Terms of Service
By purchasing a Sephyroth service including a mobile apps and websites you confirm that you (the client) agree to adhere to these terms of service. These terms of service are legally binding and represent an agreement between you (the client) and Sephyroth LLC/“Sephyroth”.
General Terms of Service
- Sephyroth designs, builds and hosts mobile apps & websites and provides online and telephone support. Sephyroth also provides SEO, Data Analytics, Media Production and Social Media Marketing services.
- The Client has the right to, title, and interest in a website containing intellectual property owned by the Client together with, but not limited to textual content, video and/or audio.
- The Client warrants Sephyroth to host its website and understands that Sephyroth websites must be hosted on Sephyroth servers due to Sephyroth’s proprietary CMS software.
- Sephyroth websites all come with a Content Management System known as the Sephyroth CMS and Sephyroth design template which the Client has access to.
- Sephyroth licenses the use of the Sephyroth CMS software and design templates for the duration of the contract.
- Ownership of the intellectual property of the Sephyroth CMS software and design templates is not transferred to the Client as part of the purchase of the website.
- This agreement shall take full force and effect as and from the date of the Client’s purchase of the website.
- Sephyroth shall supply to the Client all services necessary to effectively host the Client’s’ website and make available for a fee to the Client the services of Sephyroth to provide to the Client online support, telephone support for the ongoing administration and maintenance of the Clients website hosted by Web123 in circumstances where the Client requests such support.
- This Agreement may change from time to time. In the event that this Agreement changes, Sephyroth shall advise the Client in writing at least 30 days before the changes shall take effect. If the Client asserts that any changes to this Agreement show unfair bias against the interests of the Client in favour of Sephyroth, the Client agrees to dispute the application of the changes in writing prior to the changes taking effect. In the event of a dispute the Client will either be provided with a written exemption from the specific changes within this Agreement that the Client asserts to be unfair, or if this is not possible the Client may at its option terminate this Agreement by giving 30 days’ notice to Sephyroth whereupon Sephyroth shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement. In the event Sephyroth is required to advise the Client of such a change of the Terms of Service or Costings Agreement, the Client may at its option terminate this Agreement by giving 30 days’ notice to Sephyroth whereupon Sephyroth shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- Sephyroth have an Fair Use policy, and the Client upon executing this Agreement is deemed to have read and understood the Fair Use policy of Sephyroth and agreed to be bound by it.
- The Fair Use policy of Sephyroth may change from time to time. In the event this policy changes Sephyroth shall advise the Client in writing within 7 days of the change of the Fair Use policy. In the event Sephyroth are required to advise the Client of such a change of the Fair Use policy, the Client may at its option terminate this Agreement by giving 30 days’ notice to Sephyroth whereupon Sephyroth shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
- Notwithstanding anything contained in the Fair Use policy of Sephyroth as set out in this Agreement, the Client warrants to Sephyroth that it is the lawful owner of, or has permission from the lawful owner to publish all intellectual property published on its website that it has requested Sephyroth to host. In the event that the Client, in allowing Sephyroth to host its website breaches any law of, but not limited to any State or Territory of the United States of America, Sephyroth may terminate this Agreement without prejudice to the rights of Sephyroth to seek one or all of compensation damages indemnities relating to liability incurred as a result of the Client’s aforementioned breaches.
- Sephyroth may terminate the Agreement without notice to the Client in the event Sephyroth becomes aware of any of the following:
- Content on the Client’s website (including content generated by users of the Client’s website) that does not comply with the Fair Use policy of Sephyroth as set out above.
- Notwithstanding the terms of Fair Use policy of Sephyroth any matters that is either offensive and/or obscene, seditious, blasphemous, defamatory or inappropriate in the opinion of Sephyroth.
- Repudiatory conduct as defined under Clauses 60-63.
- Any outstanding invoices not paid to Sephyroth within the specified payment terms under Clause 21.
- The Client warrants to Sephyroth that it shall not by its conduct frustrate Sephyroth from hosting its website or withhold the necessary support to Sephyroth for the effective hosting of the website. Sephyroth shall not be liable for any interruption to the provision of the Client or the hosting services where an interruption is beyond the control of Sephyroth including but not limited to force majeure.
- Sephyroth warrant to the Client that 99.9% of the time in any given month the Client’s website will work when accessed from a browser with unrestricted access to the internet. In this Service Level Agreement the expression “availability” shall have the meaning of availability to users of the internet unaffected by local or network limitation. In the event that the website is available in any given calendar month for a period of time less than 99.9% Sephyroth shall give to the Client a rebate of their monthly fees to be calculated on a pro rated basis for the time that the website was offline in that given calendar month. Sephyroth shall not be liable for any losses in circumstances where the Client’s site is offline at any point reflecting a monetary sum beyond the sum required paid for hosting in that given calendar month.
- In the event Sephyroth terminates this Agreement as a result of any breach of this Agreement by the Client and withdraws its hosting services from the Client whereby the Client’s web page is no longer hosted on the internet:
- Sephyroth will not be liable for any loss or damage arising from the withdrawal of the hosting services from the Client.
- Should any breach be resolved and the Client desirous of reactivation of services, Sephyroth will charge a reactivation fee of no less than $299 including GST to cover Sephyroth s reasonable costs incurred as a result of the breach, to be paid in full before reactivation.
- Should a site be deactivated for a period in excess of 6 month for any reason, the purchase of new licence and website would need to be purchased at a cost to be advised at the time, according to new website pricing structures.
- The Client agrees to advise Sephyroth of any change of contact details. Sephyroth will not be liable for any consequences of tax invoices or other notices or documentation being sent to incorrect addresses as a result of a failure of the Client to provide notice of a change of said details, including deactivation of websites due to non payment of invoices.
- In this Agreement Sephyroth shall provide services to the Client for fees as advertised within the Sephyroth website.
- Sephyroth charges all fees upfront, in advance. Payment of website hosting and support fees are charged on the 1st of each calendar month, and payable via automatic credit card payment processing. For Clients wishing to pay via direct deposit an invoice for 12 months of ongoings will be issued to the Client no less than 7 days before the due date. Any unpaid invoices will result in the suspension of all services as per Clause 31b.
- Sephyroth reserves the right to increase ongoing fees related to the hosting and technical support of Client websites. Annual price increases will occur on 1 July each year in accordance with the most current CPI, with any increases outside of this to be notified to the Client at least 30 days prior.
- Sephyroth shall provide up to a maximum of 50GB data transit per calendar month. Any additional data transit required shall be supplied and charged at $10 per GB.
- Sephyroth shall provide an ongoing support allocation inclusive in its regular ongoing costs with limits as defined under Clauses 20-28. Any support incidents raised beyond the terms of Clause 20-28 will be charged at a rate of $149 per hour including GST. Sephyroth reserves the right to waive additional charges for support at its discretion. The Client will not be charged for any support incidents determined by Sephyroth to be attributable to a problem with the underlying software or an error on the part of Sephyroth.
- Sephyroth reserves the right to decline the provision of technical support if a Client has unpaid hosting, or other outstanding amounts for which payment has not yet been received.
- Sephyroth reserves the right to classify a project as ‘abandoned’ should no contact be made by the Client for 3 months or more. All abandoned projects will be archived for a further period of 6 months only, at which point the project will be purged from our servers and a new website package will be quoted in accordance with the current pricing structure.
- Any abandoned projects for which a deposit has been paid will not be refunded, and any work completed by Sephyroth remains the property of Sephyroth.
- Any extra hours completed by Sephyroth beyond the initial deposit received, will be invoiced to the Client upon the project being marked as ‘abandoned’. Should the Client fail to pay this invoice, Sephyroth reserves the right to engage Dun and Bradstreet to recoup monies owing on its behalf.
- Should the Client change the scope of the project after initial commencement, all fees paid to Sephyroth in advance will not be refunded to the Client, and any additional outstanding amounts will be payable. Should the client wish to proceed with a new scope, a new package will be quoted by Sephyroth in accordance with the current pricing structure.
The Client warrants to Web123 and agrees to:-
- Pay Sephyroth in full, in advance, at all times. No work will be commenced until payment has been received.
- Execute all documentation necessary to allow Sephyroth to directly debit from the Client’s credit card monthly charges for all and any products and/or work undertaken by Sephyroth for the Client.
- Availability of funds:
- Ensure that valid credit card details are supplied to Sephyroth prior to the first of each calendar month, with sufficient funds to make payment to Sephyroth for any monies due and owing.
- Should payment not be made by or on the due date of invoice, Sephyroth reserve the right to suspend any and all services and at its discretion charge a reactivation fee of $299 before reinstating these services.
- Should payment of any recurring monthly fees be declined where follow up from our Accounts Team is required for 2 or more consecutive months, Sephyroth reserve the right to charge the Client 12 months of monthly fees in advance, in addition to a $99 administration fee for alterations made to the account.
- Make payment upon receipt of a tax invoice from Sephyroth for all charges including but not limited to website hosting, technical support, SEO, websites and marketing packages, which shall all be charged in advance.
- Make payments to Sephyroth upon receipt of a tax invoice from Sephyroth for excess charges for messages or data which shall be charged in arrears.
- Make payments punctually on the first of each calendar month in accordance with the billing periods which shall be based on calendar months.
- In the event this Agreement is terminated by the Client, the Client agrees to pay to Sephyroth an amount to be costed on the basis of all services provided by Sephyroth that remain unbilled as at the date of termination.
- Provide to Sephyroth 30 days written notification for any cancellation request. Notice must be provided by the account holder or a nominated representative (as identified by the Client) and clearly state the service to be cancelled, along with the date the cancellation is required to be actioned. Sephyroth reserve the right to charge 30 days of monthly ongoings if such notice is not provided.
- In the event the Client is a corporation, the directors of the Client agree to be parties to this Agreement and guarantee the performance of the Client and further agree to assume each and every liability and obligation of the Client pursuant to this Agreement in the event of and as and when the directors of the Client are called upon to do so for whatever reason. The obligations of the directors of the Client include but are not limited to the payment of any and all tax invoices rendered to the Client by Sephyroth.
FAIR USE, REPUDIATORY CONDUCT AND DISPUTES
- Sephyroth does not apply fixed limits to the amount of support we give to our Clients. The Client understands that Sephyroth must ensure it is able to provide quality service to all its Clients, and that no Clients should be disadvantaged by the behaviour of others. The Client agrees to be bound by Sephyroth s Fair Use policy outlined in this section.
- The Client agrees not to engage in excessive contact, which includes but is not limited to:
- Repeatedly asking for assistance with matters outside Sephyroth s control, responsibility, or remit, after Sephyroth has advised the Client that this is the case, including but not limited to: basic computer assistance, business advice or other technical assistance not related to Sephyroth’s services.
- Repeatedly and unreasonably asking for assistance with matters with which Sephyroth has previously provided training. The Client agrees to endeavour to understand the training they are provided.
- Excessive phone calls or emails to the extent that it has a detrimental impact on our ability to service our other Clients.
- Demands for assistance with non-urgent matters outside of Sephyroth’s support hours where urgency is determined at the sole discretion of Sephyroth.
- If Sephyroth determines that the Client is engaging in excessive contact, it will provide written notice to the Client of this determination, and the Client agrees that Sephyroth at its sole discretion may as a result undertake any or all of the following actions.
- Apply a restriction on contact time permitted with the Client.
- Invoice the Client for all or a portion of time spent on the phone, responding to emails and support tickets, and any other undertakings required to service the Client.
- Suspend and/or terminate the Client’s provision of services, not before a third warning has been given.
- Sephyroth agrees that notices of excessive contact must be provided within 30 days of said excessive contact and the determination can only be made on the basis of activity within the 90 days preceding the date the notice is issued.
- The Client agrees that any dispute it wishes to make to a notice of excessive contact must be provided in writing to Sephyroth within 14 days of the issue of the notice.
- The Client agrees not to engage in repudiatory conduct, which includes but is not limited to:
- Abusive behaviour towards staff, agents, partners or directors of Sephyroth, which includes threatening behaviour and/or speech.
- Defamation of staff, agents, or directors of Sephyroth, or of Sephyroth or related businesses.
- The Client agrees that in instances of repudiatory conduct, Sephyroth is entitled to immediately terminate this agreement without prejudice to its rights to seek one or all of compensation, damages, or indemnities relating to the conduct.