Through Webation Active (including Active Business, Active School and Active News) (the "Services") Webation Pty Ltd ("Webation") provides web site operators and other individuals a variety of online tools / software and resources to build and manage their website and to collect visitor e-mail addresses and to create, launch, and manage online e-mail campaigns. This service may not be used for the sending of unsolicited e-mail (sometimes called "spam"). See our Anti-Spam Policy.

The following are the terms and conditions for use of the Services. By checking the "I have read the Webation Active Terms of Use statement. I accept these terms and conditions" box on the Free Trial or Signup page or after logging in for the first time, you accept these terms and conditions.

 

1. TERM OF CONTRACT

a.      The Services are provided subject to this Agreement, as it may be amended by Webation, and any guidelines, rules or operating policies that Webation may establish and post from time to time (the "Agreement"). By posting updated versions of the Agreement at the Webation web site, or otherwise providing notice to you, Webation may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.

b.      The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.

c.      The Services enable individuals to develop and maintain corporate web sites, small business web sites, and community sites and also allow users of these websites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail communications with visitors and other targeted prospects.

d.      Both the number of e-mail messages sent and the number of KiloBytes of data transferred are metered by Webation. Email accounts allow you to send an unlimited number of e-mail messages, although fair usage applies. In relation to sending bulk emails the services, the total KiloByte data transfer of each message (without an attachment) can be no more than 1000kb.

e.      All email delivery prices are subject to change at any time. All fees paid to Webation for Webation Active are non-refundable, unless an account is terminated by Webation for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by Webation, unless other payment arrangements have been made between you and an authorized Webation Active representative. You hereby authorize Webation to charge your credit card for such amounts including monthly fees to access Webation Active and also fees associated with sending bulk emails. Fees are payable in US dollars or Australian dollars. If Webation Active is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and remaining aware of the Fees charged by Webation.

f.       For all accounts, Webation may charge an account re-activation fee should an account need to be re-activated by customer after an account has become de-activated due to non-payment or an untimely authorization for payment.

g.      You must complete the registration form on the Free Trial page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an e-mail address and password for your Webation Active account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. Webation Active reserves the right to refuse registration of, or cancel for any reason, accounts it deems inappropriate.

h.      It is understood that Webation makes no guarantee that websites or HTML messages will be rendered properly on all recipients' web browsers or e-mail programs, due to the wide variety of HTML generation tools available. Webation makes every attempt to make sure that all e-mail messages sent through our servers follow e-mail standards, but we cannot guarantee that messages will look consistent across all e-mail platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML e-mail messages, it is expected that recipients of your message using a non-Microsoft e-mail application may have difficulty reading your message. For best results Webation recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.

 

2. RESTRICTION AND RESPONSIBILITY

a.      Web sites developed using Webation Pty Ltd’s (“Webation”) online software (“Webation Active”) are to be used only by the company that signed up to use the online software.

b.      You must not use Webation Active to develop web sites for multiple others including but not limited to other individuals, businesses and companies.

c.      This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

d.      You acknowledge and agree that the Services and the Webation company names and any logos and all related product and service names, design marks and slogans, are the property of Webation or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Webation. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in Webation or its third party suppliers, as the case may be.

e.      You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You hereby agree to indemnify and hold harmless Webation against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although Webation has no obligation to monitor the content provided by you or your use of the Services, Webation may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

f.       The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian federal, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights.

g.      In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Webation. Webation may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.

h.      Webation will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, Webation will not use your customer information for the purpose of sending unsolicited commercial e-mail.

i.        You will adopt and maintain the Privacy Policy, which may be modified by Webation from time to time.

j.        You may not use Webation Active to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.

k.      You may not use Webation Active to send email campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.

 

3. SUBSCRIPTION FEE AND CHARGES
   

a.      Each Webation Active account comes with a no obligation 30 day free trial. To continue using Webation Active at the end of this free trial, you are required to pay the applicable fee within 7 days otherwise your account may be cancelled and your web site may be deleted. Webation will not be held liable for any associated losses that may be incurred due to the deletion of your web site if payment is not received.

b.      The hosting price is included in your monthly fee.

c.      If paying by credit card, your credit card will be billed monthly until you cancel your account with us. This will allow you to continue to use Webation Active as long as you continue paying the monthly fee. If you are paying via invoice, you will be able to continue using Webation Active as long as you continue paying the quarterly or yearly fee.

d.      If your credit card transaction is declined, due to an expired credit card or limited funds, Webation Active will become unusable until you enter in new credit card details. After one month of your credit card being declined, Webation Active will become unusable and your public web site will not be visible on the Internet. In the event of this happening, you will be required to contact Webation. Webation can not be held liable for any associated losses that may be incurred while the web site is not visible/down.

e.  Paying monthly via credit card is supposed to be convenient for yourself and Webation. If your credit card has been terminated due to insufficient funds and it needs to be reset after money has been put into your account, Webation may charge you a reset fee of $33 AU inc GST or $25 US if this happens more then once in a 12 month period.

f.   If you are paying via credit card and you wish to downgrade your plan, you can do this yourself via the Admin tab in Webation Active. If you want Webation to complete this for you (ie. you call the office or request for us to do this via email), then a downgrade fee of $33 AU inc GST or $25 US is applicable.

g.  If you are paying quarterly or yearly in advance via invoice, then the term for using Webation Active is either quarterly or yearly ie. if you stop using Webation Active, a pro-rata refund will not be issued.

h.  There is a special plan for schools only that is for Webation Active plan "Web 3" where the school can partner with Webation and accept advertising on their email newsletter in return for receiving Webation Active plan "Web 3" for free ($0) each year. This is detailed in the "School Info & Order Form" information pack which is sent to them before they order. Webation reserves the right to cease this advertising arrangement at any time in the future with an individual or all schools. If this happens, to continue using Webation Active plan "Web 3" the school is required to pay the applicable "normal" yearly fee.

 

4. WEBATION’S OBLIGATIONS

a.      Webation will provide a single username and password per account. The username and password will give you access to your Webation Active account that you selected when you signed up. Webation Active includes online software,  web hosting and email services applicable to your selected Webation Active plan.

b.      Online help for Webation Active is available via the Admin tab within the Webation Active.

c.      Scheduled Maintenance – Webation must perform scheduled maintenance to servers and the online software from time to time. We will attempt to perform all scheduled maintenance at times that will affect the least amount of customers.

d.      Unscheduled Maintenance – Webation may need to perform unscheduled maintenance to the servers and/or the online software.

e.      Webation may from time to time without notice suspend Webation Active, your Webation Active public website or any Service or Products or disconnect or deny your access to the Service or Products:

                                                              i.      during any technical failure, modification or maintenance involved in the Service and/or Product provided that we will use reasonable endeavours to procure the resumption of the Services and/or Products as soon as reasonably practicable; or

                                                             ii.      if the Customer fails to comply with any agreement (including failure to pay charges due) until the breach (if capable of remedy) is remedied, or does, or allows to be done, anything which in our opinion may have the affect of jeopardising the operation of the Service. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

f.       Data Backup – Webation will archive your data onto a backup mechanism(s) on an ongoing basis for the purposes of disaster recover. In the event of equipment failure or data corruption, Webation will restore from the last known good archive. Webation is unable to restore Webation Active data from archives for individual Webation Active accounts should a user in your account delete website content. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to redesign any part of your website and upload the applicable data. This process requires that you maintain a recent copy of your data at your premises at all times. Webation cannot be held responsible for the lost of data or any lost of business that may arise from your website being lost partially or completely.

g.      Free basic email type support is provided via the Support System that is part of Webation Active (found in the Admin tab) - a maximum of 5 support requests per week. Online support requests are not cumulative. Some questions are simply not possible to answer over online support because of their complexity. If this is the case, then the only option is phone support which will be recommended in the reply to your online support question. Webation will provide ongoing support for the term of your account. Webation does not guarantee an immediate response for this email assistance and the response times are largely dependent upon how busy the technical support team is at the time of your enquiry / support question. Webation will provide phone support for your account and basic email configuration. If you require phone or on-site support in using Webation Active features, then you will have to purchase these.

 

5. WARRANTIES AND LIABILITIES

a.      Webation does not warrant that:

                                                           iii.      the services and Webation Active provided under this agreement will be uninterrupted or error free; or

                                                          iv.      the services will meet your requirements, other than as expressly set out in this agreement.

b.      You warrant that

                                                            v.      at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;

                                                          vi.      you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not, in any way, corrupt the data or systems of any person;

                                                         vii.      you will keep secure any passwords used in access to Webation Active;

c.      You accept responsibility for all information and material you issue over Webation Active, and indemnifies us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information which is illegal. You also acknowledge that we do not vet or approve any information or material available through Webation Active and that we do not accept any liability. To the full extent permitted by law you access and use such information and material at your own risk.

d.      You are solely responsible for dealing with persons who access the client data, and must not refer complaints or inquiries in relation to such data to us.

 

6. COPYRIGHT

a.      You warrant, in respect to the content on your web site, that you are the owner of the copyright or your have the authority from the copyright owner to use the content.

b.      Webation cannot be held liable and is not obliged to pay any royalty or compensation for the content of your web site not obeying clause 6a.

c.      Template designs, including custom templates, within Webation Active are the property of Webation and may not be copied, reproduced or used in another design or web site.

 

7. CONTENT

a.      Webation reserves the right to suspend your web site in circumstances were in its reasonable opinion, the content on your web site infringes the intellectual property rights of any third party, is obscene, defamatory or offensive.

 

8. 4. Warranty Disclaimer; Remedies
1. USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. Webation DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND Webation DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
2. Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for Webation to use commercially reasonable efforts to adjust or repair the Services.

 

9. LIMITATION OF LIABILITY

a.      Subject to rights and remedies conferred under the Trade Practices Act and any applicable State or Territory legislation, which cannot be excluded, any liability incurred by Webation in relation to this software is limited to:

                                                              i.      replacement of Webation Active;

                                                             ii.      repair of Webation Active;

                                                           iii.      refunding the cost paid for Webation Active.

b.      Subject to clause 8a, under no circumstances will Webation be liable for any incidental, special or consequential damages, including damages for loss of business or other profits arising from the use of the software.

c.      Webation Active contains programming bugs, therefore, Webation does not warrant or represent that Webation Active is error-free or that it is free from computer viruses or any other defects or errors.

d.      In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

 

10. SEVERABILITY

a.      Should any part of this license be invalid, that part shall be severed from this license and the remainder of the license will continue to be valid and enforceable.

 

11. TERMINATION

a.      You may terminate this Agreement at any time by sending an e-mail message to info@webation.com or by sending written notice to Webation, PO Box 432, Figtree NSW 2525, Australia. Correspondence must include your first name, last name, and Webation Active username. No refunds will be issued if you terminate this agreement.

b.      Webation may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Webation shall have no liability to you or any third party because of such termination. No refunds will be payable to you by Webation.

c.      Webation may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

d.      If you do not log into your account for more than 120 days and you are not paying a monthly fee, the account will become inactive. When an account is classified (at Webation's sole discretion) as inactive, Webation will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE Webation Active DATABASE.

 

12. SYSTEM REQUIREMENTS
1. It is understood that in order to use Webation Active, a Windows PC or Mac with Internet Explorer 7.0 or Firefox version 2.0 must be used. Additionally, a stable connection to the Internet is required. Webation Active may work in a limited manner on Linus and other platforms, but there is no guarantee of functionality on non-Windows or Mac platforms.
   
   
13. COMPLIANCE RULES FOR SENDING E-MAIL
1. All Webation Active customers must follow the rules of the federal CAN-SPAM act and Webation's Anti-Spam policy when sending e-mail through the service. Accordingly, we require the following of e-mail messages sent through the Webation Active system:

                                                              i.      All e-mails must contain a one-click unsubscribe link.

                                                             ii.      All e-mails must contain non-Internet contact information of the sender, such as your company's address, or your company's phone number.

                                                           iii.      All e-mails must state the reason the recipient is receiving the message. For example, "You are receiving this message from ABC Company because you signed up for our e-mail list at www.abc.com."

                                            &nbs

Webation Pty Ltd Usage Policy

1. ACCEPTABLE USES
1. You have responsibilities. It is your responsibility for yourself and for others whom you permit or enable to use Webation’s service to:

                                                              i.      use our service and services in a manner which does not violate any applicable laws or regulations;

                                                             ii.      respect the conventions of the newsgroups, lists and networks that you use;

                                                           iii.      respect the legal protection afforded by copyright, trade marks, license rights and other laws to materials accessible via our service;

                                                          iv.      use the service in a manner which does not interfere with or disrupt other network users, services or equipment;

                                                            v.      refrain from acts that waste resources or prevent other users from receiving the full benefit of our services; and

                                                          vi.      comply with Webation’s Terms and Conditions of supply.

2. Use must be ethical. Your use of our services should be ethical and in accordance with accepted community standards.

 

2. UNACCEPTABLE USES
1. You must comply with the Law. It is not acceptable to use our service for any purpose which violates local, State, Federal or international laws.
2. Specific kinds of use are not allowed. It is not acceptable to use our service to do any of the following ("Unacceptable Conduct"):

                                                              i.      send any unsolicited Comm messages or Comm in any form ("SPAM")

                                                             ii.      violate copyright or other intellectual property rights;

                                                           iii.      illegally store, use or distribute software; to transmit threatening, libellous, obscene or offensive materials;

                                                          iv.      engage in electronic `stalking' or any other form of harassment such as using abusive or aggressive language;

                                                            v.      misrepresent or defame others;

                                                          vi.      commit fraud; gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet;

                                                         vii.      damage, modify or destroy the files, data, passwords, devices or resources of Webation, other users or third parties;

                                                       viii.      engage in misleading or deceptive on-line marketing practices;

                                                           ix.      conduct any business or activity or solicit the performance of any activity that is prohibited by law;

                                                            x.      make an unauthorised transmission of confidential information or material protected by trade secrets;

                                                           xi.      intentionally omit, forge, delete or misrepresent transmission information including headers, return mailing addresses, Internet protocol addresses;

                                                         xii.      engage in any activity intended to withhold or mask Customer’s, or its if you are an authorised reseller, its User’s corporate identity or contact information; or

                                                        xiii.      attempt to do any of these things.

3. Disruption of the network is not allowed. In particular, for example, you must not:

                                                              i.      distribute messages to inappropriate or unrelated forums, newsgroups or mailing lists (`spamming');

                                                             ii.      send unsolicited commercial messages;

                                                           iii.      propagate computer worms, viruses and other types of malicious programs;

                                                          iv.      make transmissions of any type or quantity which adversely affect our operation or jeopardise the use of our service, or its performance for other subscribers;

                                                            v.      harass or impersonate Webation or other users; and

                                                          vi.      you may not use the service to interfere with or disrupt other network users, services or equipment.