1. What is OVA?
OVA is a website building platform and online marketing solution for users and businesses, no matter the level of website experience. Hi Tech Creative created OVA to provide an all-in-one website plan for businesses and individuals. With OVA, you aren’t limited on features even on the most affordable package, all users get the same feature set, the only difference in pricing is how much input you require from our web design and development team. OVA's website plans allow you to choose how involved you would like to be in the creation and maintenance of your website. The plans range from users building and maintaining their own website through to plans where our creative team will build and maintain your website.
To use OVA website building platform you must agree to and comply with the terms and conditions of this design agreement.
2. Service Features
For a complete guide to the extensive range of website, ecommerce and marketing features and additional services that OVA provides, please visit ova.net.au/features.
3. Plans & Charges
3.1 Contract Term: OVA's Builder and Care plans are monthly subscription-based plans are only offered as a minimum 2-year contract term, after which your plan will continue as a month to month subscription plan. The price does not reduce after the 2 year period. Hi Tech Creative reserves the right to increase the price of your plan at any stage and will provide at least 30 days notice via email before any price increases.
3.2 Monthly charge in advance: Customers will be charged for each month in advance for subscription plans. Builder and Care plans include 3 rounds of revisions during construction, additional design changes outside of the revision count will be charged at our current hourly rate. OVA Care plans allocate 5 hours of web design time per year. Additional changes outside this allocation will be charged at at our current hourly rate. Monthly subscription payments begin from the day of sign up and are ongoing during construction regardless of construction duration.
3.3 Hourly Charges: Hourly charges are billed in 15 minute blocks.
3.4 Payment: New OVA customers will be sent a copy of our Design Agreement with all terms outlined. Payment will commence on receipt of this signed agreement. We accept reoccurring payments via credit card. For manual payment, our payment terms are contained in our invoices. If no payment has been received within 14 days of the due date your account will be considered in arrears and we reserve the right to disable your website until payment is received. To avoid interruption in service we recommend using the 'auto pay' option in your online invoice to automatically deduct the payment from your account each month.
If you are facing financial difficulty or have concerns about paying, please contact us and let us know so that we can make other arrangements or payment considerations. You can contact us on (02) 6372 7580 or alternatively email us at email@example.com.
3.5 Change of Pricing: Pricing is subject to change with at least 30 days' notice given.
4. Plans & Subscriptions
4.1 Website Plans
a) Builder Plan: Hi Tech Creative will register your chosen domain and set up your website with a template that you select from our template library. Hi Tech Creative will add text and image content that you provide and provide 3 rounds of revisions. After website completion and go live, it is your responsibility to maintain your website and its search engine requirements.
b) Care Plan: Hi Tech Creative will register your chosen domain and set up your website with a template that you select from our template library. Hi Tech Creative will add text and image content that you provide and provide 3 rounds of revisions. Our creative team will provide 5 hours of website updates per year and monitor the websites SEO performance, providing recommendations if required.
Builder/Care Plan Specific Clause
Builder and Care plan websites include the construction of a website with up to 10 pages. Additional pages can be added by the client or provided by an OVA developer at $300 per additional page.
4.2 Provision of Content
You agree to provide the text, video and image resources required to build your website either personally or via a third-party whom you have approved to represent your business. You agree that production on your website will not commence until all content has been provided.
4.3 Art is Subjective
Website design, graphic design and photography are all highly creative and subjective art forms. As such, our team will take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however we cannot be held responsible for variations between expectation and outcome. Please communicate any concepts or design requests clearly with our team before production begins.
You are entitled to 3 revisions prior to your website going live. Any additional revisions beyond that shall be chargeable at our current hourly rate. You agree to review the website and all of its pages, text, images and links before providing each round of feedback. You agree to provide feedback in writing via email.
4.5 Publishing Your Website
All new websites are hidden from search engines until approved to go live. If we have not received written approval via email for your website to be published it will remain unindexed from search engines such as Google until you provide approval.
a) You may cancel your monthly subscription plan by providing us with 30 days written notice. You are still required to pay all charges during the 30 day notice period.
b) After expiry of the 2 year contract term, you may cancel your monthly subscription plan by providing us with 30 days’ written notice. You are still required to pay all charges during the 30 day notice period.
4.7 Early Termination Charges
a) Early Termination Charges (“ETCs”) will apply if you cancel your monthly subscription plan within the 2 year contract term.
b) The ETCs will be equal to the total amount payable for the remaining months of the contract term had you not cancelled your monthly subscription plan before the end of the contract period.
a) OVA offers customers the flexibility of adding upgrades and Add-Ons to your website in the form of additional services and website features. You may add Add-Ons such as our Facebook Flow service or storage upgrades to your monthly subscription plan from time to time.
b) You may cancel Add-Ons at any time on 30 days' written notice to us. You are still required to pay all charges during the 30-day notice period.
c) If you cancel your Add-Ons, your monthly subscription plan will continue until you cancel it.
5. Third-Party Services
You acknowledge that we rely on third-party service providers in order to supply the monthly subscription plan solution to you.
6. Terms Of Service
6.1 Definitions and Interpretations
In these Terms of Service, unless the subject matter or context requires otherwise, the following words and expressions shall have the meanings respectively assigned to them below:-
- “we” or “us” mean Hi Tech Creative, its affiliates, subsidiaries and our directors, officers, employees and agents or licensors and other commercial partners and their directors, officers, employees and agents
- “you” means the person or entity who uses the solution and accepts our hosting and support services and includes your directors, officers, employees and agents, as the case may be
- “Consequential Loss” means any Loss suffered or incurred by the other party in connection with this agreement that does not arise naturally (that is according to the usual course of things) from the event giving rise to the Loss and can include but is not limited to loss of profit, loss of reputation, loss of goodwill, loss of sales, loss of data.
- “Content” means information, material, content, language, imagery, links or other similar things
- “Contract” means the agreement formed between you and us by your use of the Software and the acceptance of the Service and our support services identified in clause 5 in accordance with these Terms of Service
- “Documentation” means the operating manuals and other printed materials relating to the Software including but not limited to users' manuals, programming manuals, modification manuals, flow charts, drawings and software listings, which are designed to assist or supplement the understanding or application of the Software
- “Force Majeure” means any circumstances beyond our or your reasonable control including but not limited to storm, tempest, fire, lightning, above average levels of rainfall, flood, other inclement weather, earthquake, volcanic eruption, acts of God or enemies, declared or undeclared war, piracy, riot, sabotage, terrorism, civil disturbance, power failure, shortage of fuel, labour dispute, strike, lock-out, other industrial disturbance, Denial of Service (“DOS”), Distributed Denial of Service (“DDOS”) attack, third party provider outages, cable cuts and material changes in the law but excludes the inability, for whatever reason, to make any payments in accordance with these Terms of Service
- “GST” means the goods and services tax as provided by the GST law
- ‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 as it stands from time to time
- “GST law” means the GST Act and associated legislation including without limitation delegated legislation; ”the Installation Date” means the date of installation of the Software on our equipment
- “Intellectual Property Rights” mean any copyright rights, trade mark rights, design rights, patent rights, semiconductor or circuit layout rights or any proprietary rights similar to any of the aforesaid rights
- “Loss” means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature of kind, including all legal and other professional costs on a full indemnity basis.
- “notice” means a written notice, consent, approval, direction, order or other communication
- “Personal Information” has the same meaning as that given to this term in the Privacy Act 1988 (Cth).
- “post” and “posting” means posting, uploading, contributing, submitting, transmitting, publishing or otherwise disseminating
- “Pricing Schedule” means the list of our fees, charges and costs published;
- “Service” means our managed hosting service to host the Software on the Website outlined in clause 4.
- “Software” means our website building platform marketed under the name OVA or any other name which replaces that name from time to time
- Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision.
- Headings in these Terms of Service are used for convenience only and are to be disregarded in the interpretation of these Terms of Service.
7. Supply of the Service and Material and Payments
7.1 All material and services available on the website, and all material and services we provide by or through the monthly subscription plans, our affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to the domain, software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other Intellectual Property Rights.
7.2 You must use the Service and Materials via the user credentials provided by OVA to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement.
8. Licence to use Service
8.1 We hereby grant you a non-exclusive, limited, non-transferable licence to use the Service and Material on a monthly basis subject to payment of all moneys payable under these Terms of Service by you to us until such time as the Contract is terminated in accordance with clause 12.
8.2 You acknowledge that there is no transfer of title or ownership to you of the Software, Material and the Documentation or any modifications, updates or new releases of the Software, Material and the Documentation.
8.3 You may only use the Service and Material in accordance with the normal operating procedures which we notify to you.
8.4 The Service and Material may only be used pursuant to these Terms of Service at the location agreed by us for installation of the Software to deliver the Service and Material.
8.5 Except to the extent specified to the contrary in these Terms of Service, we will not be obliged to support the Service and Material, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements of the software or otherwise.
8.6 You must not copy, alter, modify or reproduce the Service and Material except to the extent otherwise authorised by these Terms of Service or as expressly authorised under Part III Division 4A of the Copyright Act 1968.
8.7 You must not copy or reproduce the Service and Material or the Documentation by any means or in any form without our prior written consent.
8.8 You must not merge all or any part of the Software with any other software without our prior written permission, which we may withhold in our absolute discretion.
8.9 If you modify or alter the Service and Material with our permission:-
(a) you will be solely responsible for the costs associated with the modifications or alterations and the costs arising out of the investigation of the effects of the proposed modifications or alterations; and
(b) you must indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever (“Losses”) which we may suffer or incur or be called upon to suffer or incur if such modifications or alterations infringe any Intellectual Property Rights of a third person.
8.10 These Terms of Service shall apply to the Service and Material as modified or altered.
8.11 You must on demand by us execute and procure any third party to execute all such documents and perform all such other acts as are necessary in order to give effect to clause 3.10.
8.12 We will not be obliged to provide any support services in respect of the Service and Material which has been modified by you but may at our sole discretion elect to do so.
8.13 You must not reverse engineer, reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Service and Material.
8.14 You will be solely responsible for the use, supervision, management and control of the Service and Material and the Documentation.
8.15 You must ensure that the Service and Material are protected at all times from theft, misuse, damage, destruction or any form of unauthorised use.
8.16 We may from time to time update the Service and Material for many reasons including but not limited to:-
(a) maintaining security compliance;
(b) fixing bugs or problems in previous versions of the Software; and
(c) enhancing functionality or features.
8.17 We will not be liable to you for any costs arising from the effect any update may have on any code which is not provided by us and for any modifications to any such code to restore functionality.
8.18 In addition to any other remedies available to us under these Terms of Service or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Service and Material will entitle us to any available equitable remedy against you.
9. Website Hosting
9.1 You must:-
(a) comply with any additional terms and conditions of use (apart from those contained in these Terms of Service) which may apply to the Service and which we notify you of from time to time and also any reasonable directions which we give you from time to time regarding its use. If any such additional terms and conditions are unacceptable to you, you will be entitled to terminate the Contract pursuant to clause 12.1;
(b) keep secret and secure your identification and log-in information for accessing and using the Service;
(c) keep confidential and not disclose to anyone any information belonging to us; and
(d) ensure that our remote access to your systems is not blocked or prevented in any way.
9.2 You must not post any Content on or through your website:-
(a) unless you hold all necessary rights, licences and consents to do so;
(b) that would cause you or us to breach any law, regulation, rule, code or other legal obligation; or
(c) that would bring our name and/or the Service into disrepute.
9.3 You will be personally and solely responsible and liable for all Content which you post on or through your website and with regard to your interactions with other persons.
9.4 You must not post Content on or through your website that:-
(a) promotes racism, hatred, bigotry, blasphemy, discrimination, encourages violence against any person or groups or any illegal or unlawful activities;
(b) is abusive, offensive, obscene, vulgar, harmful, threatening, harassing, sexually explicit, defamatory, fraudulent or otherwise unlawful or objectionable;
(c) is inaccurate, misleading or false and if any Content which you post subsequently becomes inaccurate, misleading or false, you must promptly notify us and make all necessary corrections;
(d) infringes or violates another person’s legal and moral rights including but not limited to Intellectual Property Rights and rights of privacy and publicity;
(e) you do not have a right to post including but not limited to Content which you are prohibited by law or under contractual or fiduciary relationships (such as insider information and proprietary and confidential information) from posting or which infringes the trade secret or proprietary rights of any person;
(f) contains viruses, Trojan horses, worms, time bombs, computer codes, files or programs designed to interrupt, destroy or limit the functionality of any computer software or other harmful or disruptive mechanisms or devices which may cause financial or other Loss to us and others;
(g) constitutes phishing, trolling, junk mail or which breaches any legislation relating to spam emails or which amounts to similar unlawful conduct; and
(h) is otherwise unlawful.
9.5 Notwithstanding clause 9.4, you must specifically not use the Service in any way:-
(a) for any illegal or fraudulent activities including activities which may breach any legislation relating to intellectual property matters, discrimination, criminal activities, defamation or otherwise;
(b) which is likely to interfere with or disrupt our or other internet users’ or their service providers’ activities and their respective computers or other hardware or software including but not limited to sending, distributing, publishing, reproducing and spreading computer worms, Trojans, viruses, unsolicited mass emails, promotions, advertisements, announcements or other material constituting spam and any other matters which are similar to any of the aforesaid things;
(c) to send obscene, indecent, harassing, offensive or threatening emails; and
(d) to access another person’s computer or network without written authorisation.
9.6 You agree to assume and accept all risks when using the Service.
9.7 You must not post on or through your website any Content that we reasonably consider to be in competition with our business without our express written consent.
9.8 We will notify you and you consent to, prior to removing any Content which we in our absolute discretion believe may be unlawful or not permitted under these Terms of Service or which any third party requests us to remove on what we believe, in our absolute discretion, to be reasonable grounds.
9.9 We will make a full backup of your website files weekly for website restoration purposes only and will retain that backup for a period of thirty (30) days after which time that backup will be deleted from our servers. If data is lost due to your act or omission, we will use reasonable endeavours to recover lost data from the most recent backup archive and will advise you in advance of any applicable fees we may charge for the recovery, depending on the complexity of the recovery.
9.10 If you elect to install third-party software and seek our assistance in connection with the installation of that software, you:-
(a) must pay us any applicable fees we charge to assist you with the installation or configuration of third party software, which we will advise to you prior to the installation. You may choose to not to receive any assistance from us in connection with the configuration if you do not wish to pay any applicable fees;
(b) represent and warrant to us that you have or will have the right to use and install that third party software, that you have paid or will pay any relevant fees pertaining thereto and that the third party software does not infringe the Intellectual Property Rights of any person; and
(c) agree to indemnify and keep us indemnified from and against all and any Losses which we may suffer or incur or be called upon to suffer or incur as a result of assisting you with the installation of the third party software, except where the Loss arises as a result of our negligence or unlawful act or omission.
9.11 If your website is the target of a Distributed Denial of Service Attack (“DDoS”) or any similar attack or threat, you agree to:-
(a) using reasonable endeavours in taking such mitigation measures including but not limited to taking your website offline, moving it to a quarantine server, implementing access control lists (“ACL”), IP filtering and IP blocking as we, in our absolute discretion, consider to be necessary, with or without prior notice to you, and without us becoming liable in any way to you for any Consequential Loss, delay, disruption or interruption of Service; and
(b) to any mitigation measures taken by us remaining in place until your website experiences at least forty eight (48) hours of continuous non-malicious “normal” traffic.
9.12 Any confidential information belonging to you including but not limited to inventory information and images entered by you or your customers on your website is and will remain your property.
9.13 If your website contains links to websites of third parties including but not limited to advertisers which are not under our control (“Third Party Sites”), you agree that :-
(a) we will not be responsible or liable for any content or for any updates or changes to Third Party Sites and any content posted on such Third Party Sites;
(b) all dealings between you and the operators and owners of any Third Party Sites are at your risk; and
(c) to the full extent permitted by law, we will not be liable for any claims, Losses or damages of any kind which you may directly or indirectly incur by dealing with the operators and owners of any Third Party Sites.
10. Service Levels
10.1 We will use reasonable endeavours to make your website accessible 24 hours per day except where any of the following performance issues apply:-
(a) where factors outside our reasonable control disrupt the network;
(b) where your act or omission or any act or omission of any third party not associated with us disrupts our network e.g. where there is a DDoS attack on your website or on another person’s website hosted on the same server;
(c) where the disruption is caused by your equipment, internet connection or a third party’s equipment;
(d) where the disruption is caused by an software issue beyond our control;
(e) where the disruption results from our scheduled maintenance and/or updating programs in respect of the Software, the Website and our network.
11. General Search Engine Rankings
11.1 You acknowledge that as the popularity of a website in any major search engine is determined by a number of factors outside our control, we do not guarantee any search engine rankings from any of the Services provided as part of our monthly subscription plans.
11.2 We may, on your request and in our absolute discretion, provide you with limited advice on how you may generally improve your search ranking.
11.3 Apart from any limited general advice we provide under any ongoing service agreement, if you require us to provide specific search engine optimisation services, we will provide such services at the fee charged by us. If you are subscribed to any plan which includes website changes as an included feature you agree to these services being provided under any time-frame restrictions outlined in the subscription plan.
12. Credit Card Processing and Sensitive information
12.1 If you choose to store credit card information or other sensitive information on your website, you do so at your own risk and we do not accept any liability for any Loss suffered by you in respect thereof.
13. Assignment and Subcontracting
13.1 Your rights, duties and obligations under the Contract are personal to you and may not be assigned or disposed of by you in any manner whatsoever, unless you obtain prior written approval from us.
13.2 We may assign our rights and obligations under the Contract without your consent if we obtain from the assignee a deed in your favour whereby the assignee agrees to be bound by the Contract as if the assignee were named in these Terms of Service as the other contracting party.
13.3 We may subcontract all or any part of our obligations under these Terms without your consent.
14. Force Majeure
14.1 Notwithstanding any other provision in these Terms of Service, neither you nor we will be liable for any failure to fulfil any provision in these Terms of Service if such fulfilment is delayed, prevented, restricted or interfered with as a result of Force Majeure.
14.2 If you are unable to perform your obligations or we are unable to perform our obligations due to Force Majeure, you or we, as the case may be, must:-
14.2.1 notify the other as soon as reasonably practicable of any delay; and
14.2.2 use reasonable efforts to resume performance in accordance with these Terms of Service as soon as possible.
14.3 If Force Majeure continues for more than one (1) month, either you or we may terminate these Terms of Service forthwith by giving to the other a notice of termination in accordance with clause 4.6.
15.1 To the full extent permitted by law, we exclude all liability in respect to loss of data, interruption of business or any consequential or incidental damages, except where we have been negligent in our performance of the Service.
15.2 To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those set out in these Terms of Service.
15.3 These Terms of Service must be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible and permitted, we limit our liability in respect of any claim, at our option:-
(a) in the case of goods to:-
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of having the goods repaired, and
(b) in the case of Services to:-
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
16.1 To the full extent permitted by law, you must indemnify and keep us indemnified from and against all and any Losses which we may suffer or incur or be called upon to suffer or incur by virtue of:-
(a) you have been negligent in your use of the Service
(b) a breach by you of these Terms of Service;
(c) a breach by you of the rights of any third party; or
(d) or any violation by you of any applicable laws, rules or regulations.
17.1 You may at any time terminate the Contract upon giving at least one (1) month’s prior written notice to us without any reason and the Contract will end at the expiry of that period. We may at any time terminate the Contract upon giving at least one (1) month’s prior written notice to you without any reason and the Contract will end at the expiry of that period.
17.2 Either you or we may terminate the Contract, effective upon the delivery of written notice of such termination to the other, if:-
(a) you fail to pay us any moneys payable hereunder within fourteen (14) days of receipt of a written demand for payment of the said moneys from the other; or
(b) there is a continued and material breach by the other of any of these Terms of Service, provided that you or we have given the other seven (7) days prior written notice of such breach, the other has not remedied the breach within a reasonable period thereafter and it is possible for the other to take such remedial action;
(c) there is an irremediable breach by the other of any of these Terms of Service; or
(d) the other becomes insolvent, makes an assignment for the benefit of creditors or, if a corporation, shall go into administration or liquidation (otherwise then for the purpose of reconstruction or amalgamation) or has presented against it a petition for its winding up or does or omits to do any act matter or thing which constitutes a ground for a court to order that it be wound up or, if an individual, commits an act of bankruptcy or is made bankrupt.
18. Consequences of Termination
18.1 Any termination of the Contract is without prejudice to your rights against us or our rights against you in respect of any antecedent breach or non-observance of any of these Terms of Service.
18.2 We will allow you until the end of your monthly billing period following termination of the Contract to download your data before we cancel the licence for your website, domain and email addresses and remove your website and its contents and email addresses from our servers Upon removal, you will no longer be able to access your website, domain and email addresses unless you choose to reactivate your Service, which is possible for up to three (3) months from the end of your Contract term.
18.3 You must pay to us upon demand all fees and other moneys payable by you to us under these Terms of Service, which as at the date of termination of the Contract is or becomes due and payable by you to us.
19.1 Any notice or other communication given by either you or us under these Terms of Service:-
(a) must be in writing and for this purpose email will constitute writing;
(b) may, in addition to any other method of service by law, be sent by email to any email address of the addressee shown in any correspondence or documents between the addressee and the sender and for this purpose you and we consent to this method of communication for the purposes of any legislation governing this method of communication.
19.2 Any notice sent or delivered in accordance with clause 17 will be treated as validly given to and received by the addressee notwithstanding that the addressee is absent from the place to which it is sent or negligence on the part of the recipient in regards to reading said notice.
19.3 Any notice from either you or us may be given and signed by your lawyer or our lawyer, as the case may be, and any notice to you or us may be given to your lawyer or our lawyer, as the case may be, by any of the methods listed in this clause 17 to the lawyer’s business address or facsimile number.
20.1 If a provision of these Terms of Service is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
20.2 You must at your expense and we must at our expense do everything reasonably necessary to give full effect to these Terms of Service.
20.3 Terms operating to our benefit following termination of the Contract under these Terms of Service, including clauses 10, 11, 13, 14, 15 and 16, survive the termination of the Contract to the full extent permitted by law.
20.4 None of your or our rights under these Terms of Service will be waived or deemed to be waived except by notice in writing signed by you or by us to the other waiving the right and any such waiver by either you or us will not prejudice either your or our rights in respect of any subsequent breach of these Terms of Service.
21.1 Except as required by law, you have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Personal Information you provide to us using the Service.