Web Design Terms of Service
1.1. “Constructive Visual” means Constructive Visual Pty Ltd (trading as Constructive Visual) of Western Australia, Australia.
1.2. “Customer” means the person or entity who ordered our services.
1.3. “Service“, “Service(s)” or “Services” means any product(s) or service(s) the Customer has signed up to use. This can include but is not limited to, the provisioning of space on one of our servers and a connection to and from the internet for web, email, and FTP services to function at the level specified in the chosen service level, domain name registration, or transfer or renewal, SSL, website services. These product(s) and service(s) are identified in full within the “sign up” and “service provision” emails Constructive Visual has sent after your request for service. The specific details of the Services can be found by logging into your “Client Login” section on our website.
1.4. “Client Login” refers to Constructive Visual’s customer account, billing, and management portal, available directly from our website.
1.5. “VentraIP” or “Synergy” refers to Constructive Visual’s web hosting service provider.
3.1. The Customer agrees to a month to month contract term for Services unless otherwise stated in the product or service offering (eg. domain names, SSL, 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 written cancellation by the Customer.
3.2. Monthly services are established as part, thereof, signifying the beginning of a new month demotes commitment till the end of that monthly period.
4. Service, Marketing and Promotional Emails
4.1. The Customer agrees to receive Service, Marketing and Promotional emails from Constructive Visual to the email address registered to their account.
4.2. Email from Constructive Visual to the Customer in regard to a Service, such as invoicing and other notices, will be sent from noreply [at] constructivevisual.com and should always be read by Customer as they will always contain important information.
4.3. The Customer may choose to opt-in to receive email notifications from our Service Status system in relation to their Service(s). This can be controlled by the Customer in Client Login.
4.4. From time to time, Constructive Visual will send the Customer internal marketing and promotional emails, such as current promotions, a monthly newsletter, and other special offers. These emails will be sent from newsletter [at] constructivevisual.com
4.6. If the Customer does not want to receive these emails, they are required to close their account and any Service associated with the account, in accordance with Section 12 of this policy.
5. Availability of Services
5.1. While Constructive Visual will endeavour to provide continuous availability of all Services to the Customer, Constructive Visual and VentraIP will not be liable for any service interruptions or down time.
5.2. Scheduled maintenance will be performed at times which is deemed suitable by VentraIP which has the least noticeable impact on the Customer, and should it require the Services to be offline for greater than thirty (30) minutes Constructive Visual will post details of the scheduled maintenance at least two (2) days prior.
5.3. Unscheduled maintenance will be performed as required by VentraIP, and should the Services be offline for greater than thirty (30) minutes Constructive Visual will post details of the maintenance and any updates until it has been completed. Details of these events can been found at http://status.ventraip.com.au
6. Domain Name Registration and Renewal
6.1. The Customer acknowledges that Constructive Visual is an a domain name registrar.
6.2. The Customer acknowledges that they have read and agree to any applicable Registrant Agreement before purchasing any domain name Service(s) from Constructive Visual.
6.3. The Customer acknowledges that all domain name Service(s) are non-refundable once the order for the domain name Service(s) has been processed and accepted by Constructive Visual.
6.4. Constructive Visual does not warrant or guarantee that a domain name application will be approved. The Customer should take no action in respect of the requested domain name(s) until they have been notified by Constructive Visual that the domain name(s) has been approved and is in the Customers name.
6.5. The registration of the domain name and the ongoing use of the domain name are subject to the relevant naming authority’s terms of service and the Customer is responsible for ensuring awareness of these terms and that they are adhered to. The Customer waives any right to make claim against Constructive Visual in respect to a decision made by a naming authority to refuse registration or renewal of a domain name.
6.6. The Customer acknowledges that Constructive Visual is not obligated to renew a domain name for the Customer, if the Customer has not confirmed to Constructive Visual that the domain name is to be renewed, or the invoice for renewal has not been paid in full, or it is determined that the Customer does not satisfy the eligibility criteria to continue holding the domain name license. In these circumstances, Constructive Visual will not be held liable by the Customer for any loss or damages. All renewal requests must be submitted via Client Login.
6.7. Domain name registration or renewal may be declined by Constructive Visual if the Customer is in breach of these Terms of Service, Acceptable Use Policy, Customer Service Policy or any applicable Registrant Agreement, or the customer has other unpaid or unresolved fees.
6.8. It is the Customers responsibility to ensure that all contact details held by Constructive Visual in relation to the billing of domain names are kept up to date, as Constructive Visual will use these details to advise the Customer of any pending renewal or transfer requests.
6.9. Should the Customer choose to terminate all services with Constructive Visual, but does not transfer a domain name to another registrar, the Customer agrees that Constructive Visual may contact the Customer after the account closure to advise of any domain name renewal or transfer.
7. Limitation of Liability
7.1. Constructive Visual shall not be liable to the Customer for harm caused by or related to Customer’s Service or inability to utilise the Service unless caused by gross negligence or wilful misconduct.
7.2. 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.
7.3. Notwithstanding anything else in this agreement, the maximum aggregate liability of Constructive Visual, any of its employees, agents or affiliates, under any theory of law shall not 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.
8. Customer General Warranties and Undertakings
8.1. The Customer warrants that any information supplied for the purpose of creating an account with Constructive Visual, including but not limited to, first name, last name, address, telephone number and email address is true and correct, and will be kept up to date in Client Login.
8.2. The Customer warrants that they will keep any passwords or sensitive information used with the Service in a secure location.
8.3. The Customer warrants that they hold and will continue to hold the copyright for data stored on Constructive Visual’s servers, or that they are licensed and will continue to be licensed to use that data.
8.4. The Customer warrants that at the time of entering into this agreement they are not relying on any representation made by Constructive Visual which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Constructive Visual.
8.5. The Customer warrants that all due care has been taken to ensure data integrity on Constructive Visual’s servers. This includes an undertaking that the Customer will conduct computer virus scanning and other tests as necessary to ensure that the data uploaded by the Customer on to or downloaded by the Customer from the server does not contain any computer virus and will not in any way corrupt the data or systems of any person.
8.6. The Customer agrees that they are solely responsible for dealing with anyone who accesses their data, and that you will not refer complaints or inquiries in relation to such access to Constructive Visual.
9. Constructive Visual General Warranties and Undertakings
9.1. Constructive Visual accepts liability for the supply of the Service to the Customer to the extent provided in this agreement.
9.2. Constructive Visual does not warrant that:
a. The Services provided within this agreement will be uninterrupted or error free;
b. The Services will meet your requirements, other than as expressly set out in this agreement;
c. The Services will not be subjected to external hacking attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal Constructive Visual systems.
9.3. Constructive Visual 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.
9.4. No oral or written information or advice given by Constructive Visual 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.
9.5. In no event will Constructive Visual 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.
10. Fees and Credit Management
10.1. In relation to fees for Services:
a. Fees for Services ordered by the Customer shall begin on the date of the initial order and shall be pro-rated 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, annually, biennially or triennially.
b. 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 biennially billing cycles (eg. domain name registrations, SSL, etc).
c. Fees are due in advance of the billing cycle and will be invoiced to the Customer seven (7) days prior to the due date. 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.
10.2. In relation to fees for upgrades to Services:
a. 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 (eg. domain name registrations, etc).
b. Upgrades ordered by the Customer after the billing anniversary date will be pro-rated to the next anniversary date at the full monthly costs. Future fees will appear as the new plan from your existing anniversary billing date.
c. 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.
d. Additional fees may be payable for upgrades where manual work is required by Constructive Visual to process the upgrade request (eg. shared hosting to reseller hosting, intercontinental transfers, inter-server transfers, etc).
10.3. In relation to fees for downgrades to Services:
a. Downgrades will be processed when the request is received by Constructive Visual from the Customer, unless otherwise specified in the request.
b. A credit will be issued to the Customer’s account for the difference of any pro-rated pre-paid amount minus the cost of the new plan pro-rated on the chosen cycle.
c. A $15.00 administration fee may be charged for a downgrade request at Constructive Visual’s sole discretion. Additional fees may be payable for downgrades where manual work is required by Constructive Visual to process the downgrade request (eg. reseller hosting to shared hosting, intercontinental transfers, inter-server transfers, etc).
10.4. Any fees paid for the setup or establishment of any Services will be automatically deemed as non-refundable.
10.5. Fees for one-off Services including, but not limited to, dedicated IP address, SSL certificates, SMS credits, instant data blocks and instant disk blocks, are due within seven (7) of the invoice being issued and are non-refundable.
10.6. All published prices are inclusive of any government taxes and charges, unless otherwise noted.
10.7. The speed of provisioning new Services is reliant upon the Customer having paid any and all outstanding fees in full.
10.8. 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.
10.9. Accounts that are more than three (3) days past the due date will automatically attract an overdue fee of $10.00 which will be payable on top of the invoice amount.
10.10. Accounts that are more than seven (7) days past the due date will be automatically suspended, and a re-connection fee of $15.00 in additional to any outstanding fees may apply to have the service restored.
10.11. Accounts which are not paid in full within fourteen (14) days of the due date will be automatically deleted from our servers.
11. Suspension and Termination of Services
11.1. Constructive Visual may suspend or terminate Services if:
a. The Customer is found to be in breach of any formal policy including but not limited to these Terms of Services, Acceptable Use Policy, Customer Service Policy or any applicable Registrant Agreement;
b. The Customer has become insolvent or bankrupt;
c. The Customer has outstanding fees that are more than seven (7) or fourteen (14) days respectively, past the due date;
11.2. Constructive Visual may decide at its sole discretion to advise a Customer that their service will be terminated by giving thirty (30) days written notice. In this circumstance, Constructive Visual will refund any pre-paid fees for Services on the account.
11.3. If a Customer’s account is closed for any reason, the Customer must pay all outstanding charges by the due dates.
11.4. Constructive Visual is under no obligation to provide the Customer with a copy of the data stored on our servers if Constructive Visual has suspended or terminated access to the service for any breach of terms 11.1 “a” through “c” of this agreement. In this circumstance, a copy of the data may be provided to the Customer for an additional fee.
12.1. The Customer can request cancellation of any Service with us for any reason by logging in to Client Login and submitting a secure cancellation request. For account security reasons, we will not accept cancellation requests by any other method.
12.2. Any pre-paid fees for Services past the current billing month will be refunded, except the Services that are not eligible for a refund (eg. domain name registration, SSL certificates, WordPress maintenance plan, web hosting services and any additional services that specify “no refund” on the plan page etc).
12.3. The Customer agrees to pay any and all outstanding fees upon cancellation of their Services.
12.4. Cancellation requests must be received by Constructive Visual four (4) days before the package renewal date. If cancellation is not received before this time, package renewal costs generated for the next period of time will remain outstanding or an administration fee of $9.95 may apply (which ever is the lesser value).
13. Data Management
13.1. Constructive Visual reserves the right at its own discretion to backup and archive the Customer’s data on a regular basis for the purpose of disaster recovery.
13.2. In the event of hard disk failure or data corruption, Constructive Visual will restore data from the last known verified archive for a fee payable by the Customer.
13.3. If all backup and archived data appear to be corrupt, the Customer should be prepared to upload the data to their account from a local copy, and setup all mailboxes and FTP accounts.
13.4. The Customer should always maintain a recent copy of all data at all times, as Constructive Visual will not be liable for incomplete, out of date, corrupt or otherwise incomplete data recovered from our backups and archives.
13.5. Constructive Visual takes automatic system backups of all web hosting packages seven (7) times a week.
13.6. Constructive Visual and our supplier will take automatic system backups of Business Web Hosting Services seven (7) times a week, being every morning. Constructive Visual and our suppliers will also retain a weekly rotation of these backups.
14.1. Constructive Visual may amend the Terms of Service at any time. Should any change occur, we will advise the Customer by email and note the specific changes which have occurred, and provide fourteen (14) days notice before any changes are enforced.
14.2. In exceptional circumstances, Constructive Visual Management may be required to amend the Terms of Service and enforce the amendments immediately. If this is the case, the Customer will be advised by email and the circumstances will be explained.
14.3. Our Terms of Service are made available online for viewing on our website.
15. Use of Identity
15.1. The Customer agrees to use the Constructive Visual logo, company information and related services in accordance with approved marketing guidelines.
15.2. Constructive Visual agrees not to use a Customer name, logos or information without prior written consent of the Customer.
16. Entire Agreement
16.1. These terms and conditions constitute the entire agreement between Constructive Visual and the Customer, and it supersedes all prior oral or written agreements, understandings and representations.
17. Governing Law
17.1. The Customer agrees to abide by all local, state and federal laws pursuant to the Services delivered by Constructive Visual.
17.2. The Customer agrees that these terms and conditions are governed by the laws of Western Australia and Victoria, Australia, and agrees to the exclusive jurisdiction of the Courts in each state.