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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 Web Access Pty Ltd, trading as WebAccess. The hosting services
subject to this Agreement are any services, other than domain name services, purchased on the WebAccess web site
by you during the ordering process (collectively, the "Services"). The available Service Options are located
at http://www.webaccess.com.au/ 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.
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1
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HOSTING SERVICES
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1.1
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The Customer has ordered, and WebAccess 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, WebAccess will
configure, install, house, maintain, upgrade, monitor, modify and operate the computer equipment, server(s),
operating software, network equipment and components (collectively, "WebAccess 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 WebAccess Systems, WebAccess 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, WebAccess retains sole right and control
over the programming, content and conduct on WebAccess Systems. The Customer is responsible for securing and
maintaining its own Internet connectivity to access WebAccess Systems.
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1.2
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Domain Name Services
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1.2.1
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At the election of the Customer and in accordance with the Service Options selected by the Customer,
WebAccess 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 WebAccess 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"). WebAccess 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.webaccess.com.au/legal/policies.html ,
or any laws or regulations, WebAccess agrees to permit the transfer of the Customer Domain at the
direction of the Customer, upon termination of this Agreement, or otherwise in accordance with the
Domain Agreement.
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1.2.2
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Any Customer Domain shall be hosted and administered in accordance with terms of the Domain Agreement
(which can be found here http://www.webaccess.com.au/legal/policies.html).
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1.2.3
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WebAccess may assign IP addresses to the Customer as part of the Services. Any IP addresses or other
network numbers assigned to the Customer by WebAccess are and shall remain the property of WebAccess.
If the Customer terminates this Agreement or WebAccess ceases to provide domain name services,
WebAccess may, in its sole discretion, reassign or reuse the IP addresses. WebAccess has sole
discretion as to the Internet routing of any WebAccess network numbers. Upon termination, WebAccess
will not have, and the Customer hereby releases WebAccess 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.
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1.3
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WebAccess shall use commercially reasonable efforts to make WebAccess Systems and the Service available 99.9%
of the time (the "Uptime Goal"). The Uptime Goal shall be measured within WebAccess 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 5 hours per month), telecommunications or power disruptions caused by third parties,
and any other causes beyond WebAccess reasonable control. Any failure of WebAccess 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 WebAccess to provide the services in accordance with the uptime goal
is to terminate this Agreement pursuant to section 5.1.
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1.4
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If the Customer uses any bandwidth or storage space in excess of the Service Options, WebAccess 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 WebAccess 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, WebAccess will ask them to upgrade to a
larger plan or purchase additional bandwidth or storage space.
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1.5
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WebAccess 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.
WebAccess will send a notice to the Customer of any such changes and will post a notice of such changes on
WebAccess web site http://www.webaccess.com.au/. 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 WebAccess 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 WebAccess 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.
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1.6
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The Customer may change Service Options under the Agreement with appropriate prior notice.
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2
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VIRUS PROTECTION SOFTWARE/ANTI SPAM SOFTWARE
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2.1
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A virus protection service ("AntiVirus Service") is available to selected plans ordered on the
WebAccess web site from 01/08/2004 onwards ("New Servers")
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2.2
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A spam filtering service ("AntiSpam Service") is available to selected plans ordered on New Servers.
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2.3
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The AntiVirus Service and the AntiSpam Service (together, "AntiSpam/AntiVirus 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 WebAccess from the Old Servers to a New Servers. Fees will apply.
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2.4
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The Customer acknowledges that no anti-virus software can guarantee to detect 100% of viruses, and that no
anti-spam software can guarantee to be 100% accurate in its filtering of spam, and accepts use of the
AntiSpam/AntiVirus Services at their own risk.
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2.5
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WebAccess 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.
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2.6
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The Customer acknowledge that WebAccess cannot and does not warrant that the AntiSpam/AntiVirus Services
installed on WebAccess servers will detect all viruses present in e-mails scanned by and transmitted via
WebAccess servers.
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2.7
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WebAccess makes no warranty that the AntiSpam/AntiVirus Services will be error free or free from interruption
of failure.
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2.8
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WebAccess expressly disclaims any express or implied warranty regarding system and/or the AntiSpam/AntiVirus
Services availability, accessibility, or performance.
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2.9
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The AntiSpam/AntiVirus 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'.
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2.10
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WebAccess offers no guarantee that the AntiSpam/AntiVirus Services will capture all unwanted email sent to
the Customer, nor that all wanted email will be passed through the filter.
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2.11
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The Customer acknowledges that some email may be made unavailable when using the AntiSpam/AntiVirus Software,
and by requesting to use the filter the Customer assumes all liability for any lost or altered email.
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2.12
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By choosing to use the AntiSpam/AntiVirus Software, the Customer agrees to hold WebAccess faultless for any
damages resulting from the use of the filtering service.
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2.13
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The software installed on WebAccess servers minimises the risk of receiving SPAM and viruses through email
delivered via WebAccess servers only and does not mean a computer will not be affected by a virus. WebAccess
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, downloads or any other means.
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2.14
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The Customer waives any claims against WebAccess in connection with access to or use of the AntiSpam/AntiVirus
Services installed on WebAccess 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 AntiSpam/AntiVirus Services is not
guaranteed by the supplier of the Software, nor is it guaranteed by WebAccess.
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2.15
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Email transmitted from WebAccess servers will not be scanned by the AntiSpam/AntiVirus Services until the
Customer has indicated its willingness to utilise these services by activating the AntiSpam/AntiVirus
Services via its web hosting account Client Control Panel.
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3
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THE CUSTOMER CONTENT; ACCEPTABLE USE
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3.1
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Customer Content
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3.1.1
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The Customer hereby grants WebAccess 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 WebAccess
Systems. The Customer owns all copyright in the Customer Content within the scope of the Copyright
Act 1968 (Cth).
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3.1.2
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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 WebAccess 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. WebAccess will not be responsible for reviewing the Customer Content prior to its
posting by the Customer. WebAccess 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 WebAccess Systems.
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3.1.3
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The Customer is responsible for ensuring that the Customer Content will be "server ready" and
otherwise remains fully compatible with WebAccess 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 WebAccess Systems. WebAccess reserves the right to
remove any the Customer Content that is not compatible with WebAccess Systems. Upon request from
the Customer, and at the Customer's sole expense, WebAccess may assist the Customer in resolving
any compatibility problems on a time and materials basis.
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3.2
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Acceptable Use
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3.2.1
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The Customer shall at all times adhere to all applicable laws, rules and regulations and to WebAccess
then current Acceptable Use Policy as set out herein as Schedule A. Any breach of this Policy by the
Customer will entitle WebAccess to elect to terminate this Agreement, without notice to the Customer.
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3.2.2
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WebAccess may inspect the Customer Content or investigate any alleged violation of this Agreement,
WebAccess policies or any third-party complaints. WebAccess 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 WebAccess 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, WebAccess 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
WebAccess Systems. In the event WebAccess takes corrective action, WebAccess shall not refund any fees
paid in advance of such corrective action. Without limiting the foregoing, it is WebAccess policy to
terminate its services for repeated violations of WebAccess Acceptable Use Policy. The Customer agrees
that WebAccess is not liable for any defamatory or illegal content or any content contrary to WebAccess
Acceptable Use Policy. The Customer warrants to indemnify WebAccess 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 WebAccess 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.
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3.2.3
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To comply with applicable laws and lawful governmental requests, to protect WebAccess Systems and
WebAccess Customers, or to ensure the integrity and operation of WebAccess business and systems,
WebAccess 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 WebAccess Systems.
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4
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FEES AND PAYMENT TERMS
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4.1
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The Customer agrees to pay to WebAccess the current set up and service fees in accordance with the Service
Options and any and all costs and expenses incurred by WebAccess in connection with the Services provided to
the Customer by WebAccess 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 annual fee for the Services at
the rates and charges set out on the WebAccess Web site at http://www.webaccess.com.au/.
Henceforth, the Customer will be sent a renewal notice annually 7 days prior to the anniversary of the order.
If the renewal fee is not paid by the anniversary of the order, the Services will be disabled and the
Customers web content and MX records disabled without notice. Disabled Services will be deleted if the
Customers account is not returned to a $0.00 balance within 30 days.
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4.2
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All fees shall be payable immediately on issue of any invoice for a new service, or new order placed by the
Customer for renewal of an existing service. For recurring services, fees shall be payable within 7 days of
issue of any invoice. All fees, including recurring fees, will be charged to the Customer's credit card of
record unless other arrangements have been specifically approved by WebAccess at WebAccess sole discretion.
For billing purposes, fractions of units shall be rounded up. All charges are considered valid unless disputed
within 30 days of the invoice date by submitting a billing enquiry support ticket on the WebAccess web site.
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 WebAccess 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 WebAccess suspension of its performance of the Services (including all
e-mail and the deletion of the Customer Content) and, in WebAccess 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 WebAccess 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.
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5
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TERM OF SERVICE
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5.1
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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 notice via a cancellation
support ticket submitted on the WebAccess web site; provided that, WebAccess 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, WebAccess will not refund, and the Customer
is not eligible for, any remaining portion of any fees that already has been charged.
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5.2
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Should this Agreement be terminated for any reason, WebAccess 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 WebAccess 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.
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6
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RESERVATION OF RIGHTS
WebAccess 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 WebAccess or its suppliers pursuant to
this Agreement, and any know-how, methodologies, equipment, or processes used by WebAccess 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 WebAccess does not guarantee retention
of the Customer Content after termination.
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7
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WARRANTIES AND REPRESENTATIONS
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7.1
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The Customer represents, warrants and covenants to WebAccess 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).
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7.2
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WebAccess exercises no control over, and accepts no responsibility for, third-party content of the information
passing through WebAccess System, network hubs and points of presence, or the Internet. The Customer
acknowledges that WebAccess systems (including any software and any other items used or provided by WebAccess
in connection with any services hereunder) are provided as represented at the execution of this Agreement.
WebAccess 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 WebAccess 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. WebAccess makes no
representations or warranties whatsoever that the services and WebAccess systems will be uninterrupted, always
accessible, free of harmful components, accurate or error-free.
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8
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LIMITATION OF LIABILITY
WebAccess shall have no liability for any consequential, exemplary, special, incidental, or punitive damages
even if WebAccess has been advised of the possibility of such damages. In no event shall WebAccess 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 WebAccess to the Customer for any reason and upon any cause of
action shall be limited to the amount actually paid to WebAccess 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 WebAccess 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. WebAccess 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 WebAccess 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 WebAccess, WebAccess 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
WebAccess 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.
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9
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INDEMNIFICATION
The Customer will indemnify, hold harmless, and defend WebAccess and all employees, officers, directors and
agents of WebAccess 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 WebAccess 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.
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10
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ARCHIVING OF DATA
WebAccess will 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, WebAccess will restore from the
last known good archive. In the event of corruption of all of WebAccess 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.
WebAccess will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data
recovered from WebAccess backups.
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11
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MISCELLANEOUS
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11.1
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This Agreement is governed by the law applicable in the State of Queensland in Australia. The Customer and
WebAccess agree to irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of
the State of Queensland.
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11.2
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The Customer agrees that, unless other instructions are posted on WebAccess 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 WebAccess and the contact information for WebAccess posted on WebAccess 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 update its
contact details via the Client Control Panel on the WebAccess web site as soon as possible. If WebAccess 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 WebAccess 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 WebAccess that the
email was not delivered to its email address. If WebAccess receives an automated email non-delivery notification
indicating that the Customer has not received the email that WebAccess has sent the Customer regarding the
Services, WebAccess 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 WebAccess will be
able to contact the Customer.
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11.3
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Words or expressions used in this clause 11.3 which are defined in the A 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 WebAccess 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):
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(a)
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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
WebAccess, an amount equal to the GST payable by the WebAccess on that supply; and
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(b)
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the amount by which the GST exclusive consideration is increased must be paid to WebAccess 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.
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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.
WebAccess, 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 WebAccess.
WebAccess will provide a tax invoice.
If the Customer objects to the amount of any refund or adjustment determined by WebAccess under this clause,
the Customer and WebAccess will negotiate in good faith in an attempt to agree on the amount of the refund
or adjustment. If the Customer and WebAccess cannot agree on the amount of the refund or adjustment, then
the refund or adjustment must be determined by a person:
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(a)
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who has at least 10 years experience as a lawyer;
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(b)
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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 Queensland Law Society or by the President's nominee;
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(c)
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who the Customer and WebAccess must instruct to give a written decision with reasons;
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(d)
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who acts as an expert and not as an arbitrator;
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(e)
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whose decision except in the case of obvious error is final and binding; and
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(f)
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whose cost the Customer and WebAccess must bear equally.
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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 WebAccess 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.
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11.4
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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:
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(a)
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warrant that the Customer have an ABN and have provided the applicable registration number to
WebAccess; and
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(b)
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must:
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(i)
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continue to have an ABN during the term of this Agreement;
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(ii)
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quote its ABN to WebAccess;
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(iii)
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advise WebAccess if its ABN changes or is cancelled; and
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(iv)
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indemnify WebAccess for any loss or damage suffered by WebAccess or any tax, charge, fine,
penalty or other impost which WebAccess incurs or becomes liable to pay, as a result of its
breach of any of the warranties contained in this clause.
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11.5
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Increased costs
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(a)
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To the extent that any supply by WebAccess under this Agreement is input taxed (input tax supply),
WebAccess is entitled to increase:
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(i)
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any amount expressed as payable; and
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(ii)
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anything else to be provided,
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by the Customer for that input tax supply otherwise under or in connection with this agreement
(consideration for the input tax supply) by:
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(iii)
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such amount as WebAccess determines in its discretion is reasonably necessary for WebAccess
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 WebAccess and used by it
wholly or partly in making the input tax supply, to which WebAccess would have been entitled
had the input tax supply been a taxable supply by WebAccess; or
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(iv)
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such lesser amount as WebAccess determines.
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(b)
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WebAccess may make a determination under clause 11.5(a)(iii) above or 11.5(a)(iv) above by notice in
writing to the Customer (WebAccess determination) and each WebAccess determination will be
conclusive evidence of the making of the determination. The amount specified in any WebAccess
determination must be paid by the Customer immediately on receipt of the WebAccess determination
without objection and without any set off or deduction of any other amount payable under this
Agreement.
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11.6
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Waiver of any provision of or right under this Agreement:
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(a)
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must be in writing signed by the party entitled to the benefit of that provision or right; and
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(b)
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is effective only to the extent set out in any written waiver.
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11.7
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In this agreement, except where the context otherwise requires:
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(a)
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the singular includes the plural and vice versa, and a gender includes other genders;
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(b)
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another grammatical form of a defined word or expression has a corresponding meaning;
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(c)
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a reference to a document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time;
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(d)
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a reference to $ is to Australian currency;
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(e)
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a reference to time is to Australian eastern standard time;
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(f)
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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;
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(g)
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a reference to a person includes a natural person, partnership, body corporate, association,
governmental or local authority or agency or other entity;
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(h)
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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;
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(i)
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a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
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(j)
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the meaning of general words is not limited by specific examples introduced by including, for
example or similar expressions;
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(k)
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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;
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(l)
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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;
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(m)
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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
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(n)
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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.
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If the Customer has any questions relating to this Agreement, it may submit a support ticket within the
Client Control Interface.
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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 WebAccess. The Policy forms part of the Agreement.
This Policy is not exhaustive and WebAccess reserves the right to modify it at any time, effective upon posting of
the modified version at http://www.webaccess.com.au/legal/policies.html
or such other location designated by WebAccess. By using WebAccess 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 WebAccess
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.
GENERAL
WebAccess 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 WebAccess
(collectively, "WebAccess Systems"). Generally, WebAccess does not actively monitor, censor, or directly
control any information that is stored on or transmitted over WebAccess Systems. WebAccess 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 WebAccess Services and your Web site.
NO ILLEGAL OR HARMFUL USES
WebAccess 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,
is strictly prohibited. The following non-exhaustive list describes the kinds of illegal or harmful conduct that
are prohibited. WebAccess 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 WebAccess 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 WebAccess
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.
Privacy. Collecting, using and disclosing any personally identifiable user information in violation of any
applicable law and/or stated privacy policy.
MAINTENANCE OF SECURITY AND INTEGRITY
Violations of system or network security are prohibited, and may result in criminal and civil liability. WebAccess
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 WebAccess 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.
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 WebAccess 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.
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 WebAccess.
The Customer shall at all times adhere to all applicable laws, rules, and regulations and to WebAccess then current
Acceptable Use Policy (or such other location as WebAccess may specify). In particular the Customer may not utilise
the Services:
|
(a)
|
in connection with any tortious or actionable activity;
|
|
(b)
|
to publish or disseminate information that:
|
(i)
|
constitutes slander, libel or defamation;
|
|
(ii)
|
publicises the personal information or likeness of a person without that person's consent; or
|
|
(iii)
|
otherwise violates the privacy rights of any person; or
|
|
|
(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)
|
in connection with any disruptive or abusive activity;
|
|
(e)
|
to cause denial of service attacks against WebAccess or other network hosts or Internet users or to
otherwise degrade or impair the operation of WebAccess servers and facilities or the servers and
facilities other network hosts or Internet users;
|
|
(f)
|
to post messages or software programs that consume excessive CPU time or storage space;
|
|
(g)
|
to offer mail services, mail forwarding capabilities, POP accounts or autoresponders other than for the
Customer's own account;
|
|
(h)
|
to subvert, or assist others in subverting, the security or integrity of any WebAccess system, facility or
equipment;
|
|
(i)
|
to gain unauthorised access to the computer networks of WebAccess or any other person;
|
|
(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)
|
to:
|
(i)
|
forge the signature or other identifying mark or code of any other person;
|
|
(ii)
|
impersonate or assume the identity of any other person; or
|
|
(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)
|
to conduct port scans or other invasive procedures against any server (except any server for which the
Customer is an authorised system administrator);
|
|
(m)
|
to distribute, advertise or promote software or services that have the primary purpose of encouraging or
facilitating unsolicited commercial email or spam;
|
|
(n)
|
in any manner that might subject WebAccess to unfavourable regulatory action, subject WebAccess to any
liability for any reason, or adversely affect WebAccess public image, reputation or goodwill, including,
without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or
otherwise objectionable materials as determined by WebAccess in its sole discretion; or
|
|
(o)
|
in any other manner to interrupt or interfere with the Internet usage of other persons.
|
ENFORCEMENT BY WEBACCESS
WebAccess reserves the right, but does not assume the obligation, to investigate any violation of this Policy or
misuse of WebAccess Systems. As described in the Hosting Agreement, WebAccess 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,
WebAccess 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. WebAccess 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. WebAccess reserves all rights to identify the Customer by its IP address to third parties
within the scope of the Privacy Act 1988 (Cth).
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