expressly set out in this agreement or
c. the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Ozeclick.
5.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
5.3 Except under clause 5.2, none of Ozeclick, its subsidiaries, officers, directors, employees, partners or suppliers will be liable to you or any third party for:-
a. any special, punitive, incidental, indirect or consequential damages of any kind,
b. any damages whatsoever, including, without limitation, those resulting from:-
I. loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services,
II. the statements or actions of any employee or agent of Ozeclick,
III. any unauthorized access to or alteration of your website, transmissions or data,
IV. any information that is sent or received or not sent or received,
V. any failure to store or loss of data, files or other content,
VI. your fraudulent, negligent or otherwise unlawful behaviour
VII. information, data or other material provided to Ozeclick by you or on your behalf or
VIII. any Services that are delayed or interrupted.
5.4 You warrant that:-
a. at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
b. you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not, in any way, corrupt the data or systems of any person;
c. you will keep secure any passwords used to upload data to the Server and
d. you hold and will continue to hold the copyright in the Client Data or that you are licensed and will continue to be licensed to use the Client Data.
5.5 You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledges that we do not vet or approve any information or material available through the Service and that we do not accept any liability. To the full extent permitted by law you access and use such information and material at your own risk.
5.6 You agree to abide by our Acceptable Use and Privacy Policies and you agree that the terms of those two policies form part of this agreement between you and Ozeclick.
5.7 You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
5.8 Except as provided in clause 4.2. we are not liable to you or any other person for:-
a. any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
b. the content, context or confidentiality of any communications made using the Service;
c. loss or damage caused by third party software applications forming part of the Service.
5.9 You indemnify us against all costs, expenses, loss or liability that you may suffer (directly or indirectly) resulting from:-
a. your breach of these terms,
b. your use or misuse of the Service and
c. the use or misuse of the Service by any person using your account,
d. publication of defamatory, offensive or otherwise unlawful material on any website forming part of your Service.
6. Suspension And Termination Of Service
6.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:-
a. during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
b. if the Customer fails to comply with any agreement (including failure to pay charges due) until the breach (if capable of remedy) is remedied, or does, or allows to be done, anything which in our opinion may have the affect of jeopardising the operation of the Service. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.
6.2 Ozeclick may without notice to you remove, amend or alter your data, suspend or terminate the Service or disconnect or deny your access to the Service upon being made aware of:-
a. any claim or allegation; or
b. any court order, judgment, determination or other finding of a court or other competent body,
that the data is illegal, defamatory, offensive or in breach of a third party's rights.
6.3 We may end our agreement with you and cease providing Services for any reason, on 30 days notice to you.
6.4 You may close your account with Ozeclick on 30 days written notice to Ozeclick. You may cancel any individual service for any individual website by providing 30 days written notice to OzeClick.
6.5 If your account is closed you must pay all outstanding charges immediately and we may delete all Client Data from any storage media.
7. Web Services
7.1 Ozeclick’s Web services, comprising Web Marketing Tools, Site Editor, Shopping Cart, and all upgrades and additional products provided by Ozeclick (“Web Services”), are offered by Ozeclick or Partner and purchased by you directly from Ozeclick or through a Partner on following conditions:-
a. Ozeclick provides the Web Services software ‘as-is’ and without warranty of any kind, either express or implied.
b. Ozeclick gives no warranty that:-
(i) the Web Services will meet your requirements,
(ii) the Web Services will be uninterrupted, timely, secure, or error-free,
(iii) the results that may be obtained from the use of the Web Services will be effective, accurate or reliable, and
(iv) any errors in the Web Services software obtained from Ozeclick, or any defects in the Web Services, will be corrected.
c) Ozeclick will not be liable for acts or omissions of third party E-commerce payment gateway providers such as the Australian Commonwealth Bank, PayPal, and any other provider who may provide those services as part of the Web Services. You will deal with those providers at your own risk.
d) You accept full responsibility for all online transactions you originate or execute using the Web Services with or without credit and/or debit cards.
e) You are responsible for and indemnify Ozeclick in respect of legal obligations you have to end-users of the Web Services under any legislation, including without limitation the Privacy Act (Cth) 1998 as amended.
f) Ozeclick accepts no responsibility for any cost, loss or liability (including loss of profit or other consequential damage) that might arise through your use of the Web Services.
g) You indemnify Ozeclick and hold us harmless against any liability in relation to all transactions undertaken using the Web Services, including in respect of claims by or in respect of services provided by payment gateway providers.
7.2 You acknowledge that Ozeclick is acting as a reseller of some of the Web Services like Miva Merchant Shopping Cart and is not the agent, partner or joint venturer of the supplier of those Web Services to Ozeclick.
8. Miscellaneous
8.1 The client grants to Ozeclick a license to use and reproduce all Client Data in order to fulfill its obligations under this agreement. In this agreement "Client Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client's web sites or emails.
8.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
8.3 The law in force in the State of Queensland and the Commonwealth of Australia governs this agreement and the transactions contemplated by this agreement.
8.4 You may not resell Services or Web Services or assign your rights and obligations under this agreement without our prior written consent.
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