Provision of Services Agreement
Current as at 1 April 2023
1.1. WorldWeb Group Pty Limited trading as Acuiti (‘WorldWeb’) will perform the services set out in any agreed Proposal and Specification Document and any other services requested by the Client which WorldWeb agrees to provide (‘Services’).
1.2. In the event that any of the terms of this Agreement are or shall become invalid, illegal or unenforceable, the remainder shall survive unaffected.
2.1. In this Agreement and associated documents, the following expressions have these meanings set against them:
2.1.1. Client - The company or individual so named within this agreement, on the quotation, to whom the client has authorised access to the web hosting for the purposes of configuration, testing or development or those persons authorised/requested to act on behalf of the client.
2.1.2. Company - WorldWeb
2.1.3. Service Level Agreement - is an agreement that provides a formal process for hosting support both inside and outside regular business hours
2.1.4. Website Solution - is the Client’s Website or Application
2.1.5. System Software - is the software required to run the Website and Managed server
2.1.6. Server Equipment - is the equipment required to host Websites
2.1.7. Server Environment - is the data centre environment used to provide connectivity for all web servers
2.1.8. Managed Server Solution - a dedicated server for hosting of the Clients Websites
2.1.9. Web Hosting Server Configuration - is the configuration required services appropriate for running the current and future corporate Website
2.1.10. DNS Migration Process - is process provisioning the Domain Name Services (DNS) for Website Domain Names that are hosted within the Managed Server Solution
2.1.11. Data Transfer - is the total non-cumulative inbound traffic per server for all services hosted within the managed server solution
2.1.12. Storage Capacity - is the storage space per server
2.1.13. Technical Support - is the expertise in use of the System Software or Sever Environment maintenance that is provided by the Company’s staff or agents
2.1.14. Support Ticket - is the support email lodged using the dedicated support email system set up to receive and process support requests and resolutions
2.1.15. Support Request - is a formal request for support for technical issues related to website hosting, software, server issues, network issues, domain name issues or any other issues which relate to the Managed Server Solution
2.1.16. Support Level - will determine support time based on support levels defined within the terms of the agreement
2.1.17. Support Time - is the time impact to carry out maintenance tasks
2.1.18. Maintenance Tasks - are the set of tasks whether Programmed, Non Programmed or Urgent Ad-Hoc support requests that relate to the day to day running of the server and website solution including but not limited to Security Measures, Backup Measures, Package Updating, any other tasks that relate to the integrity, reliability and operation of the Website.
2.1.19. Fault Condition - a condition in which the expected operation of the Managed Server Solution or Website Solution fails due to any faults arising within the approved design or configuration. A fault condition does not include requests by the Client for functional enhancements nor modifications of the existing design to overcome limitations of the Website Solution or Managed Server Solution.
2.1.20. Programmed Ad-Hoc Support - is the pre-booked support task requested by the Client and submitted using the ticketing system. A Programmed Support task willbe carried out at an agreed selected monthly time interval and is not a part of maintaining the web hosting environment, so the time impact to carry out these tasks shall be billed at the agreed hourly rate and be invoiced accordingly.
2.1.21. Non-Programmed Ad-Hoc Support - is the support task that is not pre-booked but requested by the Client and submitted using the ticketing system. A Non-Programmed Support task may be requested on the day allocated to carry out the Programmed Ad-Hoc Support. Such tasks are not a part of maintaining the web hosting environment, so the time impact to carry out these tasks shall be billed at the agreed hourly rate and be invoiced accordingly.
3.1. The Client will pay the fees as set out in the Proposal or Specification Document. The Client will pay the fees for hosting and associated services for the term set out in the Proposal or Specification Document, even if the Client suspends or terminates these services (except for breach by WorldWeb).
3.2. The Client will pay for all work performed by WorldWeb which is not specified in the Proposal or Specification Document at the hourly rates specified in the Proposal or Specification Document.
3.3. The Client will pay all invoices within 7 days after the date of the relevant invoice, unless otherwise specified under the terms of a specific proposal.
3.4. If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by WorldWeb, the Client shall pay the undisputed amount claimed and shall notify WorldWeb in writing (within 7 days of receipt of the invoice) of the reasons for disputing the invoice. If the parties cannot come to an agreement in relation to the disputed amounts within 14 days of notification in writing by the Client to WorldWeb of the disputed amounts in accordance with this subclause, the parties shall attempt to resolve the dispute via the dispute resolution procedure as set out herein. Where there is a dispute the parties shall endeavour to arrive at a mutually agreeable resolution. Where this is not possible then the parties will agree to engage an independent arbitrator from the Law Society Association to assist in this dispute resolution process. Each party shall bear their own costs in relation to this arbitration process.
3.5. The Client will pay WorldWeb interest on any non-disputed amount outstanding under this agreement. Interest will be calculated daily at the rate of 10% per annum from the due date for payment. The Client will reimburse WorldWeb for any costs incurred by WorldWeb in recovering any outstanding amounts.
3.6. If any undisputed amount remains outstanding under this agreement then WorldWeb may provide written notice of the amount outstanding and allow the Client 10 working days to settle the undisputed amount. Should the undisputed amount remain outstanding after the 10 day notice period then WorldWeb may suspend or cancel all further access to services or systems provided to the client by WorldWeb.
3.7. Where the setup component of the project extends for a period of three (3) months or more from the date of commencement then WorldWeb will require payment for the remaining setup fee, and will commence charges monthly payments if applicable.
3.8. The amount payable for any taxable supply made under or in accordance with this agreement is exclusive of GST. The amount payable for any taxable supply made under or in accordance with this agreement will be increased by the rate of GST imposed by law.
3.9. Expenses, including travel and subsistence, and goods and services purchased on the Client’s behalf, are charged at cost. For travel, WorldWeb’s standard policies apply which are to use economy class within Australia and business class or equivalent for overseas air travel.
3.10. WorldWeb may increase base rates at any time by providing notice in writing. The increase will not exceed CPI in South Australia plus 10% in any given calendar year.
4. Intellectual Property
4.1. In performing its obligations under this agreement, WorldWeb will use and make available, and may create and make available, to the Client certain intellectual property rights (‘IPR’). This includes the Software Platform (“Quanta”).
4.2. Any IPR provided or created by WorldWeb is owned by WorldWeb. WorldWeb does not surrender or assign the IPR to the Client.
4.3. WorldWeb grants the Client a licence to use the IPR referred to in paragraphs 4.1 and 4.2 as is necessary for the operation of the Web Site (‘the Licensed IPR’). The Licensed IPR may only be used to operate the Web Site.
4.4. The Client shall keep confidential any methodologies and technology used by WorldWeb to carry out an engagement and shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the IPR.
5.1. WorldWeb provides a warranty in respect of the Work for a period of sixty (60) days from completion of the Work.
5.2. WorldWeb provides a warranty in respect of the Subsequent Work for a period of sixty (60) days from completion of the Subsequent Work.
5.3. No warranty is provided for maintenance or support work, or for any other work conducted and charged for on the basis of hourly rates.
6.1. The Client warrants to WorldWeb that it owns or is the authorised user of any IPR in the content of the Web Application or any related server for the Web Application (‘the Content IPR’); and indemnifies WorldWeb against any claim that WorldWeb has infringed the IPR of any person by using or varying the Content IPR or the information contained on the Web Application or any server for the Web Application.
6.2. The Client agrees to indemnify WorldWeb and its employees against all liabilities, claims, costs or expenses incurred by WorldWeb in respect of any claim or action by a third party in connection with the provision of the Services.
7. Hosting and Email Services
7.1. Fair Use Policy
7.1.1. Downloading and/or uploading of more than 20GB of data each month on or from your website is excessive use.
7.1.2. Storing more than 5GB of data on the designated web space is excessive use.
7.1.3. Storing more than 5GB of email per user email account is excessive use.
7.1.4. Where the Client is in breach of this Fair Use Policy, WorldWeb may contact the Client to discuss changing usage so that it conforms to this Fair Use Policy.
7.1.5. If, after WorldWeb has contacted the Client, the excessive use continues, WorldWeb may, without further notice suspend or limit the service (or any feature of it) for any period WorldWeb determines is reasonably necessary.
7.2. During any period when WorldWeb requires access to the Web Application, the Client will give WorldWeb three business days’ notice:
7.2.1. before supplying the Access Codes to any other person; and
7.2.2. of its intention to alter or to allow any other person to alter the Web Site.
7.3. The Client gives WorldWeb permission to access, manage and renew domain names as necessary.
8.1. WorldWeb is not required to make any backups of data unless requested by the Client. If requested to make any backups, WorldWeb does not guarantee that any data can be restored from backups and does not accept any responsibility for any loss or damage of data.
9. System Updates
9.1. From time to time WorldWeb may, in its sole discretion, update the Services with fixes, patches, maintenance releases and workarounds (‘Update’) which shall be provided to the customer as they become available during the term of this agreement. For the avoidance of doubt Updates do not include any WorldWeb Services deemed by WorldWeb to contain significantly enhanced features / capabilities or any new services or products.
10. Limited Liability
10.1. WorldWeb will not be liable to the Client in respect of any direct, indirect, special or consequential losses (including but not limited to loss of profits or loss of revenue) however caused, and regardless of whether the Client has been advised of the possibility of such loss, where such loss arises as a result of the breach of this Agreement other than as a result of any negligence or a statutory liability arising in connection with the supply of Products or performance of Services under this Agreement.
10.2. Except in relation to liability for personal injury (including sickness and death), and subject to 10.4, WorldWeb will not be liable to the Client in respect of any loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of the use or effect of Products or Services supplied pursuant to this Agreement or in respect of a failure or omission on the part of WorldWeb to comply with its obligations under this Agreement.
10.3. The Client releases and indemnifies WorldWeb, its servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against WorldWeb arising out of a breach of this Agreement by the Client or the fraud or negligence of the Client, its agents, employees or subcontractors or of any other person for whose acts or omissions the Client is vicariously liable.
10.4. The Client releases and indemnifies WorldWeb against any action, claim or demand by the Client’s End Users, servants, employees or agents or their personal representatives or dependants arising out of the performance of this Agreement other than as a result of any negligence or a statutory liability arising in connection with the supply of Products or performance of Services under this Agreement.
10.5. The Client shall at all times indemnity and hold harmless WorldWeb and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by the Client of its obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission of the Client.
11.1. For ongoing services, if applicable:
The Client agrees to make monthly payments for a minimum period of twelve (12) months from the said commencement date in order to pay WorldWeb the total sum for any hosting services. Should the client wish to cancel hosting services prior expiration of this minimum term, then the total fee owing to WorldWeb is sum of the number of months remaining on the agreement multiplied by the monthly servicing fee for each month.
11.2. Either party may terminate this agreement at any time after WorldWeb has performed the Services by giving written notice to the other party that it wishes to terminate this agreement.
11.3. If a party does not comply with the terms of this agreement (‘the Defaulting Party’) the other party (‘the Innocent Party’) may give written notice requiring this agreement to be complied with within no less than seven days in respect of a breach of 11.1, and no less than 30 days in respect of any other breach.
11.4.1. these terms are not complied with within the period stated in that notice; or
11.4.2. a party is insolvent within the meaning of the Corporations Act 2001 (Cth),
11.4.3. the Innocent Party may terminate this agreement by notice to the Defaulting Party.
12.1. Except where this agreement otherwise provides, WorldWeb must keep confidential any information that has been provided by the Client and that the Client has informed WorldWeb in writing must be kept confidential (‘the Confidential Information’).
12.2. WorldWeb may use the Confidential Information only to the extent that the use is required:
12.2.1. for WorldWeb to perform its duties under this agreement; or
12.2.2. by law or the rules of a stock exchange, government or government agency having jurisdiction over WorldWeb.
12.3. WorldWeb may wish to obtain publicity for work undertaken on behalf of its clients. WorldWeb assumes the right to use references in proposals or other similar submissions made to other prospective clients, unless the Client expressly prohibits such disclosure, in writing, prior to commencement of the engagement. WorldWeb shall be entitled to claim authorship for any work for which it has been responsible.
13. Entire Agreement
13.1. This agreement and any invoices or executed proposals issued by WorldWeb constitutes the entire agreement between the parties for the subject matter of this agreement. Any prior arrangement, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in writing signed by each party.
14.1. The rights and obligations of each party under this Agreement are personal and cannot be assigned, charged or otherwise dealt with, without the prior written consent of all parties. Such consent must not to be unreasonably withheld.
14.2. WorldWeb may assign its rights and obligations under this Agreement to a company, whether or not this company has been incorporated at the date of this Agreement, without the prior consent of the Client provided that written notice is provided to the Client.
15.1. Time is of the essence in respect of obligations to pay money and the giving of notice to terminate this agreement.
15.2. This agreement is governed by the laws of South Australia and the Commonwealth of Australia. Any proceeding brought in the Federal Court of Australia must be instituted in the South Australian District Registry.