This Agreement is made between HostAway Pty Ltd (ACN 137 264 398) (HostAway) and the user (Client). These are terms and conditions for the supply of virtual servers, data back-up services and hosting services including, email, domain name and website hosting (Services) offered from time to time on the HostAway web site at URL http://www.hostaway.net.au. Please read these terms and conditions carefully. It is a condition of the Client’s use of the Services that the Client complies with these terms and conditions.
1.1 These are the terms on which HostAway agrees to provide the Services to the Client. This Agreement commences on the date when the Client’s order for Services is accepted by HostAway.
2.1 HostAway will provide the Client with the Services, and the service levels, the Client has selected during the signup process, upon acceptance by HostAway.
2.2 HostAway will assign the Client a logon name and password which will provide the Client with access to upload and maintain the Client’s website and email access.
2.3 HostAway will advise the Client of the correct operational procedures, that the Client must follow.
2.4 HostAway may perform schedule maintenance to servers from time to time. HostAway will attempt to perform all scheduled maintenance at times which will affect the fewest Clients. If scheduled maintenance requires Services to be offline for more than 30 minutes HostAway will email details of the scheduled maintenance to the Client’s email account at least 48 hours in advance of the maintenance.
2.5 HostAway may also need to perform unscheduled maintenance. If unscheduled maintenance requires Services to be offline for more than 30 minutes, HostAway will email details to the Client’s email account as soon as is reasonably practical.
2.6 If requested by the Client as a separate service HostAway provides data backup services of the Client’s files for the purposes of disaster recovery. In the event of equipment failure or data corruption, HostAway will restore from the last known good archive. In all other cases, HostAway will create new backup versions of the Client’s website every 5 days commencing on the day the Services are provided to the Client. HostAway will only retain the backup version of the Client’s website for 5 days, at which time it will be deleted.
2.7 HostAway is not liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from its backup servers.
2.8 The Services are provided by HostAway from its data centres in Western Australia. HostAway reserves the right to migrate the Client’s website to a new operating system platform if its operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in HostAway’s opinion, becomes unreliable. HostAway will use reasonable endeavours to notify the Client via the contact details in its database but does not take any responsibility for website failure if the Client has failed to keep its contact details up-to-date or if the Client has not checked the operation of its website post-migration and notified HostAway of any required changes to the website configuration.
2.9 In contracting with HostAway for the Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by HostAway to deliver the Services.
3 Fees and payment
3.1 The Client acknowledges that the nature of the Services and the initial rates and charges have been communicated to the Client. In accordance with clause 12 below, the Client is aware that HostAway may prospectively change the specified rates and charges from time to time.
3.2 HostAway will issue invoices 21 days in advance on a monthly basis for the provision of the Services. The establishment of the Services are dependent upon receipt by HostAway of payment of stated fees and charges referred to in the initial invoice at least 14 calendar days prior to the Services initially being provided to the Client. Subsequent invoices will be issued to the Client 21 calendar days in advance and all payments are due within 14 calendar days of the date of the invoice in respect to the provision of Services for the following month.
3.3 All invoices are sent to the Client by email, to the email address provided by the Client. The Client must immediately advise HostAway of any change to the Client’s email address.
3.4 Credit cards that are declined for any reason are subject to a $1.00 declination fee.
3.5 HostAway is entitled to suspend or terminate the Client’s account and discontinued Services on accounts that reach 14 calendar days past due without notice to the Client. Services interrupted for non-payment are subject to a $10 reconnect charge for each Service. HostAway reserves the right to charge the Client interest in respect of late payment of any invoice at the interest rate quoted by the Commonwealth Bank of Australia at the date of invoice.
3.6 Termination or suspension does not relieve the Client of responsibility for the payment of all accrued charges, plus GST, reasonable interest and any collection fees.
3.7 Accounts that are in default may be turned over to an outside collection agency for collection. If the Client’s account is turned over for collection, it agrees to pay HostAway a “Processing and Collection” Fee of $50.
3.8 For the first month of this Agreement, HostAway, in its sole discretion, reserves the right to refuse the Services within 30 calendar days from receipt of payment from the Client for the Services. HostAway agrees to refund the Fees and is not liable to the Client for loss or damage that may result from HostAway’s refusal to provide the Services.
3.9 All payments to HostAway are non-refundable after the 30 calendar day money back period referred to in clause 3.8. This includes subsequent charges regardless of usage.
3.10 All overcharges or billing disputes must be reported within 60 calendar days of date of an invoice.
3.11 As referred to in clause 3.5, HostAway may temporarily deny Services or terminate this Agreement upon the failure of the Client to pay any outstanding fees when due. Such termination or suspension will not relieve the Client of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
4 Domain Names
4.1 If the Client has requested that HostAway registers a .com, .net, .org, .biz, .info or .name top level domain name (TLDs) on its behalf, the Client agrees that it has read and accepted the TLD policy applicable to .com, .net, .org, .biz, .info and .name domain names located at http://www.icann.org/en/policy/, specifically the Registrant Rights and Responsibilities located at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm.
4.2 The Client agrees that in the event of a dispute about a TLD, it will submit to and is bound by the Uniform Domain Name Dispute Resolution Policy (UDNDRP) located at http://www.icann.org/en/dndr/udrp/policy.htm and the Rules for UDNDRP located at http://www.icann.org/en/dndr/udrp/uniform-rules.htm.
4.3 If the Client has requested that HostAway registers a .com.au, .id.au, .net.au, .org.au or any other second level domain name (2LDs) on its behalf, the Client agrees that it has read and accept the published policies applicable to 2LDs located at http://www.auda.org.au/policy/current-policies/.
4.4 The Client agrees that in the event of a dispute in registering a 2LD or about a 2LD after registration it will submit to and is bound by the .au Dispute Resolution Policy (auDRP) and any variations to it from time to time bind HostAway. The auDRP can be viewed at http://www.auda.org.au.
4.5 If HostAway is requested to register or renew a domain on the Client’s behalf, the terms and conditions located at http://www.distributeit.com.au/terms-conditions.html are incorporated into these terms and conditions by reference.
4.6 The Client agrees that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, it is confirming its continued acceptance of those changes and modifications.
4.7 The Client must pay for any registration or delegation charges in advance at HostAway’s list price. The Client understands that it cannot register a domain name without paying for it in advance. HostAway is not obliged to provide the Client with information or assistance in respect of the domain name until it has received payment of domain name charges.
4.8 HostAway makes no representation and gives no warranty about any chosen domain name being available for registration or use by the Client.
4.9 The Client expressly authorises and directs HostAway to:
(a) be nominated as authorised billing contact for any domain name with the domain name registrar;
(b) renew any domain name registration on receipt of renewal notification from the domain name registrar and invoice the Client for the relevant charge in accordance with HostAway’s list price from time to time.
4.10 In respect of 2LDs, the Client acknowledges that HostAway is not liable for any loss or damage resulting from non-renewal of a domain name if it has failed to provide the appropriate warranty in respect of the Client’s continued eligibility to hold the domain name.
4.11 The Client indemnifies HostAway against all claims arising out of its registration and use and renewal of registration of any chosen domain name, unless and to the extent that the claim arises out of HostAway’s breach of this Agreement, or its negligent act or omission.
5 Retention or deletion of back-up data
5.1 The Client will not be able to restore files that HostAway has not completed copying, files that have been changed but not yet been backed up, or files or folders or disc drives that are not eligible for back up. Should any backed-up data be lost by HostAway, HostAway will undertake commercially reasonable efforts to create a replacement back-up from the files stored on the Client’s computer.
5.2 If this Agreement is terminated for any reason, HostAway may, without notice, delete or deny the Client access to any of the backed-up data that may remain in their possession or control.
5.3 The Client agrees that if:
(a) it marks a file to no longer be backed-up;
(b) it deletes a file from its computer;
(c) moves a file to a location on its computer that is not marked for back-up;
(d) it deletes a server that is not marked for back-up;
(e) its computer is unable to access HostAway; or
(f) it terminates this Agreement for any reason, that the files it has marked, deleted, moved or stored on a deleted, inaccessible, or unlicensed computer may not be available to the Client should the Client wish to restore them. Despite this, HostAway will use its best endeavours to ensure that such files are available to the Client in such an event.
6.1 HostAway warrants that:
(a) it will use its reasonable care and skill in providing the Services to the Client;
6.2 HostAway does not warrant that:
(a) the Services provided under this Agreement will be uninterrupted or error free;
(b) the Services will meet the Client’s requirements, other than as expressly set out in this Agreement; or
(c) the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services or systems of HostAway.
6.3 The Client warrants that:
(a) at the time of entering into this Agreement it is not relying on any representation made by HostAway which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other agreement, including any catalogues or publicity material which HostAway has produced;
(b) it will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by the Client onto or downloaded by the Client from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
(c) it is the owner of, or otherwise entitled to the use and enjoyment of, any intellectual property in using the Services.
(d) the Client must not use the Services for any illegal or fraudulent activities including activities which breach the Telecommunications Act 1997 (Cth), the Copyright Act 1968 (Cth), the Australian Broadcasting Services Act 1992 (Cth) as amended 2000 (Cth), or other applicable laws, whether relating to crime, intellectual property, censorship, defamation or otherwise;
(e) the Client will keep secure any passwords used to upload data to the Server; and
(f) the Client holds and will continue to hold the copyright in the data or that it is licensed and will continue to be licensed to use the data.
6.4 The Client agrees that its use of the Services is solely at its own risk.
7.1 Except as provided under clause 7.3, none of HostAway, its subsidiaries, officers, directors, employees, partners or suppliers is liable to the Client or any third party for:
(a) any special, punitive, incidental, indirect or consequential damages of any kind;
(b) any damages whatsoever, including, without limitation, those resulting from:
(i) loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;
(ii) the statements or actions of any employee or agent of HostAway;
(iii) any unauthorised access to or alteration of the Client’s website, transmissions or data;
(iv) any information that is sent or received or not sent or received;
(v) any failure to store or loss of data, files or other content;
(vi) the Client’s fraudulent, negligent or otherwise unlawful behaviour;
(vii) information, data or other material provided to HostAway by the Client or on the Client’s behalf;
(viii) an event beyond the control of HostAway; or
(ix) any Services that are suspended, delayed or interrupted.
7.2 Except as provided in clause 7.3, HostAway is not liable to the Client or any other person for:
(a) cost, loss or liability (including loss of profit or other consequential damage) arising from supply or failure or delay in supplying the Services;
(b) the content, context or confidentiality of any communications made using the Services; or
(c) loss or damage caused by third party software applications forming part of the Services.
7.3 Except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement, are excluded. Where any statute implies any term into this Agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under the term, the term is included in this Agreement. However, HostAway’s liability for any breach of the term is, if permitted by that statute, limited, at its option, to the following:
(a) In the case of services:
(i) the resupply of the services;
(ii) the cost of having the services resupplied.
(b) In the case of goods:
(i) the replacement of the goods;
(ii) the repair of any defect in the goods;
(iii) the cost of replacement of the goods.
8.1 The Client accepts responsibility for all information and material it uploads, communicates, stores, or otherwise uses over any Service, and indemnifies and holds HostAway, its affiliates, officers, servants, agents, subcontractors, employees and other personel harmless against any liability in relation to that information or material. The Client’s access and use such information and material at its own risk.
8.2 The Client indemnifies HostAway against all costs, expenses, loss or liability that HostAway may suffer (directly or indirectly) resulting from:
(a) the Client’s breach of these terms;
(b) the Client’s use or misuse of the Services;
(c) the use or misuse of the Services by any person using the Client’s account; and
(d) publication of defamatory, offensive or racially discriminatory material.
8.4 The Client is solely responsible for dealing with persons who access its data, and must not refer complaints or inquiries in relation to such data to HostAway.
9 Suspension and termination of Services
9.1 HostAway may from time to time without notice suspend the Service or disconnect or deny the Client access to the Service:
(a) during any technical failure, modification or maintenance involved in the Services, provided that HostAway will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
(b) if the Client fails to comply with any provision in this Agreement (including failure to pay charges due), or do, or allow to be done, anything which in HostAway’s opinion may have the effect of jeopardising the operation of the Services, until the breach (if capable of remedy) is remedied. This includes, but is not limited to the following:
(i) the transmission, distribution or storage of any material in contravention of any law or regulation;
(ii) the infringement of intellectual property rights or other proprietary rights of a third party;
(iii) the transmission, distribution or storage of any harmful content or software that contains viruses or any other computer code, files or programmes that may destroy, damage, impair, interfere or intercept any computer hardware or software, telecommunications system or network or programme, data or information including the Services;
(iv) collecting any personally identifiable information without prior consent and in contravention of any applicable law or regulation;
(v) the uploading, posting, linking or otherwise transmitting of any fraudulent goods, services, schemes or activities;
(vi) the uploading, posting, linking or otherwise transmitting of any material that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another party’s privacy or hateful or otherwise objectionable under any law or regulation; and
(vii) the unauthorized access to or use of any data, systems or network.
9.2 Not withstanding any suspension of any Service under this clause 9, the Client remains liable for all charges due throughout the period of suspension and up to the conclusion of the suspension period.
9.3 HostAway may without notice to the Client remove, amend or alter the Client’s data upon being made aware of:
(a) any claim or allegation; or
(b) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive, in breach of this Agreement, any laws, or in breach of a third party’s rights.
9.4 HostAway may end its Agreement with the Client and cease providing Services for any reason, on 30 days’ written notice to the Client. The Client may close its account with HostAway on 30 days’ written notice to HostAway.
9.5 If the Client’s account is closed it must pay all outstanding charges immediately and HostAway may delete any and all data from any storage media.
9.6 HostAway is under no obligation to provide the Client with a copy of the data if HostAway has suspended or terminated the Client’s access to the Service for the Client’s breach. If HostAway provides the Client with a copy of data, HostAway is entitled to charge a fee for this additional service.
9.7 Notwithstanding any other provision of this Agreement, a party is not liable for any failure to fulfil any term of this Agreement where that fulfilment is delayed, prevented, restricted or interfered with for any reason outside that party’s reasonable control, including but not limited to, fire, storm, flood, earthquake, accident, war, terrorism, labour dispute, materials or labour shortage other than its own staff or staff under its control, law or regulation or act or omission of any third person.
10.1 A notice, demand, consent or communication by the Client to HostAway under this Agreement (Client Notice) must be:
(a) in writing and in English directed to the recipient’s address for a Client Notices specified in this agreement, as varied by any notice; and
(b) hand delivered or sent by pre-paid post or facsimile or via email to the following:
(i) Company – HostAway Pty Ltd
(ii) Postal address: PO Box 2165 Malaga WA 6944
(iii) Email Address: email@example.com
(iv) Facsimile: (08) 9249-4446
10.2 Any notice given to the Client by HostAway under this Agreement, will be sent to the Client’s email address as provided by the Client.
10.3 All notices under this Agreement take effect when received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by email, on date sent by sender;
(c) if sent by prepaid post, two Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from outside Australia);
(d) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the notice in entirety unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire notice, but if the delivery, receipt or transmission is not on a Business Day or after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the Business Day after that delivery, receipt or transmission.
11.1 For the purpose of this clause, Confidential Information means any documentation or information whether provided on paper, electronically, verbally or otherwise and whether marked as confidential or otherwise, that relates to a party to this Agreement and that party’s personal, financial or business affairs or this Agreement, excluding any information that is already in the public domain. Confidential Information includes but is not limited to intellectual property, the product of any research, customer lists, financial information, and business plans.
11.2 Where a party (Receiving Party) comes into possession of Confidential Information relating to the other party (Disclosing Party), the Receiving Party must not, and must ensure that its Related Bodies Corporate, associates, contractors, agents, advisers and employees do not do any of the following:
(a) disclose that Confidential Information to any third party without the prior written consent of the Disclosing Party, or unless required by law.
(b) use the Confidential Information except to the extent necessary for the purposes of this Agreement.
(c) use the Confidential Information in any way or any time to the detriment of the Disclosing Party.
11.3 The obligations in this clause 11 survive the termination of this Agreement.
12.1 HostAway may vary these terms, the amount it charges for any Service, or the terms of the operation of the Service, at any time by general notice on a page of the internet referred to on the home page of the website at the URL http://www.hostaway.net.au. Any change in fees for the Services will only take effect at the end of the period for which the Client has pre-paid.
12.2 Use of the Services by the Client following the effective date of the change in the terms and conditions of this Agreement or the Services constitutes acceptance by the Client of any changes.
12.3 If the Client uses the Services after the end of the period for which it has paid, its use constitutes an acceptance of the amended terms.
12.4 These terms constitute the Agreement in its entirety and supersede prior agreements.
12.5 HostAway may from time to time run promotions and make special offers of limited time duration (Promotions). All Promotions are offered subject to their own terms and conditions and may be withdrawn or altered at HostAway’s discretion. The terms of a promotion will override these terms to the extent of any inconsistency.
13.1 Every covenant or provision in this Agreement applying to or binding, or a right conferred on, more than one person binds or benefits them jointly and each of them severally.
13.2 Any consent or approval referred to in, or required under, this Agreement from any party may be given or withheld, or given subject to any conditions, as that party in its absolute discretion thinks fit.
13.3 HostAway reserves the right to assign this Agreement provided that the assignment, not affect the rights and privileges granted to the Client.
13.4 The Client must not assign this Agreement without the prior written consent of HostAway.
13.5 The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
13.6 Each party must do, sign and deliver and must procure that each of its employees and agents does, signs, and delivers, all acts, things and agreements reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
13.7 This Agreement and any annexures is the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of this Agreement. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.
(a) If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable.
(b) If clause 13.7(a) is not possible, and that part does not go to the essence of the Agreement, that part will be severed from this Agreement and the rest of this Agreement continues to have full force and effect so as to give effect to the intention of the parties.
13.8 Subject to any provision to the contrary, this Agreement will inure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but will not inure to the benefit of any other persons.
13.9 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement remain in full force and effect following the expiration of the Agreement.
14 Governing law and jurisdiction
14.1 The law in force in Western Australia governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement. Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum where that venue falls within Western Australia.