j2 Australia Hosting Pty Ltd (ABN 24 601 377 904), trading as Ausweb ("Ausweb")
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES ("STANDARD TERMS")
- APPLICATION OF THESE STANDARD TERMS
- A person or company (Customer) that places an order with Ausweb (Order) for the provision of services (Ausweb Services), subject to Ausweb’s acceptance of the Order, enters into a binding legal agreement with Ausweb (the User Agreement) which consists of:
- the Order;
- these Standard Terms and Conditions of Service ; and
- the Service Level Agreement, which can be viewed here. The Service Level Agreement details the terms and conditions of requesting support from Ausweb, Ausweb’s Service Level Commitment, the process for requesting Service Level Credits, and the terms and conditions relating to Ausweb System Maintenance.
- By placing the Order, the Customer agrees to be bound by the User Agreement and Ausweb will create the Customer’s account for the Ausweb Services (Customer Account).
- In the User Agreement, unless the context requires otherwise:
- The singular includes the plural and vice versa.
- A reference to any gender includes all other genders.
- A reference to a statute means that statute as in force from time to time, and to any statute passed in substitution for that statute.
- The word includes means includes but is not limited to.
- Where one part of speech of a word is defined, other parts of speech of that word have corresponding meanings.
- A reference to A$, $A, dollar, or $ is to Australian currency.
- If a day on or by which an obligation must be performed or an event must occur is not a business day in the place where it is to be performed, the obligation must be performed or the event must occur on or by the next business day.
- Headings are for ease of use and reference only, and do not affect interpretation.
- In Writing includes emails.
PROVISION OF THE SERVICES
- Ausweb Services are intended for use by commercial entities (including non-profit and charitable entities, government agencies and departments, schools, and similar organisations). Any individual placing an order accepts this limitation, and further accepts that any Consumer Protection legislation which operates in any jurisdiction does not apply to the User Agreement, to the degree permitted by law.
- Ausweb Services are provided only to individual Customers who are 18 years of age and older.
- Ausweb will commence supplying the Ausweb Services to the Customer within seven days of the date of the Customer’s first payment for the Charges unless otherwise agreed in writing with the Customer.
- Ausweb will continue to provide the Ausweb Services unless suspended in accordance with Section 8 or until the User Agreement is terminated in accordance with Section 10.
- Each Ausweb Service has a specification and description of suitable use (Product Description). It is the responsibility of the Customer to ensure that the particular Ausweb Service selected is appropriate for their needs.
- As part of the sign-up process, Ausweb will provide the Customer with the log-in information necessary for the Customer to access and use the Ausweb Services.
- The initial subscription to an Ausweb Service requires the Customer to provide the details of a valid and accepted credit card for payment.
- The credit card data provided by the Customer to Ausweb will be used to establish a payment account with a third-party payment processor. The credit card details will be held by Ausweb to facilitate subsequent payments.
- The Customer is responsible for ensuring that the credit card details provided to Ausweb are current and correct.
- Charges for the Ausweb Services (Charges) will be calculated according to the billing option and pricing structure for the particular Ausweb Services selected by the Customer and charged in advance to the Customer’s credit card.
- Some Charges cannot be determined in advance (e.g., internet traffic over-usage). Charges for such Ausweb Services not prepaid by the Customer will be invoiced and charged monthly.
- All Charges are exclusive of taxes, duties and government charges, other than income tax, imposed or levied in Australia or overseas in relation to the supply of the Ausweb Services (Taxes). The Goods and Services Tax (GST) and other Taxes imposed on Ausweb shall be added to the Charges where applicable, and shall be paid in accordance with Section 5.
- The Customer is liable for all Charges for Ausweb Services accessed through the Customer’s identification or log-in information whether authorised by the Customer or not, other than unauthorised access resulting from the negligence or wrongful conduct of Ausweb.
- Charges may be modified in accordance with Section 12.
- Ausweb provides a pre-paid service. Therefore, the Customer must pay any Charges in advance by the due date specified to the Customer by Ausweb to receive the Ausweb Services.
- Subscription renewal will be automatically charged one day prior to the invoice due date
- Apart from any 30-day money-back guarantee provided for new purchases described on the Ausweb website, Ausweb is not required in any circumstances to refund any prepaid charges unless the Customer’s account is terminated by Ausweb in accordance with Section 10.
- All Customer Accounts not paid by the date of the invoice (Overdue) will incur interest at the rate prescribed under the Penalty Interest Rate Act (Vic.).
- All Customer Accounts that are Overdue will automatically incur a late fee charged at 5% of the invoice total
- Failure to remit payment for 7 consecutive calendar days, including the invoice due date, shall result in a suspension of public access to Customer services.
- Failure to remit payment for services within 14 consecutive calendar days, including the invoice due date, shall result in termination of access to the service network and all services shall be reclaimed. All Customer data remaining after non-payment will be destroyed for security and privacy reasons.
- Ausweb may refer Customer Accounts more than 30 days in arrears to a debt collection agency, without notice to the Customer.
- The Customer must pay Ausweb on demand any expenses incurred by Ausweb as a result of the Customer’s failure to pay the Charges by the due date, including debt collection fees and Ausweb’s legal costs on a full indemnity basis, regardless of whether Ausweb has commenced legal proceedings to recover the amount due.
- If the Customer has a bona fide dispute regarding the Charges payable on the Customer’s Account (Dispute), and has notified Ausweb in writing via the client area ticketing system of the Dispute and the reasons for it, the Customer may withhold the disputed amount of the Charges until the Dispute is resolved, but must not withhold any other part of the Charges.
- The Customer must pay Ausweb the undisputed amount of the Charges immediately and the disputed amount of the Charges within 60 days of the due date for payment unless the Dispute has been resolved or referred by a party to a court, tribunal, or other body with authority to resolve it.
USE OF THE SERVICES
- The Customer is responsible, at their own expense, for the provision of all equipment including computer hardware and telecommunication connections, needed to use and access the Ausweb Services.
- The Customer must comply with:
- all laws and all reasonable directions from Ausweb in relation to the use of the Ausweb Services; and
- any other reasonable policies Ausweb may notify to the Customer from time to time in connection with the provision or use of, or access to the Ausweb Services.
If the Ausweb Services include hosting services which incorporate material created by third parties, the Customer must obtain, at its own expense, all necessary authorisations for Ausweb to use or reproduce the material to the extent necessary to provide the Ausweb Services. The Customer must ensure any person who accesses the Ausweb Services does not use, or attempt to use, the Ausweb Services:
- to infringe the intellectual property rights of any person, including use, sale, or transmission of software or other material which infringes copyright;
- to publish, distribute, or issue any information or material which is illegal in the State of New South Wales, obscene, defamatory, threatening, or abusive, or which vilifies any group of persons;
- for any purpose or activity which is illegal, or to promote any such activity;
- in a way that is inconsistent with the Product Description, and in particular, use the Ausweb Services to perform tasks or activities proscribed in the Product Description for that Service, if any;
- to provide links to another website which contains any content which contravenes these conditions;
- to interfere with or disrupt Ausweb or its business, other Internet users or other service providers, or their computers, software or hardware, including by the propagation malicious software such as computer worms, Trojans, and viruses;
- to access without authorisation any other computer accessible via the Ausweb Services.
- with any software that enables online anonymity, misleading IP identification, provides a hidden service, or prevents Ausweb from complying with legal obligations.
The Customer shall take all reasonable steps to ensure that the Customer’s hardware, software, or network configuration (including IP addresses) are not used to cause any security breach or attack on Ausweb’s or other Customers’ hardware, software or network configurations. The Customer must not run software that is intended, or has the effect of, adversely impacting other customers, servers (physical or virtual), or platforms within the Ausweb network, or interrupting or causing data collection systems (including billing and rating systems) from correctly operating. The Customer is responsible for all access and activities undertaken through their account. Ausweb is not responsible for any damages whatsoever arising from the disclosure of the Customer’s passwords or a third-party gaining access to the Customer’s account due to insecure or weak password selection by the Customer. If the Customer has reason to believe or be concerned that their Ausweb Services or Account has been compromised, they should notify the Ausweb Online Help Desk immediately. The Customer must ensure that the Account information it provides to Ausweb is complete, accurate and up to date throughout the period that Ausweb provides the Ausweb Services to the Customer. Ausweb relies on this Customer-provided information for notifications and other communication. Ausweb will not be liable for any damages or costs arising as a consequence of the Customer’s details being out of date or otherwise incorrect due to the Customer’s inaction or providing incorrect or incomplete information to Ausweb. BACK-UPS AND REDUNDANCY
- Unless explicitly stated in the Product Description for an Ausweb Service, Ausweb does not back up or otherwise replicate a Customer’s Service or the data associated with the Ausweb Service.
- Unless explicitly stated in the Product Description for an Ausweb Service, the Ausweb Service is not provided on a redundant or high-availability basis. If a platform from which the Ausweb Service is provided fails, the Customer may permanently lose data.
- Ausweb will only perform backups of a Customer’s Ausweb Service if the Product Description explicitly states backups are included, or if there is an agreement between Ausweb and the Customer in writing for Ausweb to perform backups as part of a subscription.
- The Customer will be solely responsible to perform or to arrange any backups necessary to protect the Customer from data loss, even if backups are taken by Ausweb under section 7.3.
- If Ausweb has performed a backup for the Customer under section 7.3, the Customer may request data be restored (Restore) from the backup. To arrange a Restore, the Customer must raise a support ticket with the Ausweb Online Help Desk according to the process described in the Technical Support section of the SLA. The Customer needs to specify the data to be restored in the ticket.
- Unless otherwise specified in the Product Description, restores on Web Hosting subscriptions are charged at $45 + GST, and will provide a file with website content only.
- For subscriptions other than Web Hosting, Restores are charged at $45 + GST, and can be either file restore or full system restore.
- The charges for Restores in sections 7.6 and 7.7 may be changed by Ausweb from time to time by Ausweb posting the new charges on its website.
SUSPENSION OF SERVICES AND REMOVAL OF CUSTOMER CONTENT
- Ausweb may from time to time, without need to issue notice to the Customer, suspend an Ausweb Service or Services, or disconnect or deny the Customer access to the Ausweb Services if:
- the Customer breaches the User Agreement;
- the Customer provides Ausweb with false, incomplete or out of date information that in Ausweb’s reasonable opinion results in an operational issue;
- the Customer’s Account is overdue or in arrears;
- it is necessary to do so due to any technical failure of, or for the upgrading or scheduled, preventative or remedial maintenance of Ausweb’s systems and software;
- in Ausweb’s reasonable opinion, it is required by law to do so; or
- in Ausweb’s reasonable opinion, the Customer’s use of the Ausweb Services adversely affects Ausweb system performance or the integrity of the Ausweb network or systems.
The Customer must consult Ausweb before undertaking any actions they that do not fall inside the day to day operation of their Ausweb Service, including the running of any load or penetrating testing. Failure to do so may result in immediate suspension of the service if the actions are seen as a threat to the Ausweb network. Ausweb Services suspended under this Section will not be reinstated until the breach is remedied, if capable of being remedied, or the account and any penalty is paid in full, and a fee of $75 for the administrative costs of reinstatement is paid. Ausweb reserves the right to increase the reinstatement fee in the event that there are multiple instances of suspension caused by the Customer’s actions. Ausweb may permanently remove the Customer content (including data, code, and applications) and backups if the Customer’s Service is suspended for more than 10 business days. WARRANTIES AND LIMITATION OF LIABILITY
- Ausweb does not give any express warranties in relation to the Ausweb Services, including warranties that:
- customers will have continuous access to, or usage of, the Ausweb Services;
- data stored on Ausweb Servers will not be lost or corrupted;
- it will be possible to restore Customer Content from Ausweb’s back up media; or
- Ausweb will be able to prevent unauthorised persons obtaining access to Customer Content.
Any term, condition, guarantee, or warranty which would otherwise be implied into this User Agreement is excluded, to the degree permitted by law. If a term, condition, guarantee, or warranty is implied into this User Agreement by law, Ausweb’s liability to the Customer in relation a breach of that term, condition, guarantee, or warranty is limited, to the extent it is lawful to do so, to one or more of the following:
- the supplying of the Ausweb Services again; or
- the payment of the reasonable costs of having the Ausweb Services supplied again.
The Customer acknowledges that Ausweb does not and cannot control, supervise, or edit any information or material accessed through the Ausweb Services and that Ausweb is not responsible for any content or information accessed via the Ausweb Services. The Customer will indemnify and keep indemnified Ausweb and its directors, managers and other employees, and agents and contractors (Related Persons) should Ausweb or its Related Persons incur loss, damage, fines, costs, or expenses as a result of Ausweb being treated as the author or publisher of any content or information stored, accessed, or published by the Customer using the Ausweb Services. The Customer acknowledges that the Ausweb Services are not intended or authorised for use in circumstances where failsafe performance is required or where failures or errors in the operation of the Ausweb Services could lead to significant financial detriment, loss or damage, or to personal harm, and the Customer agrees not to use the Ausweb Services in such circumstances. The Customer will indemnify and keep indemnified Ausweb and its Related Persons from and against any loss, damage or liability resulting from the use of the Ausweb Services contrary to this clause. Ausweb will not be liable to the Customer for any remote, indirect, consequential, special or incidental loss or damage, including without limitation, loss or damages resulting from loss of profit or loss of data or loss of electronic materials resulting from the Ausweb Services. The Customer will indemnify Ausweb and its Related Persons from and against any claim made against Ausweb or any of the Related Persons by a third party as a result of the Ausweb Services provided by Ausweb to the Customer. In no event will Ausweb’s aggregate liability to the Customer for damages on any basis associated with use of Ausweb Services exceed the sum paid by the Customer to Ausweb in the month immediately preceding a claim by the Customer. TERMINATION
- Either party may terminate the User Agreement immediately by giving notice in writing to the other if the other commits a material breach of any provision of the User Agreement which:
- can be rectified, and fails to rectify the breach within thirty days of notice being given by the party alleging the breach, describing the breach and the action which must be taken to rectify it; or
- cannot be rectified.
Ausweb may at its own absolute discretion cancel the Customer’s Account and the Ausweb Services to the Customer, subject to Ausweb giving to the Customer at least twenty one days’ prior notice of termination in writing. The Customer may terminate a User Agreement by
- giving Ausweb notice of termination via the Client Area at least five business days before the end of any period for which the Customer has paid for provision of Ausweb Services (Paid-up Period), such termination to take effect at the end of that Paid-up Period
If the User Agreement is terminated by Ausweb under section 10.1 or 10.2, all outstanding Charges will become immediately payable by the Customer to Ausweb upon the giving of notice of termination. Ausweb is not required to refund any prepaid Charges, unless the User Agreement is terminated by the Customer under section 10.1. Ausweb will erase, in a timely fashion upon termination of an Ausweb Service, all data (including software, code, and backups) relating to that Service from Ausweb systems unless Ausweb and the Customer have agreed in writing the data is to be preserved for an agreed period of time. All costs associated with the storage of such data will be borne by the Customer. SUB-CONTRACTS
- Ausweb may sub-contract the whole or any part of the performance of its obligations under the User Agreement without obtaining the Customer’s consent.
VARIATION OF USER AGREEMENT
- Ausweb may modify the User Agreement, including the prices charged for Ausweb Services, at any time by posting a revised User Agreement and/or revised pricing on Ausweb’s website, and send a notification to all Customers impacted by the change to the email address Ausweb have on record. The Customer shall be deemed to have accepted such modifications to the User Agreement by continued use of the Ausweb Services after such modifications have been posted.
- This standard User Agreement may only be modified by a written agreement between Ausweb and the Customer, with the Ausweb signatory being the Ausweb General Manager, or in accordance with section 12.1. The User Agreement and any such written agreement constitute the entire agreement between Ausweb and the Customer.
- Any notice issued by Ausweb or the Customer pursuant to the User Agreement shall be in writing. Notices may be delivered by email to the email address Ausweb have on file for the Customer, or by a ticket to the billing inquiry department in the client area.
- Notice will be treated as given:
- in the case of email, on receipt by the sender of notification that the email has been received by the recipient’s email server, but if the delivery or receipt is not on a business day or is after 5:00pm on a business day in the place where it is received, the notice is taken to be received at 9:00am on the next business day.
It is the Customer’s responsibility to notify Ausweb of any changes to its contact details. GENERAL
- The User Agreement (and the validity and enforceability of the User Agreement) are governed by and to be interpreted in accordance with the law of the State of New South Wales in the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales, and the federal courts of the Commonwealth of Australia. The parties irrevocably waive any right they may have to object to those courts exercising jurisdiction on the ground that the court is not a convenient forum.
- If any provision of the User Agreement is illegal, unenforceable or void in any jurisdiction, then, with respect to that jurisdiction only:
- that provision shall be read down if possible so that it is no longer illegal, unenforceable or void in that jurisdiction; and
- if it is not possible to read down that provision, it shall be severed from the remaining provisions of the User Agreement, with respect to that jurisdiction only.