Terms Of Service

By purchasing a Avail Digital Marketing LLC service, 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 Avail Digital Marketing LLC (the provider/”Avail”). (Last updated 31 August, 2017.)

GENERAL TERMS OF SERVICE

1. Avail designs, creates, builds and hosts websites, sales funnels, social media campaigns and provides online and telephone support.

2. The Client has the right to, title, and interest in a web and social media content containing intellectual property owned by the Client together with, but not limited to textual content, video and/or audio. Clients and Resellers acknowledge that any design created by Avail or its resellers using the Avail CMS templates remain the property of Avail and cannot be replicated elsewhere.

3. The Client warrants Avail to host its website unless otherwise advised in writing per the relevant notice periods.

4. Avail websites are built either in its own proprietary CMS platform or on an alternate open source CMS platform.

5. This agreement shall take full force and effect as and from the date of the Client’s purchase of our products and services and upon making payment the Client is deemed to have read and understood these terms.

6. Avail shall supply to the Client all services necessary to effectively execute the website, social media management and/or all ongoing services and make available for a fee to the Client the services of Avail to provide to the Client online support, telephone support for the ongoing administration and maintenance of the Client’s website hosted by Avail in circumstances where the Client requests such support.

7. This Agreement may change from time to time. In the event that this Agreement changes, Avail 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 favor of Avail, 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 Avail whereupon Avail 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 Avail are 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 Avail whereupon Avail 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.

8. Avail has a Fair Use policy, and the Client upon executing this Agreement is deemed to have read and understood the Fair Use policy of Avail and agreed to be bound by it.

9. The Fair Use policy of Avail may change from time to time. In the event this policy changes Avail shall advise the Client in writing within 7 days of the change. In the event Avail 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 Avail whereupon Avail 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.

10. Notwithstanding anything contained in the Fair Use policy of Avail as set out in Clause 6 of this Agreement, the Client warrants to Avail that it’s the lawful owner of, or has permission from the lawful owner to publish all intellectual property published on its website that it has requested Avail to host. In the event that the Client, in allowing Avail to host its website breaches any law of, but not limited to any State of Arizona, USA and/or the city of Phoenix, Avail may terminate this Agreement without prejudice to the rights of Avail to seek one or all of compensatory damages indemnities relating to liability incurred as a result of the Client’s aforementioned breaches.

11. Avail may terminate the Agreement without notice to the Client in the event Avail 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 Avail as set out above

• Notwithstanding the terms of Fair Use policy of Avail any matters that is either offensive and/or obscene, seditious, blasphemous, defamatory or inappropriate in the opinion of Avail

• Repudiatory conduct as defined under Clauses 6.

• Any outstanding invoices not paid to Avail within the specified payment terms under Clause 6.

12. The Client warrants to Avail that it shall not by its conduct frustrate Avail from hosting its website or withhold the necessary support to Avail for the effective hosting of the website. Avail 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 Avail including but not limited to force majeur.

13. Avail warrant to the Client that 99.99% 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. Avail 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.

14. In the event Avail terminates this Agreement as a result of any breach by the Client and withdraws its hosting services, whereby the Client’s web page is no longer hosted on the internet:

15. Avail will not be liable for any loss or damage arising from the withdrawal of the hosting services from the Client.

16. Should any breach be resolved and the Client desirous of reactivation of services, Avail will charge a reactivation fee of no less than $299 including GST to cover Avail’s reasonable costs incurred as a result of the breach, to be paid in full before reactivation.

17. Should a site be deactivated for a period in excess of 6 month for any reason a new website would need to be purchased at a cost to be advised at such time in accordance with current applicable pricing structures.

18. Avail will advise the Client of any foreseeable interruption to the hosting service, and provide up-to-date network status and service availability information at http://status.web123.com.au.

19. The Client agrees to advise Avail of any change of contact details. Avail 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.

20. In this Agreement Avail shall provide services to the Client for fees as advertised within the Avail website at https://www.availdm.com or as proposed in our written agreement.

21. Avail 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 six or twelve months of ongoings

will be issued to the Client no less than seven days before the due date. Any unpaid invoices will result in the suspension of all services as per Clauses 11 – 14 (above).

22. Avail reserves the right to increase ongoing fees related to the hosting and technical support of Client websites. Annual price increases may occur at any time in accordance with service package alterations and any changes in technology and the infrastructure required to maintain the Client’s website and/or email services.

23. Avail reserves the right to classify a project as ‘abandoned’ should no contact be made by the Client for three months or more. All abandoned projects will be archived for a further period of three 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.

24. Any abandoned projects for which a deposit has been paid will not be refunded, and any work completed by Avail remains the property of Avail.

25. Any extra hours completed by Avail 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 Avail reserve the right to engage its debt recovery agency to recoup monies owing on its behalf.

26. Should additional changes be requested outside the scope of the project brief or allocated project hours are reached, additional fees will apply. Avail warrants that an estimate will be provided for approval before any additional work is commenced.

SERVICE PROVISION AND COSTINGS

1. Avail 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.

2. Avail shall provide an ongoing support allocation inclusive in its regular ongoing costs with limits as defined under Clauses 6.1. Any support incidents raised beyond the terms of Clause 20-28 will be charged at a rate of $149 per hour including GST. Avail reserves the right to waive additional charges for support at its discretion. The Client will not be charged for any support incidents determined by Avail to be attributable to a problem with the underlying software or an error on the part of Avail.

3. Avail 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.

4. The Client warrants to Avail and agrees to pay Avail in full, in advance, at all times. No work will be commenced until payment has been received.

5. Execute all documentation necessary to allow Avail to directly debit from the Client’s credit card monthly charges for all and any products and/ or work undertaken by Avail for the Client.

6. Availability of funds: Ensure that valid credit card details are supplied to Avail prior to the first of each calendar month, with sufficient funds to make payment to Avail for any monies due and owing.

7. Should payment not be made by or on the due date of invoice, Avail reserve the right to suspend any and all services and at its discretion charge a reactivation fee of $299 before reinstating these services.

8. Should payment of any recurring monthly fees be declined where follow up from our Accounts Team is required for two or more consecutive months, Avail reserve the right to charge the Client twelve months of website hosting in advance, in addition to a $99 administration fee for alterations made to the account.

9. Make payment upon receipt of a tax invoice from Avail for all charges including but not limited to website hosting, technical support, SEO, websites and marketing packages, which shall all be charged in advance.

10. Make payments to Avail upon receipt of a tax invoice from Avail for excess charges for messages or data which shall be charged in arrears.

11. Make payments punctually on the first of each calendar month in accordance with the billing periods which shall be based on calendar months.

CANCELLATION:

1. In the event this Agreement is terminated by the Client, the Client agrees to pay to Avail an amount to be costed on the basis of all services provided by Avail that remain unbilled as at the date of termination. Any fees paid in advance for monthly hosting is non-refundable.

2. Provide to Avail 30 days written notification for any cancellation request, whereby the following calendar months’ hosting will also be charged as a

final invoice. 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. If immediate cancellation is requested, Avail reserve the right to charge the Client one calendar month’ s hosting (in addition to any current amounts owing) before actioning the cancellation request. If the cancellation cannot be actioned due to non-payment, monthly fees will continue to incur and notice will need to be provided again once the account is up to date.

3. 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 Avail.

FAIR USE, REPUDIATORY CONDUCT AND DISPUTES

1. Dependant upon the ongoing care plan chosen, Avail generally applies fixed limits to the amount of support we give to our Clients per Avail’s proposal. The Client understands that any support required over and above the allocated support will be charged in arrears at the end of each month, at an hourly rate of $149.

2. The Client agrees to be bound by Avail’s Fair Use policy outlined in this section.119

3. The Client agrees not to engage in excessive contact, which includes but is not limited to:

• Repeatedly asking for assistance with matters outside Avail’s control, responsibility, or remit, after Avail has advised the Client that this is the case, including but not limited to: basic computer assistance, assistance with emails on devices other than a desktop, business advice or other technical assistance not related to Avail’s services.

• Repeatedly and unreasonably asking for assistance with matters with which Avail 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 Avail’s support hours where urgency is determined at the sole discretion of Avail.

4. If Avail 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 Avail at its sole discretion may as a result undertake any or all of the following actions.

5. Apply a restriction on contact time permitted with the Client.

6. 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.

7. Suspend and/or terminate the Client’s provision of services, not before a third warning has been given.

8. Avail 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.

9. The Client agrees that any dispute it wishes to make to a notice of excessive contact must be provided in writing to Avail within 14 days of the issue of the notice.

10. The Client agrees not to engage in repudiatory conduct, which includes but is not limited to:

• Abusive behavior towards staff, agents, partners or directors of Avail, which includes threatening behavior and/or speech.

• Defamation of staff, agents, or directors of Avail, or of Avail or related businesses.

11. The Client agrees that in instances of repudiatory conduct, Avail 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.