These are the definitions that apply to this agreement:
“Acceptable Use Policy”
means the Host’s policy of regulation of the manner of use of the hosting Services.
means the contract to host the Web Sites as defined by this agreement.
means the provision of space in an electronic medium to enable access to the Web Sites by all the World.
means all of the prices set out in Schedule 1 to this contract.
means a schedule to this agreement.
means the Host’s servers and includes the Host’s entire software and hardware installation and all plant and machinery that serves it.
means all of the services supplied under the terms of this agreement.
means all of the web sites of the Customer that the Customer places with the Host under the terms of this agreement.
1. Summary of agreement
For the Price and subject to the terms of this agreement and to the Customer’s compliance with the Acceptable Use Policy the Host hereby agrees to provide the Services set out in Schedule 1.
2. Representative liaison
With effect from today the Host and the Customer shall each nominate a representative who shall be authorised to make decisions relating to the Contract and who shall be responsible for all liaison between the Host and the Customer.
3. Price and payment
3.1. The Price shall include:
3.1.1 the total sum payable for the services set out in schedule 1; and
3.1.2 any other money due to the Host under this agreement.
3.2. The Price shall be paid by monthly instalments on the first day of each month in advance with the addition of applicable Goods & Services Tax.
3.3. No part of the Price shall be payable until the Host has submitted an invoice to the Customer for such part of the Price as is due.
3.4. The Host reserve the right to charge the Customer interest in respect of the late payment of any sums due under this agreement (both before and after judgment) at the rate of 5 per cent above the base rate from time to time of the ANZ Bank Commercial Card Rate from the due date until receipt of payment.
4. Late payment surcharge
4.1. If payment is not received in the Host’s bank by the first day of each month the Host may suspend the Services.
4.2. In any case when payment is not made by due date additional sums will become due by the Customer to the Host as follows:
4.2.1 if payment has not been made by the 6th day of the month, the additional payment is $ 20.00;
4.2.2 if payment has not been made by the 12th day of the month, the additional payment is $ 50.00.
4.3. If payment has not been made by the last day of the month, the Host may terminate this agreement without notice.
4.4. If the Host terminates this agreement because the Customer has not made a payment when due or because he has failed to give notice of cancellation then there will be due to the Host:
4.4.1 all of the Price for Services to the end of the month of cancellation, whenever that is;
4.4.2 the Price for one additional month to compensate the Host for the failure to give notice;
4.4.3 interest as described above;
4.4.4 and the Customer agrees that these terms are reasonable.
5. Bandwidth and Disk Usage
5.1. The Customer agrees that bandwidth and disk usage shall not exceed the data usage per month for the Services set out in the Schedule.
5.2. If the Customer’s usage exceeds the amount set out in the Schedule then the Host may in his discretion:
5.2.1 increase the Price to the minimum price currently charged by the Host for the Customer’s actual usage; or
5.2.2 if in the opinion of the Host the Customer’s usage puts at risk the continued service provision to other customers, the Host may terminate service to the Customer.
5.3. The Host shall give the Customer 7 days’ notice of his decision.
6. Duration and termination
This agreement shall continue until terminated:
6.1. By effluxion of time 12 months from today ; or
6.2. By 28 days notice in writing by either party to the other ; or
6.3. Immediately by the Host if the Customer fails to pay any sum due within 28 days of the due date ; or
6.4. Immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or
6.5. Immediately by either party if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction);
6.6. Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.
7. No refund
The Customer is not entitled to a refund of any fees paid:
7.1. If he terminates this agreement without giving proper notice; or
7.2. If the host terminates this agreement because the customer has failed to comply with the Acceptable Use Policy.
8.1. The parties are aware that in the course of the Contract they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.
8.2. The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Contract that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
8.3. Both the Host and the Customer hereby undertake to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employee’s agents and sub-contractors with these provisions.
8.4. Each of the Host and the Customer hereby undertakes one to the other that for the period of 12 months following completion of the Contract they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment.
8.5. The provisions of the last previous sub paragraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.
9. Third party software rights
9.1. The Customer undertakes to obtain all necessary licences to operate the Web Site and to indemnify the Host against all costs claims and expenses arising from any failure to do so.
9.2. The Host undertakes to obtain all necessary licences required to provide the Services and to indemnify the Customer against all costs claims and expenses arising from any failure to do so.
10. Acceptable Use Policy “(AUP”)
10.1. The Customer agrees to comply with the AUP set out in Schedule 2 as modified from time to time and notified to the Customer.
10.2. The Host will give the Customer 1 month notice of any change to the AUP.
10.3. The Host agrees that the AUP shall not be altered in such a way as to change any fundamental provision of this agreement nor to impose on the Customer an unreasonable or unduly expensive obligation.
10.4. If in the absolute discretion of the Host the Host believes the Customer has violated the Host’s AUP, the Host shall notify the Customer of this by email. The Host may suspend service to the Customer pending further investigation.
10.5. If within 12 months of any violation, the Customer commits a second violation whether in a similar or different way then the Host will terminate part or all of the Services without notice.
10.6. In any case the Host may suspend all the Services without notice if the Host reasonably believe the circumstances justify this to protect themselves or others or to comply with any law. In making the decision to suspend the Host are not obliged to consider the cost or damage to the Customer that may be caused by suspension of the Services to the Customer.
10.7. Money will not be refunded to the Customer in respect of any period during which Services are suspended.
11. System and Network Security
11.1. The Customer agrees that he will not, and will not allow any other person to, violate or attempt to violate any aspect of the security of the systems of the Host.
11.2. The Customer understands that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
11.3. Examples of violations are:
11.3.1 accessing data unlawfully or without consent;
11.3.2 attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
11.3.3 attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”;
11.3.4 forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
11.3.5 taking any action in order to obtain services to which the Customer is not entitled.
12. The Customer indemnifies Host
The Customer agrees to indemnify the Host against all costs claims and expense arising directly or indirectly from:
12.1. the Customer’s failure to comply with the law of any country;
12.2. the posting by the Customer of any content on the Customer’s web site;
12.3. a breach of the intellectual property rights of any person;
12.4. the posting by any third party with or without the Customer’s knowledge of any material on the Customer’s web site;
12.5. any action taken or omitted by any third party in relation to the Customer’s web site;
12.6. any use of the Customer’s web site for a purpose forbidden by this agreement;
12.7. the actions of the Customer or any person authorised by him at the premises of the Host.
12.8. Provided that the Host:
12.8.1 gives notice to the Customer of any infringement immediately he becomes aware of it;
12.8.2 gives the Customer the sole conduct of the defence to any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim except upon the express instructions of the Customer; and
12.8.3 acts in accordance with the reasonable instructions of the Customer and give to the Customer whatever assistance he reasonably requires in respect of the conduct of his defence.
12.9. the Customer shall reimburse the Host his reasonable costs incurred in complying with the above provisions and for the purpose of this paragraph the Customer agree that the cost of our management and technical time is properly recoverable and can reasonably be valued at $200 per hour without further proof.
13. Customer contact details
The Customer undertakes to provide to the Host the Customer’s current physical address(es), email address(es), office and mobile telephone numbers as often as they are changed.
14. Interruption to the Service
14.1. If it is necessary for the Host to interrupt the Services and the Host reasonably believes the prospective duration of down-time does not justify telling the Customer in advance, then he needs not do so.
14.2. If notice of prospective down-time is given by the Host he shall in his discretion give whatever period of notice he believes is reasonable.
14.3. The Customer acknowledges that the Services may also be interrupted for reasons beyond the control of the Host.
14.4. The Customer agrees that the Host is not liable to him for any loss whether foreseeable or not, arising as a result of interruption to the Services.
The Customer agrees that the Host may disclose the Customer’s information including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority who makes a written request without further consent or notification to the Customer.
16. Host’s disclaimer
16.1. The Host does not represent that the Services are suitable for the Customer’s use.
16.2. The Customer acknowledges that in entering into this agreement he has not relied on any representation or other information not contained in this agreement.
16.3. The Host accepts no responsibility for:
16.3.1 any firewall provision not specified in the Services;
16.3.2 any malfunction in any software;
16.3.3 any aspect whatever of the content or functionality of the Customer’s Web site.
17. Limitation of liability
17.1. The following provisions set out the Host’s entire liability (including any liability for the acts and omissions of its employees) to the Customer in respect of:
17.1.1 any breach of its contractual obligations arising under this agreement; and
17.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this agreement.
and the Customer’s attention is drawn to these provisions.
17.2. Any act or omission on the part of the Host falling within this paragraph shall be known as an ‘Event of Default’.
17.3. The Host’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total Price paid or payable by the Customer for this Contract for one year.
17.4. The Host shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Host had been advised of the possibility of the Customer incurring the same.
17.5. If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.
17.6. The Customer hereby agrees to give the Host not less than 24 hours in which to remedy any Event of Default hereunder.
17.7. Nothing in this paragraph shall confer any right or remedy upon the Customer to which he would not otherwise be legally entitled.
17.8. The Host shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.
18. No duty to monitor
The Host is under no obligation to monitor or record the activity of any customer for any purpose, nor does the Host assume any responsibility through its AUP or otherwise to monitor or police Internet-related activities.
19. Visitors to Host site
19.1. Admittance to the premises of the Host shall be in the sole discretion of the Host and subject to whatever terms he shall from time to time impose.
19.2. The Host shall not be responsible for the actions of the Customer at the Host’s premises.
20. Force majeure
20.1. Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including strikes of its own employees.
20.2. Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.
20.3. If a default due to force majeure shall continue for more than 6 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
21. Successors to the agreement
21.1. The benefit and obligations of this agreement shall be binding on any successor in title.
21.2. Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
21.3. The Customer shall not permit any part of the benefit of this agreement to be used by any other person except a person to whom the Web Sites have been sold or transferred.
22. Contract is divisible
Each sub paragraph in this agreement is independent and severable from each other paragraph and enforceable accordingly. If any restriction is unenforceable for any reason but would be enforceable if part of the wording were deleted, it will apply with such deletions as may be necessary to make it valid and enforceable.
Any notice to be served on either of the parties by the other shall be sent by Australia Post or Courier recorded delivery and shall be deemed to have been received by the addressee within 72 hours of posting.
The headings in this document are for reference only.
25. Dispute Resolution
In the event of a dispute arising out of or in connection with this Contract and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by the Customer and the Host then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
This Contract shall be interpreted according to the laws of Australia.