Terms & Conditions - Business Website

These Terms & Conditions are to be read using the Client’s Personalised Schedule provided to the Client by Comkey which will fill in each ITEM.

BETWEEN

ComKey Consulting Pty Ltd (ACN 683 079 567) (ComKey)

ITEM 0 (Client)

(Collectively referred to as “Parties” in plural or “Party” in singular)

Recitals

1. The Client has requested ComKey to develop and host a website for the Client.
2. This Deed sets out the terms and conditions that govern the relationship between the Parties, and the Parties each respectively agree to be bound by the terms of this Deed.

Operative Provisions

1. Services Provided:

Website Design and Development:

1. ComKey will design & develop a Website for the Client including the number of pages found in ITEM 1 of the Client’s Personalised Schedule and including up to the number of Sections found in ITEM 2 of the Client’s Personalised Schedule.
2. Major Revision Cycles:
   
   1. Each Major Revision Cycle will be initiated when ComKey notifies the Client that the project has reached a suitable milestone for review - there will be the number of Major Revision Cycles as referred to in ITEM 3 of the Client’s Personalised Schedule
   2. During a Major Revision Cycle, the Client may request changes or provide any outstanding content. To streamline the process, all requests and materials must be consolidated into a single submission (e.g., within one email or document) per Major Revision Cycle.

Additional Revisions:

1. Requests beyond the number of designated Major Revision Cycles as referred to in ITEM 3 of the Client’s Personalised Schedule, or requests submitted outside of a consolidated format, will be considered ComKey’s absolute discretion - ComKey may elect to quote for such additional requests.

This policy ensures that the project timeline remains efficient while accommodating the Client’s feedback and input.

Monthly Hosting Services:

1. ComKey will provide Domain Hosting if required by the Client.
   
   1. The Client will select a domain name that is available for purchase.
   2. If the client requires ComKey will obtain the domain on behalf of the Client at the Client’s cost.
2. ComKey will provide Server maintenance.
3. ComKey will provide Daily backups (each lasting thirty (30) days).
4. ComKey will provide SSL Certificate Provision.
5. ComKey will provide Content Delivery Network (CDN) setup.

Website Updates:

1. The Client can request that ComKey perform the following updates:
   
   1. The amount of Minor Website Revisions per month referred to in ITEM 4 referred to in the Client’s Personalised Schedule.
   2. The amount of Major Website Updates per month referred to in ITEM 5 referred to in the Client’s Personalised Schedule.
2. For each update request received, ComKey will notify the client of the estimated time frame to have the request completed.
3. If the Client requires further website updates outside the scope of this Deed then they may make a request to ComKey, upon receipt of such request ComKey will provide the Client a quote based on their hourly rate at such time charged in 6 minute intervals. If the Client agrees to the quote provided by ComKey then ComKey will prepare the changes and provide the Client the appropriate invoice - ComKey will launch the changes to the Website once payment of such invoice is received by ComKey.

Security Monitoring & Plug-Ins:

1. ComKey will monitor the website for security vulnerabilities and notify the Client of issues encountered.
2. ComKey will keep the Website’s SSL Certificate Provision up to date.
3. If applicable, ComKey will update the Website’s plug-ins at the interval referred to ITEM 6 of the Client’s Personalised Schedule where required.

SEO Optimisation:

1. If applicable, ComKey will maintain the Website at the interval referred to in ITEM 7 of the Client’s Personalised Schedule to keep the Website aligned with features that ComKey is aware boosts search engine ranking. (“SEO”).
2. If applicable, ComKey will further monitor at the interval referred to in ITEM 8 of the Client’s Personalised Schedule to maintain accessibility compliance and website performance optimisation.
3. If applicable, ComKey will further provide the Client SEO Reports at the interval referred to in ITEM 9 of the Client’s Personalised Schedule providing suggestions on changes that could be made to improve search engine rankings and if the Client approves such suggestions ComKey will make such changes free of further charge.
4. Payment Terms

Website Design Fee:

1. The Client agrees to pay a fee referred to at ITEM 10 of the Client’s Personalised Schedule (“Full Upfront Payment”) for website design and development to ComKey, payable as follows:
   
   1. The fee referred to in ITEM 11 of the Client’s Personalised Schedule due upon the execution/acceptance of this Deed (“Initial Upfront Payment”).
   2. The fee referred to in ITEM 12 of the Client’s Personalised Schedule due upon completion of the Build Stage of the Website but prior to the Launch (“Closing Upfront Payment”).
2. The Client agrees that Launch shall not occur until the Closing Upfront Payment received by ComKey.

Monthly Hosting Fee:

1. The Client agrees to pay the monthly hosting fee referred to in ITEM 13 of the Client’s Personalised Schedule to ComKey within fourteen (14) days of receipt of each and every invoice from ComKey.
2. If applicable, the first invoice including a monthly hosting fee will be issued upon completion of the Free Trial Period (“First Monthly Payment”).
3. This Deed, apart from the provisions in clause 2 (a), clause 2 (d), will renew monthly from the date of the first invoice including the First Monthly Payment is issued by ComKey to the Client until a party terminates this Deed in accordance with clause 4 of this Deed.
4. The Client acknowledges that if payment is not made within fourteen (14) days of receipt of an invoice from ComKey that ComKey will take the Website offline and cease any and all services that ComKey have been engaged to provide to the Client. The Client acknowledges that the Website will not be brought online again until payment of all outstanding invoices are received by ComKey.
5. The Client will work in good faith to solve any billing disputes and warrants and acknowledges that if the Client contacts a card issuer and initiates a “chargeback” that ComKey will suspend any and all services and take the Website offline until the dispute is resolved - to reactivate any and all services the Client must pay all outstanding fees owing to ComKey.
6. The Client indemnifies and keeps indemnifying ComKey in respect of any and all losses, damage, costs, expenses and liabilities which may arise from a breach of this provision and this provision shall survive termination of this Deed and will not merge on completion.
7. Comkey shall provide the Client with website hosting that includes up to ten gigabytes (10GB) of storage space and up to 60,000 inodes for all website content, databases, and related files ("Storage Allocation"). This Storage Allocation represents the maximum amount of server space available to the Client under this Agreement.
8. Direct Debit Authority - by agreeing to Auto Pay or any other form of direct debit, you authorise ComKey Consulting Pty Ltd or their agent to debit your nominated account at the intervals agreed under these Terms & Conditions. If ComKey Consulting Pty Ltd increases its pricing in accordance with these Terms & Conditions, you agree that the direct debit amount will be adjusted automatically to reflect the new pricing.
9. Intellectual Property
   
   1. After Full Upfront Payment is received by ComKey, all intellectual property rights related to the final Website design that is Launched (excluding third-party tools and software) will be owned by the Client.
   2. The Client warrants and acknowledges that websites generally have a common structure and basis and that ComKey continues to own any and all design elements including but not limited to any features, ideas, layouts, templates, colour palettes, typography pairings and coding ComKey used in the creation of the Website.
   3. The Client warrants and acknowledges that everything they provide to be used in the design and build of the Website is either:
      
      1. Owned by the client; or
      2. Is copyright free and/or is not owned by any other entity.
   4. The Client indemnifies and keeps indemnifying ComKey in respect of any and all losses, damage, costs, expenses and liabilities which may arise from a breach of this provision and this provision shall survive termination of this Deed and will not merge on completion.
10. Termination
    
    1. After the Full Upfront Payment is received by ComKey, the Client may terminate this Deed with one (1) month written notice served on ComKey.
    2. After the conclusion of the Free Trial Period ComKey may terminate this Deed with one (1) month written notice served on the Client.
    3. Upon termination pursuant to this provision, the Client will retain ownership of the Website design as is on the date of termination.
11. Client Warranties
    
    1. The Client shall within a reasonable period of time after a request from ComKey provide anything reasonably requested for the design and build of the Website (“Request”) including but not limited to copy writing, media and design preferences with time being of the essence for this provision.
    2. If the Client fails to provide a response to a Request within one (1) month from the date the Request is sent to the Client by ComKey, then ComKey may, whilst retaining the Initial Upfront Payment, immediately terminate this Deed by notice in writing to the Client.
12. Electronic Execution Clause
    
    1. By the Client clicking accept quote the Client accepts these Terms and Conditions, the Client acknowledges and agrees that such action constitutes the Client’s electronic signature and legally binding acceptance of this contract.
    2. The Client specifically acknowledges and agrees that:
       
       1. Your digital acceptance through form submission or clicking to accept has the same legal effect as a traditional handwritten signature.
       2. No physical or scanned signature is required for this contract to be legally binding.
       3. The date and time of your digital acceptance will be electronically recorded and serve as the execution date of this contract.
    3. All parties consent to the electronic exchange of contract documents, including notices, amendments, and correspondence related to this contract.
    4. Electronic communication (such as email) shall be deemed sufficient for the purpose of exchanging contract-related information.
    5. The retention of electronic records shall comply with the requirements set forth in the Electronic Transactions Act 2000 (NSW).
13. Waiver
    
    1. The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Deed will not be construed as a waiver of any subsequent breach of the same or other provisions of this Deed.
    2. The failure or delay by either Party in exercising any right or remedy under this Deed will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
    3. Any rights or remedies provided in this Deed are cumulative and are in addition to any rights or remedies provided by law.
14. Miscellaneous
    
    1. By their acceptance of this Deed the Client declares that the Client has read, understood and agrees to be bound by Schedule 1 of this Deed.
    2. If any term, covenant, condition, or provision of this Deed is held by a court of competent jurisdiction to be invalid, void, or unenforceable, this Deed will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Deed, valid and enforceable. It is the Parties' intent that such provision be reduced in scope by the Court only to the extent deemed necessary by that Court to render the provision reasonable and enforceable and the remainder of the provisions of this Deed will in no way be affected, impaired, or invalidated as a result, if a court declines to amend this Deed as provided herein, the invalidity or unenforceability of any provision of this Deed shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Deed.
    3. This Deed contains the entire Deed between the Parties. All negotiations and understandings have been included in this Deed.
    4. This Deed and the terms and conditions contained in this Deed apply to and are binding upon the Parties's successors, assigns, executors, administrators, beneficiaries, and representatives.
    5. This Deed may not be amended in whole or in part without the unanimous written consent of all Parties and all such amendments must be made in writing.
    6. Any notice to be given under this Deed shall be in writing.
    7. The Parties hereby represent, warrant and acknowledge to each other that they have had the opportunity to seek and was not prevented nor discouraged by the other Partiesfrom seeking independent legal and financial advice prior to the execution and delivery of this Deed.
    8. The general rule of construction for interpreting a contract, which provides that the provisions of a contract should be construed against the party preparing the contract, is waived by the Parties hereto. Each Party acknowledges that such Party had the opportunity to retain legal counsel to participate in the preparation of this Deed.
    9. This Deed is not intended to and does not create or constitute an agency, partnership, joint or collaborative venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
    10. With the exception of Client’s payment obligations, neither party will be responsible for any interruption, delay or other failure to fulfill any obligation under this Deed resulting from acts of God, storms, flood, riots, fire, acts of civil or military authority, war, terrorism, epidemics, pandemics, shortage of power, telecommunications or internet service interruptions or other acts or causes reasonably beyond the control of that party. In the event of an occurrence of a Force Majeure, the party whose performance is affected thereby shall give to the other party notice of suspension as soon as reasonably practicable, stating the date and extent of such suspension and the cause thereof, and such party shall resume the performance of such obligations as soon as reasonably practicable upon the cessation of such Force Majeure and its effects. During a Force Majeure event, the Client shall be entitled to seek an alternative provider at the Client’s own cost. If a Force Majeure event continues to exist for more than twenty (20) consecutive days, each party shall be entitled to terminate the Deed with written notice.
15. DEFINITIONS AND INTERPRETATIONS

DEFINITIONS:

“Deed” means this Deed including Schedule 1 and the Clients Personalised Schedule.

“Build Stage” means the period of time ComKey is designing and developing the Website prior to Launch and is completed when ComKey notifies the Client in writing that the Build Stage is complete.

“Schedule 1” means the Schedule 1 to this Deed.

“Minor Website Revisions” means one of the following amendments to existing content that ComKey in their absolute discretion deem to be a reasonable request taking no more than fifteen minutes developer time to implement, test and launch: amending a singular Section, uploading media to a single Section, Header and Footer amendment, Logo & favicon replacement (provided by the Client) and any other request by the Client that ComKey in their absolute discretion deem to be a Minor Website Revision. This excludes posting any blog, event update or news post including one written and formatted by the Client, the Client will be provided with content management tools to independently publish and manage blog content and news updates.

“Major Website Updates” means one of the following amendments that ComKey in their absolute discretion deem to be a reasonable request taking no more than one hour to implement test and launch: amending a singular page, any changes to Website wide formatting including but not limited to colour palette, typography, section spacing, padding and formatting, image settings, button settings, page transitions, lightbox settings, background settings and any custom coding and any other request by the Client that ComKey in their absolute discretion deem to be a Major Website Update.

“Website” means the website that ComKey design, build and launch for the Client pursuant to the terms of this Deed.

“Launch” means launching the Website online such that the URL of the Website is able to be typed into the average internet connected browser to view the contents of the Website.

“Domain Hosting” means storing the Client’s Domain on a server to make it accessible on the internet.

“Domain” means the unique address that people type into their web browsers to access a specific website.

“Server Maintenance” means provision and updating web servers to host Client’s Website content.

“Daily Backups” means an image of the Client’s Website taken and stored daily for a period of thirty (30) days.

“SSL Certificate Provision” means the provision and installation of a Secure Sockets Layer Certificate for both Client Website Domains and Client email servers.

“Content Delivery Network (CDN)” means the caching of the Website content in different data centres around the world in an effort to speed up the performance of the Website for geographically dispersed traffic.

“Free Trial Period” means the period commencing on the Effective Date and ending on the earlier of the end of the period referred to in ITEM 14 of the Client's Personalised Schedule if applicable after Launch has occured, or four (4) months after the Effective Date. This ensures the trial period concludes within a reasonable timeframe, regardless of delays in Launch which may occur due to factors outside ComKey’s control.

“Section” means small reusable component of the Website including but not limited to a Header, Footer, Hero, Testimonial, Modal/Pop-up, Image Gallery, Navigation Menu or any section of the Website containing no more than five (5) paragraphs of text and five (5) media files.

"Goods and Services Tax" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) as amended or any other applicable law.

INTERPRETATIONS

In this Deed, unless the context otherwise requires, the following rules of interpretation shall apply:

1. Words referring to one gender include every other gender.
2. Words referring to a singular number include the plural, and words referring to a plural include the singular.
3. Words referring to a person or persons include companies, firms, corporations, organisations and vice versa.
4. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
5. Headings and titles are included in this Deed and Schedule 1 for convenience only and shall not affect the interpretation of this Deed or Schedule 1.
6. Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Deed and the events contemplated by it.
7. A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.
8. A reference to a Deed or document is a reference to that Deed or document as amended, replaced, supplemented or novated from time to time.
9. Any amounts of money described in this Deed are in Australian dollars unless specifically stated otherwise.

Schedule 1 of Terms & Conditions of ComKey Consulting

The following Terms of Service (“TOS” or “Deed”) apply to all Services and/or content provided by ComKey Consulting Pty Ltd (ACN ComKey Consulting Pty Ltd (ACN 683 079 567) (ComKey)) (“ComKey”, “we”, “us”, “our”). The terms “you”, “your” or “customer” shall refer to any individual or entity who accepts these TOS through execution/acceptance of a ComKey Consulting Deed. These TOS are effective as of the date of your acceptance of these TOS (“Effective Date”).

1. APPLICATION OF TERMS

1.1. These TOS apply to all Services provided by ComKey to you throughout the entire Term of any contractual relationship between you and ComKey.

1.2. These TOS, together with ComKey Consulting Deed executed/accepted by you, represent the entire agreement between ComKey and you and supersede any other agreement previously established between you and ComKey.

1.3. In these TOS we mention certain legal rights you may have, if you are a consumer. These TOS do not affect or change these legal rights. For the avoidance of doubt, if you use the services we provide for business purposes, you expressly acknowledge and agree that you will be considered a non-consumer for the purposes of this Deed. Consequently, statutory consumer protection laws and regulations shall not apply to the terms and conditions outlined herein.

2. ORDER. APPROVAL OF ORDER BY ComKey

2.1. In these TOS the purchase (including renewal) of Service(s) is referred to as an “Order”.

2.2. If you are an individual you must be at least 18 years of age at the time you place your Order. By submission of an Order you declare that you (i) are at least 18 years old or are not an individual, (ii) have the legal capacity to enter into an Deed with ComKey, (iii) are not barred from purchasing and/or using Service(s) under the laws and sanctions lists of the applicable jurisdiction(s).

2.3. If you place an Order on behalf of a legal entity, you represent and warrant that you have the legal authority to bind such legal entity to these TOS. In the event that ComKey establishes that you do not have the legal authority to bind such a legal entity you will be personally liable for the obligations under these TOS.

2.4. By placing an Order to purchase the Services you represent and warrant that: (i) you are not restricted to enter into an Deed with ComKey; (ii) you comply with applicable trade, economic and financial sanctions laws, regulations, embargoes, and/or restrictive measures; (iii) neither you nor the entity you represent are a resident in or incorporated under the laws of a sanctioned country or designated on any sanctions list; and (iv) you are not subject to any other restrictions, imposed by an authority under the laws of the applicable jurisdiction.

3. SERVICES

3.1. For the purposes of these TOS “Service” or “Services” means any and all services provided by or purchased via ComKey under these TOS including, without limitation, any web-design or website related services, any of our subscription plans for hosting services, email services, CDN services, additional features, website security services, domain name registration services, support services, third-party products and/or services and any other services which may be provided from time to time.

3.2. We may modify, update or upgrade the Services and/or add, remove or modify any software, functionality or configuration installed on or used by the Services at any time with or without prior notice. If such modification, update or upgrade results in a major change(s) of the functionality of the Service(s) purchased by you, we will notify you of the major change(s). You may object to such major change(s) by terminating the Deed immediately upon written notice to ComKey within fourteen (14) days of being informed of the major change(s). You will bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software as well as any other items you deem necessary to use the Services shall be compatible with the Services. We will not be obliged to modify the Services to accommodate your use. ComKey may transfer your hosting and/or website from one data center to another or from one server functionality to another, including to such in another geographic location, or modify certain software configurations when deemed necessary by ComKey in order to ensure the quality, continuity and security of the Services and/or the infrastructure. In cases where such transfer is done by ComKey due to technical issues and/or in order to ensure the continuity and security of the Services, ComKey may not be able to inform you prior to such transfer. In any other case of transfer to another data center ComKey will provide reasonable notice before moving your hosting account to a new data center. If the change of the data center results in storing the customer data located in your hosting account in a different jurisdiction, you may object to such a change by terminating the Deed immediately and upon written notice to ComKey within fourteen (14) days of being informed of the change of the data center.

3.3. The proprietary and third-party software we use as part of the Service(s) will be provided as-is and the Service(s) will be subject to availability.

3.4. We may assign an Internet Protocol (“IP”) address for your use. You shall have no right to use that IP address except as permitted by ComKey in our sole discretion in connection with the use of the Service(s). You do not have any ownership right over any IP address assigned to you by ComKey. We reserve the right to change or remove any and all such IP addresses in our sole discretion. You acknowledge and agree that shared IP addresses assigned to you by ComKey may be used by other customers as well.

4. HOSTING SERVICE UPTIME

4.1. ComKey’s Hosting Service Uptime sets out the level of availability of the hosting Services you can expect from us. To the maximum extent applicable under law and without affecting your rights as a consumer if applicable, this Hosting Service Uptime provision is your sole and exclusive remedy for downtime - a period of time during which your website is unavailable due to a network, software, infrastructure or equipment failure.

4.2. In our experience our hosting Service uptime is 99.9% on a monthly basis. If we fall below this hosting Service uptime, you may request, via written correspondence served on ComKey, compensation amounting to 5% of your Monthly Hosting Fee paid for the respective month.

4.3. The following events do not count towards our calculation of a hosting Service uptime:

Scheduled maintenance;

Emergency maintenance, infrastructure and software failure remedied under 1 hour;

Downtime caused by DNS and/or IP address changes;

Distributed denial of service (DDoS) attacks, hacker attacks, and other similar events;

Downtime caused by your actions or inactions, your own configuration, or third-party applications you use;

Downtime caused when you reach the maximum resources allocation for your plan;

Downtime caused by your violation of these TOS or any other policy announced on our website;

Downtime during upgrade/downgrade of your Website;

Downtime during processing of your technical support request(s);

Force majeure or any event beyond our control.

5.1. Our calculation of the hosting Service uptime is based on our internal records. We will not accept third-party reports as evidence that you are entitled to compensation under our Hosting Service Uptime provision.

6. USE OF SERVICES. CUSTOMER RESPONSIBILITY

6.1. You acknowledge and agree that your use of the Service(s) and any of your content uploaded, stored, published and displayed on or through the Service(s) shall be in compliance with these TOS and all applicable laws. You shall implement any restrictions necessary in order to prohibit unauthorised access to your content by any third party or in any jurisdiction where such restrictions are required in order to comply with applicable laws.

6.2. You may not upload, store, publish and display on or through the Service(s) any personal data, private or any other personally identifiable information, images, videos of minors or of any third party, without lawful ground - for instance the consent of said party (or a parent's consent in the case of a minor). Any content you provide to ComKey for use with the Services will be used by ComKey with the obligation on you to obtain all relevant consents and are complying with any applicable laws prior to providing such content to ComKey.

6.3. You shall not use the Service(s) for hosting websites for high-risk activities where the interruption or malfunction of the Service(s) could lead to serious consequences, including but not limited to personal injury, death, environmental damage, etc. You acknowledge and agree that we are not responsible for any liabilities arising from such use of the Service(s). Examples of high-risk activities include but are not limited to nuclear facilities, air traffic control, life and health support, etc. Please refer to our AUP for detailed information on the rules and guidelines for using the Service(s).

6.4. When using the Services, you shall ensure that neither you nor any of your agents, employees, contractors, sub-contractors or persons under your control (“Agents”) make use of the Services to ComKey’s detriment or that of other ComKey customers.

6.5. You shall indemnify, defend and hold harmless ComKey, and its officers, directors, shareholder(s), beneficial owner(s), employees, agents and representatives against any and all damages, claims, liabilities, losses and other expenses, including without limitation reasonable legal’ fees and costs, whether or not a lawsuit or other proceeding is filed, that arise directly or indirectly from your and/or your Agent’s acts or omissions.

6.6. You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorisations necessary to use the names, marks or any content, materials which are used by you on, or transmitted through, or provided to ComKey to use in the Services.

6.7. You shall provide to ComKey, at your cost, any information, resources or facilities reasonably requested by ComKey for the delivery of the Service(s) and, where necessary, ensure that your Agents cooperate fully and promptly with ComKey to such aim.

6.8. Any instructions supplied by you to ComKey must be complete, accurate and clearly legible. We shall not be liable for any errors caused by any failure from your side to provide complete and accurate information. It’s your obligation to follow our instructions and to cooperate with us for the proper provision of the Services.

6.9. You acknowledge and agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer or sell any content, software and related technologies, or Services made available by ComKey, except where explicitly authorised by us.

7. CUSTOMER CONTENT. MONITORING OF CUSTOMER CONTENT

7.1. You may upload, store, publish, display and disclose information, text, files, emails, images, designs, graphics, photos, videos, sounds, software and other content on or through the Services (“Customer Content”). Customer Content includes any content provided by you or your agents or by users of any of your websites hosted through the Services (“Customer Websites”). You are solely responsible for any and all Customer Content and any transactions or posts or other activities conducted on or through Customer Websites. By posting or disclosing Customer Content on or through the Services, you represent and warrant to ComKey that (i) you have all necessary rights to display and disclose such content, and (ii) your posting or disclosure of Customer Content does not violate the rights of ComKey or any third party.

7.2. ComKey shall not exercise control over and accepts no responsibility for Customer Content or any other information passing through the Services. ComKey may monitor Customer Content, but is under no obligation to do so. In particular, ComKey may conduct monitoring of Customer Content on a random basis or pursuant to third-party reports, requests, complaints or notices for the purpose of tackling dissemination of any illegal content or content in violation of our TOS. In any of these cases, we will conduct a human / technology review of the Customer Content in question and will analyse it in view of our TOS and applicable law. If any material part of your Customer Content is in violation of these TOS ComKey reserves the right to review your Customer Content and immediately take any corrective action, i.e. impose restrictions, including without limitation removal of part or all of the Customer Content or Customer Websites or termination of any and all Services with no refund. ComKey will act in a diligent, objective and proportionate manner in applying and enforcing the corrective actions, with due regard to the rights and legitimate interests of all parties involved, including your fundamental rights. You hereby agree that ComKey shall have no liability due to or arising out of any corrective action that ComKey may undertake when such action is required under the applicable legislation or in order to prevent access to illegal content or other content infringing ComKey’s TOS.

8. TECHNICAL SUPPORT

8.1. Unless explicitly stated otherwise, we provide technical support for issues related to functionality of any Service(s) purchased from and provided by us. Our technical support is available for all customers and is provided on an as-is, as available basis.

8.2. You may request technical support through any of the communication channels you have with ComKey.

8.3. If you request technical support, you will be required to provide as much information as possible to help us investigate the reported issue and you agree and grant us full access to your Customer Account and/or Customer Content. It is your obligation to perform and store a backup of your data and files prior to providing any of the same to ComKey and prior to requesting technical support. You are solely responsible for any instructions you provide to us as part of your technical support request. You understand and agree that any modifications we perform in order to address your technical support issue may affect the functionality of your website(s) and/or Service(s).

8.4. We retain the right not to process your technical support request(s), if: (i) you violate these TOS; (ii) you are abusive towards our employees, subcontractors or third-party service providers; (iii) the volume of your request(s) exceeds that of similarly situated customers or is outside the scope of our free technical support, as defined in Section 8.5 below; (iv) the need for technical support Services is due to any modification or attempted modification of the Services made by you or any third party outside of ComKey’s control, or your failure or refusal to implement changes recommended by ComKey. We may refuse to perform any request that requires changes not compatible with the Services or not related to them or that might create a security risk or deteriorate their performance.

8.5. Unless otherwise described on our website, we provide free technical support for the following issues related to our Services:

Issues related to the functioning and functionality of any of the Services;

Issues related to the proper functionality of the Services, including tools and features provided by ComKey, such as caching, staging, integration for currently supported SSL certificates, backup, CDN, DNS and other;

Assistance related to settings and proper usage of the tools and features provided by us;

Inquiries related to the registration, renewal, and transfer of domains to us, DNS. For issues related to domain transfer from ComKey to another hosting provider or registrar, our support is limited to ensuring the domain is transferable per the requirements for the respective domain extension.

8.6. If you request technical support for issues outside the scope of our free technical support Services, described in Section 8.5, we may provide you with assistance at our own discretion, subject to availability and additional fees. Such issues include but are not limited to:

Issues related to the installation of third-party scripts/applications not provided by ComKey;

Website related inquiries such as database optimisations, benchmark tests, installation of new software on the server functionality, changing the current setup of the server functionality you use, etc.;

Inquiries related to the functioning of scripts, optimisations, SEO services, themes or extensions;

Website security and/or speed audits and malicious code clean-up issues.

8.7. We will inform you, and receive your consent, prior to charging you for technical support. Fees for technical support must be paid in advance.

9. BACKUP SERVICES

9.1. You acknowledge and agree that it is your responsibility to regularly backup all your Customer Content in order to prevent potential data loss.

9.2. You agree that you will keep independent backup copies of your all content in your Service(s) in addition to those we maintain.

10. ComKey CONTENT. INTELLECTUAL PROPERTY RIGHTS

10.1. ComKey retains all rights, title, and interest in and to the Services it provides, including the ownership of any intellectual property rights related to the provision of such Services. These TOS do not grant you any right to reproduce, modify, distribute, publicly display, or perform the software included in the Services or any other right to the Services not explicitly set forth herein. All trademarks, graphics, images, videos, templates, software (including updates, improvements, modifications, and enhancements), script, source code, and other content that are part of the Services (“ComKey’s Content”) are owned by or licensed to ComKey. You acknowledge and agree not to modify, copy, reproduce, download, transmit, distribute, sell, licence, publish, broadcast, create derivative works from, or store ComKey’s Content without our express prior written consent.

10.2. Unless otherwise set out in the TOS, you represent and warrant that you own or have otherwise obtained all necessary rights and permissions over the Customer Content. You also represent and warrant that your Customer Content and its use will not violate any applicable law and third-party rights. You grant us a limited, non-exclusive, royalty-free, worldwide, transferable, sublicensable licence to reproduce, modify, use, disclose, distribute, and display the Customer Content to provide the Services. We may use and disclose the Customer Content in an aggregated and anonymised form for legitimate business purposes (e.g., service maintenance and improvement, research, etc.).

10.3. You are welcome to provide us with a testimonial for the Services in connection with your use of the Services. You provide an irrevocable licence to ComKey that ComKey may reproduce, use, and display the Customer Content or your Website to promote ComKey’s work completed in providing you the Services and further to display the ComKey logo and link to the ComKey website on your Website. If you submit feedback to us concerning your ideas and suggestions related to the Services, we shall have the right to use that information to improve our business processes. You have no right to any intellectual property based on an improvement to our business based on this feedback. You acknowledge and agree that we may, at our discretion, use the testimonial or your Website to promote the Services including posting the same to our website or to any of our social media accounts.

11. WARRANTIES

To the maximum extent allowed by applicable law and without affecting your rights as a consumer if applicable, you acknowledge and agree that the Services are provided by ComKey as-is and you assume all risks and liabilities arising from or relating to your use of and reliance upon the Services, and that ComKey makes no representation or warranty with respect thereto. ComKey hereby expressly disclaims all representations, warranties and conditions regarding the Services, whether express or implied, including any representation or warranty in regard to quality, performance, non-infringement, commercial utility, merchantability or fitness of the Services for a particular purpose or any warranty any Services will create any additional profits, sales, exposure and brand recognition for you. In addition, ComKey expressly disclaims any express or implied obligation or warranty of the Services, that could be construed to require ComKey to provide Services in such a manner to allow the customer to comply with any law, regulation, rule or court order applicable to the actions or functions of the customer. Without limiting the generality of the foregoing, we do not warrant that the Service(s) will meet any or all of your needs; will operate in all of the combinations which may be selected for use by you; or that the operation of the Service(s) will be uninterrupted, error-free or completely secure. No ComKey employee, supplier or subcontractor is authorised to make any warranty on our behalf and if they make such warranties ComKey shall not be bound by them.

12. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, and without affecting your rights as a consumer if applicable, you agree that you will not under any circumstances, including negligence, hold ComKey, its officers, directors, employees, licensors, agents, subcontractors and/or third-party service providers liable for any direct or indirect, incidental, punitive or consequential damages of any nature and type suffered by the customer or any other third party, including, but not limited to, damages for loss of profits, savings, revenue, business, data, or any other pecuniary loss that may result from: (a) delays, malfunctions, interruption in provision of the Service(s), suspension or termination of the Service(s) due to events beyond our reasonable control (for example: force majeure, third-party conduct/acts, including ComKey’s licensors and suppliers, faults and malfunctions of the machines, software and other equipment, whether owned by us or our licensors/suppliers; acts and/or omissions made by customers and in contrast with the obligations undertaken under these TOS); (b) data loss due to equipment or software failure; (c) any information, data, content in or accessed through the Services or through our website; (d) any action, information or instruction provided as part of our technical support Services; (e) your use of our website and/or the Service(s); (f) property damage of any nature; (g) unauthorised access to or use of the Services. You agree that the foregoing limitations apply whether based on warranty, contract or tort or any other legal theory and apply even if we are aware or have been advised of the possibility of such damages. In no event will we be liable to you or any party claiming through you, in the aggregate with respect to any and all breaches, defaults, or claims of liability under these TOS or under any other Deed or document for an amount greater than the fees actually paid by you to us for the respective Service(s) during the twelve month period preceding a claim giving rise to such liability. No action, regardless of form, arising out of these TOS or out of the Services may be brought by you more than three (3) months after the event which gave rise to the cause of action.

13. INDEMNITY

You acknowledge and agree to indemnify, fully compensate, defend and hold harmless ComKey, our affiliates, subsidiaries, parent and related companies, licensors and any third-party service providers and each of their respective officers, directors, employees, shareholders, beneficial owners and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities and further any suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable legal fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of our website and/or the Services; (ii) any violation by you of these TOS, our policies or documents which are incorporated herein, or any law; (iii) any breach of any of your representations, warranties or covenants contained in these TOS or additionally made to us; (iv) your violation of any third-party right, including but not limited to any intellectual property or other proprietary right; and/or (v) any acts or omissions by you. For the purpose of this clause only, the term “you” as set out in subparagraphs (i) through (v) includes you,Agents, visitors to your website, and users of your products or services. The terms of this Section shall survive the termination of the Deed and will not merge on completion.

14. COMPLAINTS AND NOTICES

14.1. If for any reason you wish to file a complaint regarding the Services and/or use of our website, and/or our compliance with the applicable laws, you may send your complaint to us via email at compliance@comkeyconsulting.com.au.

14.2. All complaints and notices must be in writing and clearly indicate the name and contact details of the complainant/notifier. If you have relevant documentary evidence to support your complaint or notice, it should be еnclosed thereto. Evidence submitted should be as concise and relevant as possible.

14.3. We will take care to review, investigate and respond to any complaint(s) and notice(s) fairly and thoroughly. ComKey will provide a written answer within ten (10) business days from receipt of the respective complaint or notice. That period may be extended where necessary, taking into account the complexity of the matter and/or the volume of provided information.

15. CHANGE OF TOS

15.1. ComKey may change these TOS at any time with notification (by email and/or in your Client Area) at least fourteen (14) days prior to the effective date of the changes.

15.2. If you do not agree to the changes in these TOS, you may cease using the Services and terminate this Deed within fourteen (14) days as of the date of our notification providing us thirty (30) days notice in writing.

15.3. To the extent permitted by applicable law, continued use of the Services after you have received a notification for changes to these TOS will be considered as acceptance of such changes, unless you have sent us a termination notice within the fourteen (14) day period specified above.

16. IMMEDIATE TERMINATION

16.1. You acknowledge and agree that any third-party Services offered by us, including domain name registration, is subject to suspension, cancellation, termination, transfer or modification pursuant to the terms of the respective third-party service provider and you will not hold ComKey liable for any suspension, cancellation, termination, transfer or modification pursuant to the terms of the respective third-party service provider.

16.2. Without prejudice to the provisions laid down in other clauses of thеsе TOS, ComKey shall be allowed to terminate this Deed with or without notice with immediate effect if (i) you fail to pay any fees due; (ii) you breach these TOS, or any other policy incorporated herein by reference, or any applicable law; (iii) you repeatedly infringe any policy incorporated herein or announced on our website; (iv) in case of any action and/or omission, failure and/or malfunction caused by you or your Agents which damage the server functionality used as part of the Service(s) or other ComKey customers; (iv) you exceed the Service-specific limitations set by us or the respective third-party service provider; (v) you disclose false or misleading allegations that may negatively impact our reputation; (vi) transfer all or part of your obligations and/or rights under this Deed to third parties, without notifying us and receiving express written consent from us in advance; and (vii) you are abusive towards us, our employees, third-party vendors or subcontractors.

16.3. ComKey may also terminate this Deed by 30 days written notification as of the date of its receipt if (i) according to ComKey's reasonable opinion, your use of the Service(s) requires excessive ongoing technical support; (ii) ComKey determines in good faith that continued provision of the Service has become unfeasible for technical, legal, regulatory, economic or any other material reason.

16.4. ComKey may discontinue provisioning of certain Service(s) or terminate this Deed, if a third party ceases (i) the provision of the respective Service; (ii) to make components of the Service available to us or terminates the Deed concluded with us for the respective Service.

16.5. It is important to understand that certain Services are bundled together. As a result, termination of one of the bundled Services may result in immediate termination of the rest of the bundled Services.

16.6. Upon termination of the Deed, any information, data, content and files stored by you in your Website shall be deleted. We may, but are not obliged to, keep backup data for terminated Services for up to 60 days after termination and provide you with access to that data upon request and subject to availability. IP addresses and server functionality resources are recycled. It is your obligation to ensure that you arrange to migrate your website(s) or Customer Content off the server functionality we use and relinquish use of the IP address assigned to you in connection with the use of the Service(s) prior to termination. We have no obligation to provide any Service(s) to you including forward to you any email(s) or provide any backup(s) following termination of the Deed.

17. Confidentiality

17.1. Each party agrees to make full endeavors and take all reasonable measures to keep confidential the confidential data and information of the other party made available to or given access to it in the course of providing or accepting consultancies and services (collectively “Confidential Information”). Neither party shall disclose, give or transfer any such Confidential Information to any third party without the other party’s prior written consent.

17.2. Both parties agree and acknowledge that any and all oral or written materials exchanged pursuant to this Deed are of a confidential nature. Each party shall keep confidential all such documents and not disclose any such documents to any third party without prior written consent from the other party, but the above confidentiality obligations shall not apply to the information which: (a) is publicly available (through no fault of the recipient); (b) is disclosed under requirement of applicable laws; (c) is disclosed by either party to its legal or financial consultant with respect to the transaction contemplated under this Deed, who shall also undertake the confidential obligations of this provision; or (d) is provided by you to ComKey for the purposes of being used in your Website or published as apart of the Services. Any breach of confidentiality obligations by any of the personnel of either party or of the institutions engaged by it or any Agents shall be deemed as a breach hereof by such party, and such party shall undertake the defaulting liabilities under this TOS.

18. Update to Payment terms

18.1. ComKey may update the pricing of its Services with one (1) month written notice (“Notice Period”) served on you applicable to your next billing cycle.

18.2. Should you not agree to continue engaging ComKey for its Services at the updated price provided in such written notice then you may terminate the TOS with written notice served on ComKey within the Notice Period.

19. SURVIVAL

Sections 5, 6.5, 11, 12, 13, 17 and 19 of the TOS shall survive the termination of this Deed and not merge on completion.