The following terms and conditions (these "Terms") govern the provision by Hostaccino ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the Order Form, any relevant invoices and the Service Level Agreement (collectively the "Service Descriptions”) and defined in any of the Company's product support listing, to the customer ("Customer") identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this "Agreement."
1. Obligations of Parties. Company shall install Services and Products upon order placement and maintain Services and Products designated in the Service Descriptions. Customer shall comply with all the terms of this agreement, including, but not limited to, the Acceptable Usage Policy attached hereto as Attachment A (the "Use Policy"), as the Use Policy may be modified from time to time.
2. Payment. Charges for the Services and Products (including the charges described in the balance of this section, the "Charges") are set forth on the Service Descriptions. Charges shall commence to accrue on the date that Company provides access codes to Customer (“Operational Date”). Charges shall be invoiced to Customer in advance at the beginning of the billing cycle (1-12 months). Any additional charges, including, but not limited to, any early cancellation charges, accrued interest, late fees and any usage-based charge, including, but not limited to, charges for network access to the Internet, shall be invoiced in arrears and shall appear on the invoices for Services and Products or separate invoices. In all cases, payments for Charges are due upon receipt by Customer of the invoices for such Charges. Customer shall also pay to Company all expenses incurred by Company in exercising any of its rights under this Agreement or applicable law with respect to the collection of a Payment Default, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by Company. Company reserves the right to invoice Customer between billing cycles for excess usage of services.
3. Taxes. If Customer resides in The Commonwealth of Australia, Company shall charge 10% Goods and Services Tax for Services and Products. Service Description shall indicate whether Charges include such tax. If Customer resides outside The Commonwealth of Australia, Goods and Service Tax shall not be charged.
4. Maintenance. Company designates time periods ("Scheduled Maintenance Windows") during which it may limit or suspend the availability of the hardware and/or software involved in providing its Services and Products (an "Outage") to perform necessary maintenance or upgrades. If planned maintenance has the possibility of making the services utilised by Customer inaccessible to the Internet during a Scheduled Maintenance Window, Company will provide not less than twenty-four (24) hours prior electronic mail or other notice to Customer of the Scheduled Maintenance Window during which the Outage is planned. In addition, Company reserves the right to perform any required maintenance work outside of the Scheduled Maintenance Window with prior notice to Customer. Company will provide not less than twenty four (24) hours notice for work performed outside of the normal scheduled maintenance window. Company also reserves the right to perform emergency maintenance at any given time.
5. Illegal Activity. Services and Products must be used for lawful purposes
and in a lawful manner only. Lawful purposes are defined as those which are
lawful under the Company Governing Law. Customer must not generate unsolicited
commercial messaging (SPAM). For the purposes of this Agreement the term “SPAM” includes:
i. Unwelcome email;
ii. Newsgroup cross-postings;
iii. Windows that spawn new windows;
iv. Windows which resist closure.
Company has the right, but not the obligation, to monitor any activity and content associated with Services and Products. Company may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site. The Company reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
Company reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect the Company’s systems, Suppliers, and Customers, or to ensure the integrity and operation of the Company’s business and systems, the Company may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
6. Privacy. Unless otherwise authorised by Customer in writing, Company agrees not to use or disclose personal information about Customer unless required by law or other Company obligations.
7. Term and Termination. Unless stated otherwise in the Service Descriptions, the initial term of this Agreement shall be one (1) month. The initial term of this Agreement shall commence on the Operational Date and upon expiration shall automatically renew for successive monthly terms at the Charges in effect at the commencement of such terms or until written notice of non-renewal by either party is delivered to the other party at least seven (7) days prior to the end of the then current term/billing cycle. Company may, at its option, terminate this Agreement, upon (i) a Payment Default, or (ii) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency. Payment default shall be defined as (i) failure to submit current invoice amounts upon notice by Hostaccino via e-mail, postal mail, fax or telephone and (ii) proof of receipt of payment is not received by Hostaccino via electronic transfer, postal services, or personal presentation of accrued amounts owed. Customer retains the right to cure the amount in default within (thirty) 30 days of receipt of actual notice, not to exceed 30 days after initial due date. Any such termination thereafter may be effected without prior notice to Customer. Customer may terminate this Agreement with respect to all, and not less than all, of the Services and Products in the event of (a) a material breach by Company of its obligations under this Agreement which breach is not cured within ten (10) business days after written notice thereof is received by Company, or (b) otherwise in the first thirty (30) days of the initial term hereof (collectively, a "Permissible Termination"). In the event of a Permissible Termination, Customer shall pay (i) installation and setup Charges, (ii) domain registration Charges. If Customer terminates this Agreement other than in a Permissible Termination, Customer shall pay to Company an amount equal to all unpaid Charges for the remainder of the then current term of this Agreement. Upon termination of this Agreement, Company and Customer shall have no obligations to each other except as provided in this Agreement. Upon termination of this Agreement, Customer shall pay all amounts due and owing to Company. Any data of Customer remaining on Company infrastructure will be removed within 48 hours of termination of services. Company has no responsibility for lost data due to removal upon termination. The rights and obligations of both parties, which by their nature would continue beyond the termination of this Agreement (including, without limitation, those relating to confidentiality, payment of Charges, limitations of liability and indemnification), shall survive such termination.
8. Indemnification. Customer agrees to indemnify and hold harmless Company and the employees and agents of Company (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Services and Products, and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
9. Limitation on Company Liability. Company shall not be deemed to be in default of any provision of this Agreement or be liable for any failure of performance of the Services and Products to Customer resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against Company for any damages whatsoever to Customer arising out of or related to this Agreement shall be the refund of the fees paid by Customer to Company with respect to the then current term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS COMPANY PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE NO LIABILITY THEREFORE.
10. Notices. Unless otherwise specified herein, any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, registered or certified mail, to the address or facsimile number of Customer as set forth in the Service Descriptions or Company as set forth below. Such notices or other communications shall be deemed received (i) on the date delivered, if delivered personally, (ii) on the date that return confirmation is received, if sent by facsimile, (iii) on the business day (or, if international, on the second business day) after being sent by an internationally recognized overnight air courier or (iv) five days after being sent, if sent by first class registered mail, return receipt requested.
Hostaccino, 6 Pitt St, Hunters Hill, NSW, Australia 2110
11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales and of the National laws of The Commonwealth of Australia, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
12. Miscellaneous. Failure by either Company or Customer to enforce any of
the provisions of this Agreement or any rights with respect hereto or the failure
to exercise any option provided hereunder shall in no way be considered to
be waiver of such provisions, rights or options, or to in any way affect the
validity of this Agreement. If one or more of the provisions contained in this
Agreement are found to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall
not be affected. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.