In this Agreement, unless the contrary intention appears:
“Agreement” means this agreement for the hosting of the Web Site or other Hosting Services.
“Charges” means the fees and charges payable for the Services pursuant to this Agreement as set out in the Suppliers web site as published from time to time and subject to any refunds or discounts that may be payable in accordance with the provisions of this Agreement.
“Claims” means all demands, proceedings, awards, judgments, damages and costs (including legal costs on an indemnity basis) whether at law or in equity.
“Commencement Date” means the date these Terms and Conditions are accepted by the Customer in the course of the Order Process.
“Customer” means the person entering into this Agreement with the Supplier and accepting these terms and conditions.
“Confidential Information” means the confidential information of a Party which relates to the subject matter of this Agreement and includes:
- confidential information relating to the hosting of the Website;
- information relating to the personnel, policies or business strategies of the Supplier; and
- information relating to the terms upon which the Hosting Services are provided pursuant to this Agreement.
“Downtime” means that a service or server that the Supplier is responsible for is unresponsive and not able to be used for its intended purpose.
“Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
- Lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
- War, (whether declared or not), civil acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and/or
- Industrial action.
“GST” means a Goods and Services Tax as that term is defined in the GST Law.
“GST Law” means “A New Tax System (Goods and Services Tax) (Cth) 1999 and includes all amendments to that act, the regulations and any rulings issued by the Australian Taxation Office.
“Hosting Services” or “Services” means the services requested by the Customer and provided by the Supplier pursuant to this Agreement and includes the VPS Services.
“Initial Term” means the initial period for which the services are sought in the course of the Order Process.
“Mb” means megabyte.
“Internet” means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.
“Party” means either the Supplier or the Customer as the context dictates.
“User” means a person other than the Parties who seeks access over the Internet.
“Web Site” means the area on the Server allocated by the Supplier to the Customer for its use as a site on the Internet.
“Secure Web Page” means the Web page operated and located on the Server which allows the transactions of the page to be encrypted.
“Order Process” means the product order process setting out the range of products available to the Customer as listed on the Supplier’s web site from time to time.
“Server” means the computer server equipment operated by the Supplier for the purpose of providing the Services.
“Supplier” means Cast Control Pty Ltd (ACN 159 265 399) of Suite 3, level 5, 221-229 Crown St, Wollongong, NSW, Australia and includes its lawful successors and assigns.
“Suppliers web site” means that site on the internet to which the Supplier has proprietary rights and which is used by the Supplier for its commercial activities including the provision of the Services.
“VPS Services” means integrated and customised virtually hosted private operating system that is allocated shared resources on a dedicated server.
In this Agreement, unless the contrary intention appears:
2.1 the clause headings are for ease of reference only and shall not be relevant to interpretation;
2.2 a reference to a clause number is a reference to its subclauses;
2.3 words in the singular number include the plural and vice versa;
2.4 words importing a gender include any other gender including the neutral;
2.5 a reference to a person includes bodies corporate and unincorporated associations and partnerships;
2.6 a reference to a clause is a reference to a clause or subclause of this Agreement;
2.7 a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
2.8 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
2.9 monetary references are references to Australian currency.
3. Term of agreement
3.1 This Agreement commences on the Commencement Date and shall remain in force for the Initial Period and any subsequent term until terminated in accordance with the provisions in this Agreement.
3.2 Subject to clause 17.3 this Agreement will be automatically renewed at the conclusion of the Initial Term and thereafter at the conclusion of any subsequent or further term(s) in accordance with clauses 17.3.2 and 17.3.7.
4. Hosting services
4.1 The Supplier shall provide the Hosting Services requested by the Customer in the Order Process as completed on the Suppliers web site.
4.2 The Supplier shall use its computer facilities to provide the platform on which the customer may install its Web Site.
4.3 The Supplier shall use reasonable endeavours to ensure that sufficient capacity is maintained on its computer facilities to enable Users to access the Web Site.
4.4 The Supplier will use reasonable endeavours to ensure the continuing availability of the Server but does not warrant that Users will have continuous access to the Web Site. The Supplier shall not be liable for any Claims in the event that the Web Site is unavailable to the Customer or Users due to Downtime for any reason.
4.5 If so requested by the customer in the Order Process and subject to clause 7, the Supplier will:
4.5.1 procure and register a domain name for the Customer; and
4.5.2 endeavour to obtain the Customer’s preferred domain name as nominated.
4.6 The Supplier does not warrant that any preferred domain name of the Customer will be available and in any event the Supplier accepts no liability arising out of the inability of the Supplier to obtain the Customer’s preferred domain name or the exercise of any discretion by the Supplier in obtaining on behalf of the Customer an alternative and reasonably comparable domain name.
4.7 The Customer warrants that:
4.7.1 all information provided in the domain name application is true and correct; and
4.7.2 the domain name sought does not breach any legal rights of a third party, including but not limited to Intellectual Property Rights.
4.8 The Customer acknowledges that the registration of its domain name may be the subject of licence conditions and that the licensor may revoke the licence for infringement of those conditions. The Customer undertakes to familiarise itself with any such conditions. The Customer shall indemnify the Supplier in respect of any liability arising, directly or indirectly, from a failure by the Customer to comply with any such licence conditions.
4.9 The Customer may advise the Supplier as part of the Order Process that it will use its existing domain name or request the Supplier to transfer its existing domain name from another registry on such terms as may be set out in the Order Process.
4.10 The Hosting Services do not include maintenance of the Web Site. Without limiting the foregoing, the Supplier accepts no responsibility for any deficiency or inaccuracy in the Web Site attributable to a lack of maintenance.
5. Web Hosting/Email/Secure Webpage/Virus Protection
5.1 The Supplier specifically excludes any warranty as to the accuracy or quality of information received by any person via the Server and in no event will the Supplier be liable for any loss or damage to any data stored on the Server. The Customer is responsible for maintaining appropriate insurance cover in respect of any loss or damage to data stored on the Server.
5.2 The Customer warrants to the Supplier that it will only use its assigned Web Site for lawful purposes. In particular, the Customer further warrants and undertakes to the Supplier that:
5.2.1 the Customer will, nor will it authorise or permit any other person to, use the Server in violation of any law or regulation;
5.2.2 the Customer will not knowingly or recklessly post, link to or transmit any material:
126.96.36.199 that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or
188.8.131.52 contains a virus or other hostile computer program; or
184.108.40.206 that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction.
5.2.3 the Customer will conform to the standards made available by the Supplier from time to time and will not itself, and will ensure that none of its end users, make excessive or wasteful use of the Server to the detriment of the Supplier or that of the Supplier’s other customers. The Supplier reserves the right to suspend the Services at any time for service abuse without prior notification, and to terminate the Services on in the event of further or continuing breaches after the Services are reinstated.
5.3 The Customer is responsible for sending email in accordance with any relevant legislation, including but not limited to the Spam Act 2003 (Cth) and for sending such communications in a secure manner. The Supplier will take all reasonable steps to ensure accurate and prompt routing of messages but will not accept any liability for non-receipt or mis-routing or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (“UCE”) by the Customer the Supplier may terminate the Services without notice.
5.4 The Customer warrants, undertakes and agrees that:
5.4.1 any transactions within its Web Site which are contracts for the sale of goods or services will be between the Customer as the merchant and its end-user as customer. The Customer acknowledges and agrees that the Supplier is not a party to such transactions and will indemnify and keep indemnified the Supplier in relation to any Claims arising against the Supplier, whether directly or indirectly, arising out of or in any way connected with such purchases or transactions;
5.4.2 The information contained within the Customers Web Site will comply with all applicable laws and codes of practice governing the use of web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
5.4.3 The Customer will keep secure any identification, password and other confidential information relating to its account(s) and the Customer will notify the Supplier immediately of any known or suspected unauthorised use of its account(s), or any known or suspected breach of security, including loss, theft or unauthorised disclosure of the Customers password information. Notwithstanding such notification the Customer will be liable for any and all uses of its account(s) (and Web Site) notwithstanding any fraudulent or improper use of its password or any other access to any of the facilities offered by Supplier unless such access or use has occurred as a result of any negligent act or omission on the part of the Supplier.
5.5 Whilst the Supplier shall use reasonable endeavours to ensure the integrity and security of the Server, it does not warrant that the Server will be free from access by unauthorised users or hackers.
5.6 The Supplier does not warrant whatsoever that its virus protection services will stop every virus or other hostile computer program from reaching the Customer’s computer network. The Supplier gives no warranty that the Services will be error free or free from interruption or failure due to viruses or any other hostile computer program and the Supplier expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance in this regard.
5.7 The Customer agrees to pay additional charges for the transit of IP traffic above and beyond the amount specified as a limit in the Charges. Unless otherwise set out in the Order Process or on the Suppliers web site all excess data will be charged at the rate of 3.5c/Mb to the nearest whole Mb for each Mb above the plan limit as selected in the Order Process . These charges will fall due at the completion of the calendar month in which they are incurred and are payable within 7 days from invoice date unless otherwise set out in the Order Process or on the Suppliers web site. The Supplier will provide an online interface allowing authorised users to monitor website data traffic.
5.8 Should the Customers Web Site exceed burst (or ongoing) data transit of greater than 5Mb/sec, or otherwise degrade the network performance for other users, the Customer’s account will be subject to review and may be suspended at the sole discretion of the Supplier.
5.9 Should the mail boxes associated with the Customer’s account exceed more than 1,000,000 aggregate messages, the account will be subject to review and maybe suspended at the sole discretion of the Supplier.
5.10 All hosting plans included in the Services are subject to general resource and usage monitoring. The following usage items are expressly prohibited:
5.10.1 Any action or process that unreasonably consumes resources degrading the shared environment for other users is subject to review. This includes but is not limited to execution of scripts (PHP, ASP. NET, CGI/PERL, FTP, HTTP, database connections and the like).
5.10.2 Running standalone, automated server-side processes including, but not limited to any daemon.
5.10.3 Running any bit torrent application, tracker or client.
5.10.4 Participating in file sharing or other peer to peer sharing activity.
5.10.5 Executing any script for longer than 180 seconds.
5.10.6 Executing any database query that takes longer than 30 seconds to complete.
5.10.7 Specifying cron tasks that execute more frequently than every 300 seconds.
6. Uptime Guarantee
In the event of Downtime the Supplier will at the Customer’s request, credit its account for the affected Services on the basis appearing below.
If the total Downtime in the calendar month is:
6.1 Greater than 0.7 hours but not exceeding 7.2 hours – Credit of 10% of the monthly recurring fee;
6.2 Greater than 7.2 hours but not exceeding 14.4 hours – Credit of 20% of the monthly recurring fee;
6.3 Greater than 14.4 hours – Credit of 40% of the monthly recurring fee
where the monthly recurring fee is as determined by the Charges.
No credit for Downtime will be given when Downtime is a result, directly or indirectly, of the Customers own actions or conduct.
7. Domain Name Registration
7.1 Rules of registration
7.1.1 The Supplier does not warrant or guarantee that the domain name applied for will be registered in the Customers name or is capable of being registered by it. Accordingly, The Customer should take no action in respect of the requested domain name(s) until notified the Supplier that the requested domain name has been registered.
7.1.2 If the Customers application is deemed fraudulent through a fraud detection and prevention mechanism in the domain registration process, the Supplier may require the Customer to produce such identification documentation it considers necessary, which may include but is not limited to current passport or a valid driver’s license.
7.1.3 Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and the Customer is responsible for ensuring that it is aware of those terms and conditions and that it can and does comply with them. The Customer irrevocably waives any Claims it may have against the Supplier in respect of the decision of a naming authority to refuse to register a domain name and, without limitation Customer agrees that any fees, administration or other charges paid it to the Supplier shall be non-refundable in such event.
7.1.4 The Supplier contractor accepts no responsibility in respect of the use of a domain name by the Customer and any dispute between the Customer and any other individual or organisation regarding a domain name must be resolved between the parties concerned without reference to the Supplier. The Supplier will take no part in any such dispute. The Supplier may, on becoming aware of such a dispute, at its sole discretion and without giving any reason, either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
7.2 Registrant agreements
The parties acknowledge that:
7.2.1 .com.au and .net.au domains can only be registered by an Australian registered company, or business with a registered Australian Business number (“ABN”). The Customer will need to supply this number during the order process. The domain name ordered by Customer will need to be an exact match, acronym or abbreviation of the supplied business registration, or it should bear a close and substantial connection to the domain name. Domains can be two to 63 letters in length. Words can be separated by hyphens but not spaces.
7.2.2 .org.au and .asn.au can only be registered by a “non-commercial organisation”. If using such a domain name the Customer needs to have a solid relationship to the organisation to which it represents.
7.2.3 .id.au is intended for individuals who reside in Australia.
7.2.4 .au.com domain names are not restricted or regulated by .au policy rules and can be registered by any person.
7.2.5 .com and .net domain names are not restricted and can be registered by any person.
7.2.6 .biz, .org and .info domain names are not restricted and can be registered by any person.
7.2.7 .nz domains are intended for people in, or with ties to, New Zealand and can be registered by any person.
7.2.8. uk domains are intended for people in, or with ties to, the United Kingdom and can be registered by any person.
7.2.9 .mobi domains are intended for websites designed for a mobile device and can be registered by any person.
7.2.10 .cn domains can no longer be registered in Australia. This information is for reference purposes only.
8. Virtual Private Server (‘VPS’)
8.1 General VPS service terms
8.1.1 The Supplier specifically excludes any warranty as to the accuracy or quality of information received by any person via the VPS and in no event will the Supplier be liable for any loss or damage to any data stored on the VPS or it’s virtualised storage device(s). The Customer is responsible for maintaining insurance cover in respect of any loss or damage to data stored on the VPS and its virtualised storage device(s). The Customer warrants to the Supplier that it will only use its assigned VPS for lawful purposes. In particular, the Customer further warrants and undertakes:
220.127.116.11 the Customer will not, nor will it authorise or permit any other person to, use the VPS in violation of any law or regulation;
18.104.22.168 the Customer will not knowingly or recklessly post, link to or transmit any material by VPS:
22.214.171.124.1 that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or
126.96.36.199.2 containing a virus or other hostile computer program;
188.8.131.52.3 that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and
184.108.40.206 the Customer will conform to the Suppliers standards as made set out from time to time on the Suppliers web site or otherwise and will not itself, and will ensure that none of its end users, make excessive or wasteful use of the VPS to the Suppliers detriment or that of its other customers. The Supplier reserves the right to suspend the Services at the time of service abuse prior to notification, and to terminate the Customer’s account in the event of three (3) suspensions of the Services as a result of persistent breaches of this obligation and/or ongoing lack of resolution of the issue.
8.1.2 The Customer shall indemnify and keep indemnified the Supplier from and against all Claims arising out of or relating to, whether directly or indirectly, the use of the VPS Services the Customer has installed and configured on its VPS, including, but not limited to, use of the VPS without the Customers consent.
8.1.3 The Customer is responsible for sending mail in accordance with any relevant legislation, including but not limited to the Spam Act 2003 (Cth) and for sending the same in a secure manner. In the event of deliberate transmission of UCE from its VPS, the Supplier may terminate the Services without prior notification to Customer.
8.1.4 The Customer warrants, undertakes and agree that:
220.127.116.11 any transactions within websites or application hosted on its VPS, which are contracts for the sale of goods or services will be between the Customer as merchant and its end-user customer and the Customer will indemnify the Supplier in relation to all Claims arising out of or connected in any way with such purchases and/or transactions.
18.104.22.168 the information contained within websites or application hosted on the Customer’s VPS, will comply with all applicable law, and codes of practice governing the use of web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
22.214.171.124 the Customer will keep secure any identification, password and other confidential information relating to its account and the Customer will notify the Supplier immediately of any known or suspected unauthorised use of the Customer’s account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of the Customer’s password information. Notwithstanding such notification the Customer will be liable for any and all uses of its account (and VPS) notwithstanding any fraudulent or improper use of Customer’s password or any other access to any of the facilities offered by the Supplier which is not unauthorised use or access by Supplier.
8.1.5 Whilst the Supplier will use all reasonable endeavours to ensure the integrity and security of the VPS, the Supplier does not guarantee that the VPS will be free from unauthorised users or hackers, including degraded network connectivity as a result of any type of malicious denial of service attack.
8.1.6 The Supplier does not warrant whatsoever that any supplied virus protection services will stop every virus or other hostile computer program from reaching the Customer’s computer network. The Supplier makes no warranty that the Services in so far as they involve VPS will be error free or free from interruption or failure due to viruses or other hostile computer program and the Supplier expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance in this regard.
8.1.7 The Customer agrees to pay additional charges for the transit of IP traffic above and beyond the amount specified as a limit in any VPS plan in the Charges. Unless otherwise specified in the Order Process or on the Suppliers web site all excess data will be charged at the rate of $10.00 per GB to the nearest whole GB. These charges will fall due at the completion of the calendar month on normal trading terms of 7 days from invoice unless otherwise specified in the Order Process or on the Suppliers web site. The Supplier will an online interface allowing authorised users to monitor web site traffic.
8.1.8 All hosting plans involving VPS are subject to general resource and usage monitoring. The following usage items are expressly prohibited:
126.96.36.199 Any action or process that unreasonably consumes resources degrading the shared environment for other users.
188.8.131.52 Any action or process that consumes high IP Traffic including but not limited to Media Streaming, and Peer to Peer File Sharing.
184.108.40.206 Running standalone, automated server-side processes including, but not limited to any daemon.
220.127.116.11 Running any bit torrent application, tracker or client.
18.104.22.168 Participating in file sharing or other peer to peer sharing activity.
22.214.171.124 Executing any script for longer than 180 seconds.
126.96.36.199 Executing any database query that takes longer than 30 seconds to complete.
188.8.131.52 Specifying cron tasks that execute more frequently than every 300 seconds.
8.2 VPS Service Level Agreements
8.2.1 During the term of the VPS agreement, the Customer may enter into a Service Level Agreement (‘SLA’) for any Downtime reported to the Supplier by the Customer.
8.2.2 Other than as provided in the SLA, the Supplier shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to Force Majeure.
8.3 Uptime Guarantee for VPS services
In the event of Downtime in relation to the provision of VPS services, the Supplier will at the Customer’s request, credit its account for the failed service as described below.
If the total Downtime in the calendar month is:
8.3.1 Greater than 0.7 hours but not exceeding 7.2 hours – credit of 10% of the monthly recurring fee;
8.3.2 Greater than 7.2 hours but not exceeding 14.4 hours – credit of 20% of the monthly recurring fee; and
8.3.3 Greater than 14.4 hours – credit of 40% of the monthly recurring fee
where the monthly recurring fee is as determined by the Charges.
No credit for Downtime will be given when Downtime is a result, directly or indirectly, of the Customers own actions or conduct.
8.4 Downtime for VPS services
All VPS products are sold in an unmanaged state. For the purposes of this clause this means that the Customer is responsible for all activity, backups, software & resources that the VPS utilises.
For the purposes of this clause 8.4, Downtime shall mean any interruption of ninety (90) seconds or greater in the connectivity of the network to the VPS, the VPS container to be running, and the connectivity of the container to the shared network storage and the failure is a result of:
8.4.1 Any failure by the Supplier so as to cause interruption in network availability (with the exclusion of network saturation by DOS/DDos), where downtime is defined as:
8.4.2 Router packet loss is in excess of fifty percent (50%) and is sustained for one hundred and twenty (120) seconds or more;
8.4.3 Occurring if the latency across the Supplier’s IP network exceeds one hundred twenty (120) milliseconds, for longer than 300 seconds; and/or
8.4.4 A fault in hardware by which the VPS services are provided. If time between Customers formal indication of service fault and the Supplier’s acknowledgement and response to begin resolution of the hardware fault exceeds four (4) hours, the Supplier will classify this as downtime.
Downtime begins at the time the Customer reports a VPS failure to the Supplier. If the Customer does not report service failure before The Supplier resolves problem, then Downtime will not be credited as per Clause
8.5 VPS Support Services
8.5.1 Unmanaged solutions
The Supplier VPS solutions are provided, unless otherwise specified as unmanaged. For the purpose of this clause “unmanaged” is defined as a base installation of Customers specified operating system, network access and remote access via SSH or terminal services depending on the selected operating system. After the initial deployment of the Server, the Customer is responsible for any updates, or additional software installations or integrations that are required to be performed on the VPS.
8.5.2 Customer obligations for VPS
184.108.40.206. The Customer shall document and promptly report all errors or malfunctions of the hardware or software to the Supplier in a reasonable time frame.
220.127.116.11 The Customer shall maintain a current archive copy of all software and data. In the event of a critical system failure that involves hardware replacement, the Supplier shall restore system to original configuration as at date of the service commencement and the Customer shall be responsible for restoring all data.
18.104.22.168 The Customer is responsible for network and application security measures and acknowledges that it may be vulnerable to network attacks should it not utilise TCP/IP packet filtering technologies which may or may not prevent, or guarantee prevention of, system penetration.
22.214.171.124 The Customer acknowledges that Microsoft Windows and Linux operating systems, along with additional 3rd party software, may contain bugs or may be dysfunctional. The Supplier provides no guarantee in regards to the stability or security or otherwise of an operating system for any particular function.
126.96.36.199 The Customer and Supplier may enter into a Support Agreement (“Support Agreement”) during the term of this Agreement for the support of VPS Services when available on the terms set out on the Suppliers web site.
188.8.131.52 The Customer shall follow the procedures set out in and in accordance with any Support Agreement, or as may be outlined on the Supplier’s web site, when support is required.
184.108.40.206 During the provision of the VPS Services the Customer is responsible for the role of ‘Systems Administrator’. The Systems Administrator has the responsibility for the collection of tasks related to utilising system software. This includes but is not limited to maintaining users, maintaining websites, maintaining email setting, configuration of databases, uploading content and any and all associated programming.
220.127.116.11 The Customer acknowledges that free technical support provided by the Supplier is limited to hardware/network failures. Basic support limited to hardware/network failures or troubleshooting may be obtained from the Suppliers web site and in most cases is free of charge. Technical support relating to all other purposes or problems, including but not limited to usage of software or code is chargeable in accordance with any SLA or other support agreement that may be entered into by Customer with the Supplier.
8.6 IP Addresses
8.6.1 The Supplier may designate for the Customers use on a temporary basis one or a number of Internet Protocol Addresses (“IP Addresses”) from the address (IPv4 and/or IPv6) space allocated to the Supplier by APNIC. Customer accepts that the IP addresses are the sole property of the Supplier and are designated to it to use on a temporary basis. Such temporary IP addresses are not portable.
8.6.2 The Supplier has the right to change the IP addresses allocated to the Customer at any time but in doing so shall use reasonable commercial effort to minimise any inconvenience to the Customer and shall give the Customer a reasonable notice of any changes. The Customer agrees agree that it will have no right to use any IP addresses assigned to it upon termination of this agreement, and that any change in IP addresses it may need to make after termination of this Agreement shall be the Customers sole responsibility.
9. Maintenance and Service Interruptions
9.1 Maintenance Windows
In order to maintain and upgrade the Supplier’s IP and network infrastructure, the Supplier will perform scheduled maintenance on its equipment. Outages or performance degradation during scheduled maintenance windows as a result of router, switch or server maintenance, are not considered Downtime for purposes of this Agreement. The Supplier shall make all commercially reasonable efforts to provide the Customer with reasonable prior notification of all scheduled and emergency maintenance procedures. All such notification shall be performed via email and/or publication of a service notification on the Supplier’s website.
9.2 Investigation of Service Interruptions
At the Customer’s request, the Supplier will investigate any report of Downtime, and attempt to remedy any Downtime expeditiously. If the Supplier reasonably determines that all facilities, systems and equipment furnished by the Supplier are functioning properly, and that Downtime arose from some other cause, the Supplier can continue to investigate the downtime at the Customers request and expense at the rates set out in any Support Agreement.
10.1 Sole Remedy
The terms and conditions of clauses 6, 8.3, 15.2, 18 and 19.4 shall be Customer’s sole remedy and the Supplier’s sole obligation for any Claims arising from Downtime or any other breach by the Supplier of the terms of this Agreement. This shall include, loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, even if advised us to the possibility thereof. Nor will the Supplier be liable in any event for any damages including, without limitation, indirect, special, incidental, consequential or exemplary damages, arising out of or in connection with this Agreement or the provision of the Services or the VPS Services.
10.2 SLA Rebate
10.2.1 SLA Rebate Processingwill only occur upon the formal submission of a claim in accordance with sub clauses 10.2.2 and 10.2.3.
10.2.2 To claim an SLA Rebate, the customer must have submitted a notice in the form set out on the Suppliers web site from time to time at the time of the incident or immediately thereafter describing the problem in detail including any error messages in order to properly notify the Supplier of an issue with the Services. Such notification will serve to record the start time for the purposes of any rebate under the Uptime Guarantee. An SLA Rebate will not be available for any Downtime caused by scheduled maintenance on the part of the Supplier for which notice has been previously given on the Suppliers web site.
10.2.3 Once a resolution of Downtime has been reached, the Customer can submit a claim for an SLA Rebate by sending an email to firstname.lastname@example.org with the subject of “SLA Rebate” and referencing both the Services agreement and the notice given pursuant to clause 10.2.2. The Supplier will process any claim properly made by the Customer within 7 days of receipt. The Customer will on submitting a claim for an SLA Rebate in the required manner receive an automated email response with a unique tracking number. The issue of the tracking number is the only proof of the submission of a claim for an SLA Rebate that will be accepted by the Supplier. Any claim submitted under this clause must be received and a tracking number allocated within 28 days of the submission of the notice described in sub clause 10.2.2.
11. Customer’s obligations
11.1 The Customer shall be responsible for the design, development, modification, content and maintenance of the Web Site.
11.2 The Customer undertakes to ensure that the Web Site:
11.2.1 does not infringe the Intellectual Property Rights of any person;
11.2.2 will not at any stage during the term of this Agreement contain material which is obscene, offensive, upsetting, defamatory, personally offensive or in any way unsuitable for people under the age of eighteen (18) years; and/or
11.2.3 Does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
11.3 Unless the Supplier’s written consent is obtained in advance, the Customer shall use the Web Site for its own purposes and shall not sub-let space for any other individual or entity.
12.1 The Customer shall pay the Charges at the rate and in the manner set out in the Order Process and thereafter as is set out on the Suppliers web site from time to time.
12.2 Unless otherwise stated in the Order Process or on the Suppliers web site the Charges are inclusive of GST and all other taxes, duties and charges imposed or levied in Australia or overseas in connection with the Hosting Services. Without limiting the foregoing, the Customer shall be liable for any new taxes, duties or charges imposed subsequent to the Commencement Date in respect of this Agreement.
12.4 Payments can be made online through Paypal, Paypal Subscription or via a Credit Card using 2CheckOut. These options will be presented through Suppliers online customer area in the course of the Order Process. If a payment is made via Paypal Subscription or 2CheckOut Subscription then the Customer will be automatically debited their nominated payment term (ie monthly, quarterly, yearly as may be applicable). The subscription can be canceled at any time through the payment method selected by Customer or by Supplier at Customers request.
Australian Customers can pay the Charges by Cheque or Electronic Funds Transfer (“EFT”) provided that the payment is received before the due date for payment of any Invoice. If completing payment via Cheque or EFT, remission advice must be emailed by Customer to email@example.com before the due date.
13.2 A party shall not, without the prior written approval of the other Party, disclose the other party’s Confidential Information.
13.2 A party shall not be in breach of clause 13.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
13.3 Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
13.4 Notwithstanding any other provision of this clause, the Supplier may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to the Supplier.
13.5 This clause shall survive the termination of this Agreement.
14. Third party materials and Indemnities
14.1 The Customer shall be responsible for:
14.1.1 obtaining all necessary permission, authorisations, licences and consents in relation to the use by the Supplier of third party materials in providing the Hosting Services; and
14.1.2 payment of all royalties and other fees associated with the use of such third party materials.
14.2 The Customer shall indemnify the Supplier in respect of any liability arising, directly or indirectly, from a failure by the Customer to observe its obligations arising under clause 14.1.
14.3 The Customer shall indemnify the Supplier against any Claim brought against it by any third party resulting from the provision of the Services by the Supplier in consequence of any breach by the Customer of the terms of this Agreement.
15. Implied terms
15.1 Subject to clause 15.2, any condition or warranty which might could or would otherwise be implied in this Agreement is hereby excluded.
15.2 Where legislation implies into this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of the Supplier for any breach of such condition or warranty shall be limited, at the option of the Supplier, to one or more of the following:
15.2.1 if the breach relates to goods:
18.104.22.168 the replacement of the goods or the supply of equivalent goods;
22.214.171.124 the repair of such goods;
126.96.36.199 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
188.8.131.52 the payment of the cost of having the goods repaired; and
15.2.2 if the breach relates to services:
184.108.40.206 the supplying of the services again; or
220.127.116.11 the payment of the cost of having the services supplied again.
16. Liability of Supplier
16.1 Except in relation to liability for personal injury (including sickness and death), the Supplier shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services (including the Services) supplied pursuant to this Agreement or in respect of a failure or omission on the part of the Supplier to comply with its obligations under this Agreement.
16.2 The Customer warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this Agreement, in the course of the Order Process or on the Suppliers website in determining to enter into this Agreement.
16.3 The Customer shall at all times indemnify and hold harmless the Supplier and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
- a breach by the Customer of its obligations under this Agreement; or
- any wilful, unlawful or negligent act or omission of the Customer.
16.4 In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to the Supplier which would not have been so apportioned but for such laws.
17.1 Without limiting the generality of any other clause in this Agreement, the Supplier may terminate this Agreement immediately if:
- the Customer is in breach of any term of this Agreement and such breach is not remedied within seven (7) days (or such longer period as may be agreed) of receipt of notice from the Supplier identifying the breach and requesting that it be remedied; or
- The Customer fails to pay any sum(s) due to the Supplier as and when they fall due.
17.2 The Supplier may, in addition to terminating the Agreement pursuant to clause 17.1:
17.2.1 Repossess any of its property in the possession, custody or control of the Customer;
17.2.2 Block the Customers website and to remove all data from it. The Supplier will hold such data for a period of 7 days in which time the Customer may collect it at its cost to the Supplier (charged at $150.00 per hour plus applicable GST) once such charges are paid failing which the Supplier may delete it.
17.2.3 Retain any moneys paid by Customer;
17.2.4 Charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
17.2.5 Cease to provide any other services to Customer;
17.2.6 Be regarded as discharged from any further obligations under this Agreement; and/or
17.2.7 Pursue any additional or alternative remedies provided by law.
17.3 The termination of this agreement by the Customer must be done in accordance with this clause.
17.3.1 The Customer may terminate this Agreement at any time by notice in writing (“cancellation request”) but only in accordance with the requirements of this clause.
17.3.2 If the Customer wishes to terminate this Agreement with the Supplier, or terminate any part of the Services, it must do so by completing an online cancellation form or requesting a manual cancellation of the whole or part of the Services in accordance with clause 17.3.3. Failure to provide a cancellation request by either means prior to the completion of the Initial Term will cause the Services to be automatically renewed from the date following the expiry of the Initial Term for the same period as the Initial Term (“additional subscription period”) and the Customer will be liable for, and immediately invoiced upon the commencement of, such additional subscription period.
17.3.3 For the avoidance of doubt the Supplier will not accept verbal instructions to terminate all or part of the Services. In order to comply with clause 17.3.2 the Customer must either:
18.104.22.168 Login to the client area (http://clients.cast-control.net), select from the Menu “Services” then “My Services” (“Logged in Cancellation Request”). Next to the service the Customer wishes to cancel it should select “View Details” then select “Management Actions” and complete the “Request Cancellation” form; or
22.214.171.124 Email the Supplier at firstname.lastname@example.org to request a manual cancellation of the Services (“Manual Cancellation Request”). In doing do Customer must clearly set out their original order identification and identify the specific service to be cancelled.
17.3.4 A Logged in Cancellation Request will result in an automatic response confirming receipt and the Services will be cancelled within 24 hours or otherwise at the end of the billing cycle or such other time selected by the Customer as part of the cancellation process.
17.3.5 The Supplier will process the cancellation request within 7 days of receipt of a Manual Cancellation Request. The Customer will on receipt of the Manual Cancellation Request receive an automated email response with a unique tracking number (“tracking number”). The tracking number must be retained by the Customer and is the only proof of notice of cancellation of the Services that will be accepted by the Supplier.
17.3.6 The requirements as to the procedure to be followed in order for the Customer to make a cancellation request in accordance with this provision and/or the Suppliers e mail address for this purpose may be amended from time to time by the Supplier by notice on the Suppliers web site.
17.3.7 This clause will apply to any and all subsequent additional subscription periods automatically coming into effect pursuant to clause 17.3.2.
17.3.8 The Customer will pay the Charges for any additional subscription period as set out on the Suppliers web site at the time of the commencement of the additional subscription period and thereafter in accordance with clause 12.1.
18. 30 Day Money Back Guarantee
18.1 The products described below are subject to a 30 day money back guarantee (“Guarantee”). Any product or service that is not expressly included in this clause is exempt from such Guarantee. All requests for a refund pursuant to the Guarantee must be made in accordance with this clause and will be considered and granted at the sole discretion of the Supplier.
18.2 Products and Services included in the Guarantee.
18.2.1 CLOUD Web Hosting Packages.
All other products and services are expressly excluded from the Guarantee.
18.3 In order to claim a refund:
18.3.1 A submission is required to be made within 30 days from the date that the particular service was provisioned by the Supplier.
18.3.2 The sole method of claiming under the Guarantee is by emailing the Supplier at email@example.com listing your order id and the name of the service. Upon receipt of this email, the Customer will automatically be provided with an acknowledgment receipt with a unique identification number. Should this not issue or be received, the matter will be treated by the Supplier as if it had not received the request.
18.3.3 Upon receipt of a claim under the Guarantee pursuant to cl 18.3.2 the Customer and the claim submitted will be vetted for eligibility. Customers found to be ineligible will be notified as soon as practical.
18.3.4 Should a Customer and a claim be determined as eligible, the Customer agrees to allow the Supplier 10 business days to resolve any issue(s) giving rise to the claim under the Guarantee. If at the end of the 10 business day period, and after consultation between both parties, the Customer remains unsatisfied with the outcome, the Supplier will provide a full refund of the amounts paid.
18.3.5 The Supplier will only provide refunds through the original payment method or by way of direct deposit to a nominated bank account within Australia.
18.3.6 The Supplier may reject any claim under the Guarantee:
126.96.36.199 that it reasonably believes to be non-genuine or fraudulent;
188.8.131.52 Where the Customer unreasonably fails to respond to any communication from the Supplier; or
184.108.40.206 The service giving rise to the claim has been used illegally or outside the terms of the particular service (such as for spam, trojan, resource abuse resulting in a suspension, or any other way we deem to be inappropriate, including a Web Site being compromised due to a vulnerability resulting from of an application installed by a User).
18.3.7 Should the service purchased be part of a product and/or service bundle that includes components that are ineligible for the Guarantee, only the eligible components in the bundle will be considered for refund as part of the Guarantee.
19. Force majeure
19.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
19.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.
19.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds seven (7) continuous days, either Party may immediately terminate this Agreement on providing notice in writing to the other Party. The provisions of clause 17.3 do not apply to termination on notice by the Customer pursuant to this clause but the Customer may utilise the provisions of that clause to terminate this Agreement should it wish and those options are then available.
19.4 If this Agreement is terminated pursuant to clause 19.3, the Supplier shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by the Supplier to the Customer.
20.1 The Supplier may sub-contract the performance of this Agreement, or any part of this Agreement, without obtaining the Customer’s prior consent.
20.2 The Customer shall not unreasonably object to the use of a Sub-Contractor by the Supplier in accordance with clause 20.1.
20.3 The Supplier may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services pursuant to this Agreement.
21. Entire agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
22.1 The documents comprising this Agreement shall be read in the following order of precedence:
22.1.1 The provisions as stated on the Suppliers Web site including the Order Process; and
22.1.2 These terms and conditions.
22.2 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
23. Assignment and novation
23.1 The benefit of this Agreement shall not be assigned by the Customer without the Supplier’s written consent.
23.2 The Supplier may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.
23.3 The Supplier may novate or assign this Agreement to a third party without the consent of the Customer where such novation or assignment is part of a re-structure by the Contractor of his business affairs.
23.4 The Customer will not otherwise unreasonably refuse to consent to the novation or assignment of the benefits of this Agreement by the Supplier to a third party.
24.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.
24.2 A waiver made by the Supplier pursuant by clause 24.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.
24.3 Subject to clause 24.1, any failure by the Supplier to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Supplier to the Customer, will not be construed as a waiver of the Supplier’s rights under this Agreement.
25. Dispute resolution
25.1 The parties agree not to commence any court proceedings without having attempted to resolve any dispute arising out of or in connection with this Agreement by mediation.
25.2 Pursuant to clause 25.1 if the parties cannot resolve the dispute by informal negotiations or discussions the parties will each appoint a representative who will meet at an agreed time and place in good faith for the purposes of attempting to resolve the dispute.
25.3 Neither party may commence court proceedings in relation to an alleged breach of this Agreement by the other party without having firstly complied with clause 25.2.
25.4 Nothing in this clause shall prevent a party from seeking urgent interlocutory relief from a competent court or tribunal.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the balance of the Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.
27. Supplier’s rights
Any express statement of the right of the Supplier under this Agreement is without prejudice to any other right of the Supplier expressly stated in this Agreement or existing at law.
28. Survival of agreement
28.1 Subject to any provision to the contrary, this Agreement shall endure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not endure to the benefit of any other persons.
28.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
29. Governing law
This Agreement will be governed by and construed according to the law in force in the state of New South Wales and the parties agree to submit to the jurisdiction of the courts of that state and any courts authorised to hear appeals from those courts.
30.1 Notices under this agreement may be delivered by hand, by mail, by facsimile or electronic mail to the parties given or usual business or contact addresses.
30.2 Notice will be deemed given:
30.2.1 in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
30.2.2 in the case of posting, three business days after despatch;
30.2.3 in the case of facsimile or electronic mail, upon receipt of transmission or sending if received on a business day or otherwise at the commencement of the first business day following transmission or sending.
31. Miscellaneous clauses
31.1 Change to terms on renewal
The Supplier may change the terms and conditions of this Agreement, including e mail contact details and cancellation procedures, at any time prior to the renewal of this Agreement by notice on the Supplier’s web site. This may include any increase to the Charges to come into effect immediately or on the renewal of this Agreement. Any such changes will be included in any automatic renewal of this Agreement to follow in accordance with clause 17.3.
31.2 Ongoing Notifications
31.2.1 In addition to general Account, Billing and Service communications, the Supplier will, from time to time, issue email notifications relating to its services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into this Agreement the Customer agrees to receive email communications until such time as it decides to opt-out of such communications and gives notice in writing to this effect to the Supplier.
31.2.2 Notwithstanding clause 32.2.1 the Customer will not be able to opt-out of any communications deemed by Supplier to be an essential part of the Services and which are notified as such on the Suppliers web site from time to time.
31.3 Acknowledgment of terms of this agreement
The Customer warrants by the completion of the Order Process that the Customer has read and understood these terms and conditions and all matters pertaining to this Agreement which are on the Supplier’s web site at the time of completion of the Order Process relevant to the provision of the Services.