1. WEB HOSTING AGREEMENT
This Hosting Agreement (the “Agreement“) governs your purchase and use, in any manner, of all hosting services ordered by you (“the Customer“) and accepted by Lazy Bear Trust ATF Lazy Bear Pty Ltd trading as theProduct, Coaching theProduct, Marketing theProduct, Hosting theProduct, Supporting theProduct, Empowering theProduct, & theProduct.com.au (“theProduct“). The hosting services subject to this Agreement are those services included in the Service Options selected by you during the ordering process (collectively, the “Services“). The available Service Options are located at https://hosting.theproduct.com.au/legal/web-hosting-agreement/ This Agreement describes the terms and conditions that apply to such purchase and use of the Services. You must accept the terms of this Agreement to use the Services.
By checking the box that says “I have read and accepted the terms of service” and registering for and using the Services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions contained herein as well as all policies and guidelines incorporated by reference. If you do not agree to the terms of this agreement or any modification, do not check the box and do not continue to use the services.
2. 1 Hosting Services
1.1 The Customer has ordered, and theProduct agrees to provide (upon acceptance of the Customer’s purchase request), the Services pursuant to the Service Options selected by the Customer. As part of the Services, theProduct will configure, install, house, maintain, upgrade, monitor, modify and operate the computer equipment, server(s), operating software, network equipment and components (collectively, “theProduct’s Systems“) as necessary to host and serve the Customer’s Content (as defined below) via the Internet in accordance with the Service Options. The Customer acknowledges that, as a part of theProduct’s Systems, theProduct may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the Services hereunder. Subject to the specific terms of this Agreement, theProduct retains sole right and control over the programming, content and conduct on theProduct’s Systems. The Customer is responsible for securing and maintaining its own Internet connectivity to access theProduct’s Systems.
1.2 Domain Name Services
1.2.1 At the election of the Customer and in accordance with the Service Options selected by the Customer, theProduct may provide domain name services, including the hosting of one domain name held by the Customer (or more than one domain name where a multiple domain name hosting package is ordered) (” DNS Services“) as part of the Services. If the Customer enters into the separate agreement governing the provision of domain names to the Customer (“the Domain Agreement“), the Customer shall provide theProduct with one registered domain name (or more than one registered domain names where a multiple domain name hosting package is ordered) (each registered domain name, for the purposes of the Agreement, a ” Customer Domain“). theProduct shall host the Customer Domain(s) during the effective term of this Agreement (provided that such domain does not violate any of our Policies http://www.splinteredmediahosting.com/legal/web-hosting-agreement/ , or any laws or regulations, theProduct agrees to transfer the Customer Domain at the direction of the Customer, upon termination of this Agreement, or otherwise in accordance with the Domain Agreement.
1.2.2 Any Customer Domain shall be hosted and administered in accordance with terms of the Domain Agreement (which can be found here http://www.splinteredmediahosting.com/legal/web-hosting-agreement/).
1.2.3 theProduct may assign IP addresses to the Customer as part of the Services. Any IP addresses or other network numbers assigned to the Customer by theProduct are and shall remain the property of theProduct. If the Customer terminates this Agreement or theProduct ceases to provide domain name services, theProduct may, in its sole discretion, reassign or reuse the IP addresses. theProduct has sole discretion as to the Internet routing of any theProduct network numbers. Upon termination, theProduct will not have, and the Customer hereby releases theProduct from, any responsibility or liability for any actions or costs related to the reassignment or reconfiguration of the Customer’s system for any new IP addresses.
1.3 theProduct shall use commercially reasonable efforts to make theProduct’s Systems and the Service available 99.5% of the time (the “Uptime Goal“). The Uptime Goal shall be measured within theProduct’s System on a monthly basis calculated to include 24 hours per day over each month, but excluding from the numerator and denominator in the calculation the duration in time of any temporary shutdowns due to scheduled maintenance (which will not exceed in the aggregate 10 hours per month), telecommunications or power disruptions caused by third parties, and any other causes beyond theProduct’s reasonable control. Any failure of theProduct to satisfy the Uptime Goal shall not constitute a breach of this Agreement. The Customer further acknowledges and agrees that its sole and exclusive remedy for any failure of theProduct to provide the services in accordance with the uptime goal is to terminate this Agreement pursuant to section 5.1.
1.4 If the Customer uses any bandwidth or storage space in excess of the Service Options, theProduct may, in its sole discretion, assess the Customer with additional charges, suspend the performance of the Services, or terminate this Agreement. In the event that theProduct elects to take any corrective action, the Customer shall not be entitled to a refund of any unused pre-paid fees. The Customer’s use of the Services and access to it is the Customer’s responsibility. The Customer is responsible for any unauthorised access to the Services resulting in bandwidth and/or storage usage exceeding the limits in the Order Form and resultant charges. Should shared server Customers exceed the specified limits, theProduct will ask them to upgrade to a larger plan or purchase additional bandwidth or storage space.
1.5 theProduct reserves the right to change or modify the Services, any Service Options, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion. theProduct will send a notice to the Customer of any such changes and will post a notice of such changes on theProduct’s web site www.splinteredmediahosting.com. Changes to this Agreement or Service Options will be effective 15 days after the notice is posted. Changes to any policy or guidelines governing the Services, including the Acceptable Use Policy, shall be effective upon posting to the theProduct site. The Acceptable use Policy forms part of this Agreement. If the Customer does not agree to any change to this Agreement, the Service Options, or any governing policy or guideline, the Customer’s sole remedy is to immediately terminate this Agreement pursuant to Section 5 (notwithstanding any notice period). The Customer’s continued use of the Services following theProduct’s posting of any changes to this Agreement, the Service Options, or any policy or guideline will constitute the Customer’s acceptance of such changes or modifications.
1.6 The Customer may change Service Options under the Agreement with appropriate prior notice.
2 VIRUS PROTECTION SOFTWARE/ANTI SPAM SOFTWARE
2.1 A virus protection service (“Virus Service“) is automatically activated for Customers holding ESSENTIALS, FAMILY, or BUSINESS hosting plans with theProduct (“New Servers”)
2.2 A spam filtering service (“Spam Service“) is available upon election to Customers on New Servers.
2.3 The Virus Service and the Spam Service (together, “Spam/Virus Services:” are not available to Customers on hosting plans other than the New Servers. (“Old Servers”) Customers who are on Old Servers who wish to have access to either or both of the Virus Service and Spam Service may request a priority transfer by theProduct from the Old Server to a New Server
2.4 The Customer acknowledges that no anti-virus software can guarantee to detect 100% of viruses and accepts use of the Spam/Virus Services at its own risk.
2.5 theProduct reserves the right to remove attachments from incoming email messages if there is any indication that the attachment is, or might be, infected with a virus.
2.6 The Customer acknowledge that theProduct cannot and does not warrant that the Spam/Virus Services installed on theProduct’s servers will detect all viruses present in e-mails scanned by and transmitted via theProduct’s servers.
2.7 theProduct makes no warranty that the Spam/Virus Services will be error free or free from interruption of failure.
2.8 theProduct expressly disclaims any express or implied warranty regarding system and/or the Spam/Virus Services availability, accessibility, or performance.
2.9 The Spam/Virus Services provide a high level of protection against viruses but the Customer acknowledges and agrees that it is solely responsible for protecting its property and email accounts from virus threats hacking or website ‘hijacking’.
2.10 theProduct offers no guarantee that the Spam/Virus Services will capture all unwanted email sent to the Customer, nor that all wanted email will be passed through the filter.
2.11 The Customer acknowledges that some email may be made unavailable when using the Spam/Virus Software, and by requesting to use the filter the Customer assumes all liability for any lost or altered email.
2.12 By choosing to use the Spam/Virus Software, the Customer agrees to hold theProduct faultless for any damages resulting from the use of the filtering service.
2.13 The software installed on theProduct’s servers minimises the risk of receiving SPAM and viruses through email delivered via theProduct’s servers only and does not mean a computer will not be affected by a virus. theProduct recommends that Customers also have Anti-virus programs for extra protection for viruses that may arrive through the Customers use of CD-ROM’s, floppy disks and downloads.
2.14 The Customer waives any claims against theProduct in connection with access to or use of the Spam/Virus Services installed on theProduct’s servers, including without limitation any claims based upon the deletion, misdirection or delay of emails and loss of, damage to, records or data. Due to the volatile nature of the Internet and its offerings, the accuracy of the performance of the Spam/Virus Services is not guaranteed by the supplier of the Software, nor is it guaranteed by theProduct.
2.15 Email transmitted from theProduct servers will not be scanned by the Spam/Virus Services until the Customer has indicated its willingness to utilise these services by:
(a) (a) activating the Spam/Virus Services via its web hosting account Personal Control Panel; or
(b) (b) sending an email to support [at] splinteredmediahosting [dot] com requesting that all email sent to its domain be scanned for viruses by the Spam/Virus Services.
2.16 Use of the Spam/Virus Services is subject to the Spam/Virus Service’s Owner’s terms and conditions located at http://www.ANTIVIRUSLINKGOESHERE.com/terms.php
3. 3 The Customer Content; Acceptable Use
3.1 Customer Content
3.1.1 The Customer hereby grants theProduct a limited, non-exclusive, royalty-free, non-sublicensable license to host, reproduce, transmit, cache, store, exhibit, publish, display, distribute, perform, edit, adapt, modify, create derivative works from, and otherwise use the Customer Content solely as necessary to provide the Services for the Customer. “Customer Content” means all materials, code, data, text (whether or not perceptible by users), metatags, multimedia information (including, but not limited to sound, data, audio, video, graphics, photographs, or artwork), the Customer Domain(s), e-mail, chat room content, bulletin board postings, or any other items or materials of the Customer or any third party that are provided or permitted by the Customer to reside on theProduct’s Systems. The Customer owns all copyright in the Customer Content within the scope of the Copyright Act 1968 (Cth).
3.1.2 The Customer shall be solely responsible for all Customer Content, including, without limitation, any content or materials of a third party that the Customer permits or enables to be posted onto or through theProduct’s Systems. Subject to the terms of this Agreement, the Customer shall (a) be solely responsible for the creation, posting, updating and maintenance of the Customer Content; and (b) manage, renew, create, delete, edit, maintaining and otherwise control the editorial content of the Customer Content. theProduct will not be responsible for reviewing the Customer Content prior to its posting by the Customer. theProduct will not be responsible for keeping and maintaining a current version of the Customer Content. The Customer shall be entirely responsible for obtaining any insurance in relation to any loss or damage caused to the Customer Content, or any other of the Customer’s data held in theProduct’s Systems.
3.1.3 The Customer is responsible for ensuring that the Customer Content will be “server ready” and otherwise remain fully compatible with theProduct’s Systems (including all software and operating systems). The Customer acknowledges that it is responsible for having the necessary knowledge and expertise to maintain the Customer Content on theProduct’s Systems. theProduct reserves the right to remove any the Customer Content that is not compatible with theProduct’s Systems. Upon request from the Customer, and at the Customer’s sole expense, theProduct may assist the Customer in resolving any compatibility problems on a time and materials basis.
3.2 Acceptable Use
(a) 3.2.1 The Customer shall at all times adhere to all applicable laws, rules and regulations and to theProduct’S then current Acceptable Use Policy as set out herein as Schedule A. Any breach of this Policy by the Customer will entitle theProduct to elect to terminate this Agreement, without notice to the Customer.
3.2.2 theProduct may inspect the Customer Content or investigate any alleged violation of this Agreement, theProduct’s policies or any third-party complaints. theProduct will not access or review the contents of any e-mail or other stored electronic communications except as required or permitted by applicable law or legal process. In the event that theProduct determines in its sole and reasonable discretion that any the Customer Content or conduct or actions of the Customer (including its employees and users) are objectionable, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, theProduct may take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, the Customers and/or third parties. Such corrective action includes, but is not limited to: (a) issuing a warning; (b) immediately suspending or terminating the Services; (c) restricting or prohibiting access to any the Customer Content that is objectionable or otherwise violates this Agreement or applicable policy; and/or (d) disabling or removing hypertext links, the Customer Content or the content of any third party from theProduct’s Systems. In the event theProduct takes corrective action, theProduct shall not refund any fees paid in advance of such corrective action. Without limiting the foregoing, it is theProduct’s policy to terminate its services for repeated violations of theProduct’s Acceptable Use Policy. The Customer agrees that theProduct is not liable for any defamatory or illegal content or any content contrary to theProductS’ Acceptable Use Policy. The Customer warrants to indemnify theProduct for any and all liability, damages, awards of costs (on an indemnity basis or otherwise), legal costs (on a solicitor-client basis) and disbursements (including barristers’ fees) arising by way of the provision of theProduct’s Services and Systems to the Customer resulting in the perpetuation of any defamatory material, or the infringement of any third parties’ intellectual property rights, or the breach of any other law of Australia or elsewhere (as applicable) as a result of the Customer Content.
3.2.3 To comply with applicable laws and lawful governmental requests, to protect theProduct’s Systems and theProduct’s Customers, or to ensure the integrity and operation of theProduct’s business and systems, theProduct may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (ie. name, e-mail address, etc.), IP addressing and traffic information, usage history, and the Customer Content residing on theProduct’s Systems.
4. 4 Fees and Payment Terms
4.1 The Customer agrees to pay to theProduct’s then current set up and service fees in accordance with the Service Options and any and all costs and expenses incurred by theProduct in connection with the Services provided to the Customer by theProduct under this Agreement. For billing purposes, the service start date will be the date of the order. The Customer will be billed for (a) any setup fees; and (b) the monthly, six monthly or annual fee for the Services at the rates and charges set out on the theProduct Web site at www.splinteredmediahosting.com. Henceforth, the Customer will be sent a renewal notice annually 30 days prior to the anniversary of the order. If the renewal fee is not paid by the anniversary of the order, a late fee can and will be applied at the discretion of theProduct. Failure to finalize all outstanding invoices, including any and all applicable late fees within 14 days of this anniversary date lapsing, the Services can and will be cancelled at the discretion of theProduct and the Customers web content and MX records deleted without notice.
4.2 All fees shall be payable within 14 days of issue of any invoice. All fees, including recurring fees, will be charged to the Customer’s PayPal or credit card of record unless other arrangements have been specifically approved by theProduct at theProduct’s sole discretion. For billing purposes, fractions of units shall be rounded up. All charges are considered valid unless disputed in writing within 30 days of the invoice date. The Customer agrees to pay all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services provided to the Customer, other than taxes based on theProduct’s net income. The Customer’s failure to fully pay any fees and taxes on the applicable due date will be deemed a breach of this Agreement, justifying theProduct’s suspension of its performance of the Services (including all e-mail and the deletion of the Customer Content) and, in theProduct’s sole discretion, termination of this Agreement. Accounts in default are subject to an interest charge on the outstanding balance equal to the lesser of 10% per month or the maximum rate permitted by law. Any termination by theProduct for the Customer’s failure to pay will not relieve the Customer from paying past due fees plus interest. In the event of collection enforcement, the Customer shall be liable for any costs associated with such collection, including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees.
5. 5 Term of Service
5.1 The Agreement shall remain in full force and effect until terminated by either party. Either party may terminate this Agreement for any reason by providing the other party 7 days prior written notice; provided that, theProduct may immediately terminate or suspend the Services and this Agreement upon written notice for the Customer’s or its users’ violation of the Acceptable Use Policy. Upon any termination of this Agreement, theProduct will not refund, and the Customer is not eligible for, any remaining portion of any annual fee that already has been charged.
5.2 Should this Agreement be terminated for any reason, theProduct will not be liable to the Customer because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with the Customer’s business, or for any other reason whatsoever flowing from such termination. The Customer is solely responsible for procuring any new or replacement service upon termination. Any termination of this Agreement shall not relieve the Customer of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by the Customer to theProduct as provided in this Agreement. Upon termination of this Agreement, the following sections shall survive and remain in effect in accordance with their terms: Sections 5.2 and 6 to 11 inclusive.
6. 6 Reservation of Rights
theProduct is the exclusive owner of and retains all right, title and interest (including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights thereto (collectively, “Proprietary Rights“)) to all materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by theProduct or its suppliers pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by theProduct to provide the Services to the Customer. The Customer is the exclusive owner of and retains all right, title and interest (including all Proprietary Rights) to the Customer Content. Note that theProduct does not guarantee retention of the Customer Content beyond 30 days after termination.
7. 7 Warranties and Representations
7.1 The Customer represents, warrants and covenants to theProduct that: (a) the Customer Content or its use shall not violate, misappropriate or infringe any Proprietary Rights or any other personal, privacy or moral right arising under the laws of any jurisdiction of any person or entity, nor shall same constitute a libel or defamation of any person or entity; (b) the Customer Content will not contain any harmful components, including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs; (c) the Customer has all right, power and authority necessary to enter into this Agreement and use the Customer Content as described herein; and (d) the Customer shall comply with all applicable laws, rules and regulations (including, but not limited to, export control, decency, privacy and intellectual property laws).
7.2 theProduct exercises no control over, and accepts no responsibility for, third-party content of the information passing through theProduct’s System, network hubs and points of presence, or the Internet. The Customer acknowledges that theProduct’s systems (including any software and any other items used or provided by theProduct in connection with any services hereunder) are provided as represented at the execution of this Agreement. theProduct does not make any representations or warranties of any kind, express or implied, with respect to the performance of the services (including the DNS services therein) or theProduct’s systems, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement or any implied warranty arising by usage of trade, course of dealing or course of performance. theProduct makes no representations or warranties whatsoever that the services and theProduct’s systems will be uninterrupted, always accessible, free of harmful components, accurate or error-free.
8. 8 Limitation of Liability
theProduct shall have no liability for any consequential, exemplary, special, incidental, or punitive damages even if theProduct has been advised of the possibility of such damages. In no event shall theProduct have any liability for unauthorised access to, or alteration, theft or destruction of information distributed or made available for distribution via the services through accident, fraudulent means or devices (including , without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information) . The total liability of theProduct to the Customer for any reason and upon any cause of action shall be limited to the amount actually paid to theProduct by the Customer under this Agreement during the 12 months immediately preceding the date on which such claim arose. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees for the services set by theProduct hereunder have been and will continue to be based upon this allocation of risk.
The Customer will have access to a variety of third party sources of content through the use of the Web site and the Internet. theProduct has made no effort to verify the accuracy of suitability of any information contained in any such sources, including, without limitation, any other web site that the Customer can link to from the Web site. Accordingly theProduct has no liability or responsibility whatsoever for any content provided by any other person contained on or available through the Web site. The Customer acknowledges and agrees that any access, use or reliance on any such third party content is at the Customer’s own risk. The Customer acknowledges that, except for information, products or services clearly identified as being supplied by theProduct, theProduct does not operate, control or endorse any information, products or services of any other person on the Web site or the Internet in any way. The Customer also acknowledges and agrees that theProduct does not guarantee or warrant that files available for downloading from the Web site or through the Internet will be free of infection or viruses, worms, Trojan horses or other malicious code that may adversely effect the Customer, the Customer’s computer or computer systems or the customer’s data or files.
9. 9 Indemnification
The Customer will indemnify, hold harmless, and defend theProduct and all employees, officers, directors and agents of theProduct and any of its affiliates from and against any and all claims, suits, actions, demands or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to: (a) any violation or breach by the Customer of any term, representation or warranty, or policy of this Agreement; (b) the Customer’s unlawful or improper use of the Services; (c) any damages caused to theProduct’s Systems by the Customer Content; (d) any actual or alleged violation of any Proprietary Rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) by the Customer Content.
10. 10 ARCHIVING OF DATA
For all shared web hosting environments, theProduct will attempt archive the Customer’s data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, theProduct will restore from the last known good archive. In the event of corruption of all of theProduct’s archives, or in the event that an old archive is used to restore data, the Customer should be prepared to upload its data to its web site. For Dedicated Server or Virtual Machine (‘VPS’) hosting environments, while a backup storage location such as a NAS may be included as part of or in addition to the service, the configuration, management and/or maintenance and of these backups is strictly the responsibility of the client. theProduct will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from theProduct backups or the backups taken or managed by the client.
11. 11 Miscellaneous
1. 11.1 This Agreement is governed by the law applicable in the State of Victoria in Australia. The Customer and theProduct agree to irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Queensland.
11.2 The Customer agrees that, unless other instructions are posted on theProduct’s web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail return receipt requested, in accordance with the most current contact information the Customer has provided to theProduct and the contact information for theProduct posted on theProduct’s web site. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission. Any failure by the Customer to update the Customer’s e-mail address will not invalidate this provision. The Customer is solely responsible for ensuring that its Customer’s contact details are current and correct, that its email services is operational and that it checks its emails regularly. The Customer must inform theProduct of any changes to its contact details by email to support [at] splinteredmediahosting [dot] com as soon as possible. If theProduct sends an email to the Customer’s current email address as listed in the Customer’s contact details, the Customer is deemed to have received that email and theProduct is not obliged to take any further action to confirm that the Customer has received, opened and/or read the email unless the Customer promptly notifies theProduct that the email was not delivered to its email address. If theProduct receives an automated email non-delivery notification indicating that the Customer has not received the email that theProduct has sent the Customer regarding the Services, theProduct will use reasonable endeavours to attempt to contact the Customer using the other contact details the Customer submitted, including non-electronic means, but does not guarantee that theProduct will be able to contact the Customer.
2. 11.3 Words or expressions used in this clause 11.3 which are defined in theA New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if not so defined, then which are defined in the Trade Practices Act 1974 (Cth), have the same meaning in this clause.
For the purposes of this Agreement where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
Despite any other provision in this Agreement, if theProduct makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(a) (a) the consideration payable or to be provided for that supply under this Agreement but for the application of this clause ( GST exclusive consideration) is increased by, and the Customer must also pay to theProduct, an amount equal to the GST payable by the theProduct on that supply; and
(b) (b) the amount by which the GST exclusive consideration is increased must be paid to theProduct by the Customer without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
If a payment to the Customer under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by the Customer, then the payment will be reduced by the amount of any input tax credit to which the Customer are entitled for that loss, cost or expense.
theProduct, having regard to Part VB of the Trade Practices Act 1974 (Cth), may refund to the Customer part or all of any amount paid by the Customer under this Agreement during the New Tax System transition period, the amount of the refund to be determined in the sole discretion of theProduct.
theProduct will provide a tax invoice.
If the Customer objects to the amount of any refund or adjustment determined by theProduct under this clause, the Customer and theProduct will negotiate in good faith in an attempt to agree on the amount of the refund or adjustment. If the Customer and theProduct cannot agree on the amount of the refund or adjustment, then the refund or adjustment must be determined by a person:
(c) (a) who has at least 10 years experience as a lawyer;
(d) (b) who is appointed by the parties but if the parties cannot agree who to appoint within 28 days after one of them notifies the other that it requires a person to be appointed for the purposes of this clause, then that person is to be nominated at the request of either of the parties by the President of the Queendsland Law Society or by the President’s nominee;
(e) (c) who the Customer and DRNA must instruct to give a written decision with reasons;
(f) (d) who acts as an expert and not as an arbitrator;
(g) (e) whose decision except in the case of obvious error is final and binding; and
(h) (f) whose cost the Customer and theProduct must bear equally.
Pending that person’s determination, the parties must continue to comply with this Agreement, including, without limitation, making all payments provided for under this Agreement.
Any information given to the expert by theProduct including, without limitation, confidential information, is for the use of the expert only and under no circumstances (except if required by law) is the information to be disclosed.
3. 11.4 If the Customer are entitled to obtain an Australian Business Number (ABN) under the A New Tax System (Australian Business Number) Act 1999 (Cth) the Customer:
(a) (a) warrant that the Customer have an ABN and have provided the applicable registration number to theProduct; and
(b) (b) must:
(i) (i) continue to have an ABN during the term of this Agreement;
(ii) (ii) quote its ABN to theProduct;
(iii) (iii) advise theProduct if its ABN changes or is cancelled; and
(iv) (iv) indemnify theProduct for any loss or damage suffered by theProduct or any tax, charge, fine, penalty or other impost which theProduct incurs or becomes liable to pay, as a result of its breach of any of the warranties contained in this clause.
4. 11.5 Increased costs
(a) (a) To the extent that any supply by theProduct under this Agreement is input taxed (input tax supply), theProduct is entitled to increase:
(i) (i) any amount expressed as payable; and
(ii) (ii) anything else to be provided,
by the Customer for that input tax supply otherwise under or in connection with this agreement (consideration for the input tax supply ) by:
(iii) (iii) such amount as theProduct determines in its discretion is reasonably necessary for theProduct to recover from the Customer (in addition to the consideration for the input tax supply) the amount of the input tax credits in relation to acquisitions made by theProduct and used by it wholly or partly in making the input tax supply, to which theProduct would have been entitled had the input tax supply been a taxable supply by theProduct; or
(iv) (iv) such lesser amount as theProduct determines.
(b) (b) theProduct may make a determination under clause 11.5(a)(iii) above or 11.5(a)(iv) above by notice in writing to the Customer ( theProduct determination) and each theProduct determination will be conclusive evidence of the making of the determination. The amount specified in any theProduct determination must be paid by the Customer immediately on receipt of the theProduct determination without objection and without any set off or deduction of any other amount payable under this Agreement.
5. 11.6 Waiver of any provision of or right under this Agreement:
(a) (a) must be in writing signed by the party entitled to the benefit of that provision or right; and
(b) (b) is effective only to the extent set out in any written waiver.
6. 11.7 In this agreement, except where the context otherwise requires:
(a) (a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) (b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) (c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) (d) a reference to $ is to Australian currency;
(e) (e) a reference to time is to Australian eastern standard time;
(f) (f) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(g) (g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(h) (h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;
(i) (i) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
(j) (j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(k) (k) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(l) (l) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(m) (m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(n) (n) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.
If the Customer has any questions relating to this Agreement, it may contact theProduct at support [at] splinteredmediahosting [dot] com.
12. SCHEDULE A: ACCEPTABLE USE POLICY
This Acceptable Use Policy (the “Policy“) describes the proper kinds of conduct and prohibited uses of the hosting and e-mail services (the “Services“) provided by theProduct. The Policy forms part of the Agreement. This Policy is not exhaustive and theProduct reserves the right to modify it at any time, effective upon posting of the modified version at http://www.splinteredmediahosting.com/legal/web-hosting-agreement/ or such other location designated by theProduct. By using theProduct’s Services, you agree to abide by the then current version of this Policy.
Any violation of this policy may result in the suspension or termination of the services and such action as theProduct deems appropriate as further described in the hosting Agreement. Any repeated violation of this policy will result in the termination of the hosting Agreement. Indirect or attempted violations of this policy, and actual or attempted violations by a third party on your behalf, shall be considered violations of the Policy by you.
theProduct’s Services enable you to host and serve your Web site and all related content, including, but not limited to, programs, program scripts, e-mail, text, bulletin board postings, hypertext links, meta tags, domain names, pictures, graphics, forums, interactive media, and audio/visual materials that you or a third party (collectively, “Customer Content“) posts on your Web site or other equipment, servers, software and network of theProduct (collectively, “theProduct’s Systems“). Generally, theProduct does not actively monitor, censor, or directly control any information that is stored on or transmitted over theProduct’s Systems. theProduct cannot and does not warrant, verify or guarantee the quality, accuracy, safety or integrity of your Customer Content or other materials or information that you or a third party may post or access through the Services. You are solely responsible for all of the Customer Content and your and your users’ use of theProduct’s Services and your Web site.
14. No Illegal or Harmful Uses
theProduct’s Services and Systems may be used only for lawful purposes. Transmission, distribution or storage of any material or any activity in violation of any applicable law or regulation, including but not limited to gambling or adult material, are strictly prohibited. The following non-exhaustive list describes the kinds of illegal or harmful conduct that are prohibited. theProduct reserves the right to restrict or prohibit any and all uses or content that it determines in its sole discretion is harmful to its systems, network, reputation, good will, other theProduct Customers, or any third party.
Excessive Use of Server Resources. The use of programs and scripts that cause excessive stress to servers including, without limitation, chat scripts is prohibited on shared server accounts. This is due to the resultant reduction in resources and deterioration of service for other the Customers on the same shared server. Such programs and scripts may only be used with dedicated server accounts. Additionally, excessive use and/or violation of bandwidth/storage maximums are prohibited on all web hosting accounts. Determination of excessive use is at theProduct’s sole discretion.
Infringement. Infringement of intellectual property rights or other proprietary rights including, without limitation, material protected by copyright, trade mark, patent, trade secret or other intellectual property right used without proper authorisation. Infringement may result from the unauthorised copying and posting of pictures, photographs, logos, registered or unregistered trade marks, software, articles, musical works, and videos.
Illegal Materials. Disseminating or hosting material that is, without limitation, unlawful, obscene, harmful, invasive of privacy or publicity rights, abusive, or otherwise objectionable, under the laws of any jurisdiction.
Harmful Content. Disseminating or hosting harmful content or software including, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information including the Services.
Fraudulent Conduct. Offering or disseminating fraudulent goods, services, schemes, activities (ie. gambling) or promotions (ie. make money fast schemes, chain letters, and pyramid schemes); fraudulent submission or use of personal or financial information; or engaging in any practice that constitutes an unfair or deceptive trade practice.
Adult Only Material. Offering or Disseminating or hosting material that is, without limitation, pornographic, excessively violent, satanic or occult, or not suitable for persons under the age of 18.
Anti-Political or Disseminant. Offering or Disseminating or hosting material that is, without limitation, anti-political, anarchist, hateful, racist, encouraging terrorist activities or aggressive and violent protests or actions. While we respect the right to free speech, content determined to be encouraging violent or illegal activities or preventing the free speech of others is not permitted.
15. Maintenance of Security and Integrity
Violations of system or network security are prohibited, and may result in criminal and civil liability. theProduct will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
Hacking. Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.
Interception. Unauthorised monitoring of data or traffic on any network or system of theProduct or any third party.
Intentional Interference. Interference with service to any user, host or network including, but not limited to, denial of service attacks, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system and broadcast attacks.
Falsification of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.
Avoiding System Restrictions. Using manual or electronic means to modify usage details for billing reasons or to avoid any use limitations placed on the Services such as access and storage restrictions.
16. No E-Mail Abuses
You may not distribute, publish, send or incite unsolicited mass e-mailings, promotions, advertising, or solicitations (such as “spam”), including, without limitation, commercial advertising, informational announcements, and mail bombing. You may not use theProduct’s mail server or a third party mail server to relay mail without the express permission of the account holder or the third party site. Posting the same or similar message to one or more newsgroups (including, but not limited to, the use of chain letters, excessive cross-postings or multiple-postings) is explicitly prohibited.
17. No Service Bureaus
You may not sell, assign, rent, transfer, distribute, act as a service bureau, or grant rights in the Service to any other person without the express prior written consent of theProduct.
The Customer shall at all times adhere to all applicable laws, rules, and regulations and to theProduct’s then current Acceptable Use Policy (or such other location as theProduct may specify). In particular the Customer may not utilise the Services:
(a) (a) in connection with any tortious or actionable activity;
(b) (b) to publish or disseminate information that:
(i) (i) constitutes slander, libel or defamation;
(ii) (ii) publicises the personal information or likeness of a person without that person’s consent; or
(iii) (iii) otherwise violates the privacy rights of any person; or
(c) (c) to threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law;
(d) (d) in connection with any disruptive or abusive activity;
(e) (e) to cause denial of service attacks against theProduct or other network hosts or Internet users or to otherwise degrade or impair the operation of theProduct’s servers and facilities or the servers and facilities other network hosts or Internet users;
(f) (f) to post messages or software programs that consume excessive CPU time or storage space;
(g) (g) to offer mail services, mail forwarding capabilities, POP accounts or autorecorders other than for the Customer’s own account;
(h) (h) to subvert, or assist others in subverting, the security or integrity of any theProduct system, facility or equipment;
(i) (i) to gain unauthorised access to the computer networks of theProduct or any other person;
(j) (j) to provide passwords or access codes to persons not authorised to receive such materials by the operator of the system requiring the password or access code;
(k) (k) to:
(i) (i) forge the signature or other identifying mark or code of any other person;
(ii) (ii) impersonate or assume the identity of any other person; or
(iii) (iii) engage in any other activity (including ‘spoofing’) to attempt to deceive or mislead other persons regarding the true identity of the Customer (excluding the use of anonymous remailers or Internet nicknames);
(l) (l) to conduct port scans or other invasive procedures against any server (except any server for which the Customer is an authorised system administrator);
(m) (m) to distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial email or spam;
(n) (n) in any manner that might subject theProduct to unfavourable regulatory action, subject theProduct to any liability for any reason, or adversely affect theProduct’s public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by theProduct in its sole discretion; or
(o) (o) in any other manner to interrupt or interfere with the Internet usage of other persons.
18. Enforcement by theProduct
theProduct reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of theProduct’s Systems. As described in the Hosting Agreement, theProduct reserves the right and has absolute discretion to (a) enforce this Policy and the terms of the Hosting Agreement and (b) remove or disable access, screen or edit any Customer Content that violates these provisions or is otherwise objectionable. Without limitation, theProduct also reserves the right to report any activity (including the disclosure of appropriate Customer information) that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. theProduct also may without limitation cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct or infringement of any third party’s legal rights by providing network and systems information related to allegedly illegal, harmful, infringing or objectionable content. theProduct reserves all rights to identify the Customer by its IP address to third parties within the scope of the Privacy Act 1988 (Cth) and the Information Privacy Act 2000 (Qld.).