Hosting Services
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Australian Hosting Agreement
Hosting Services Agreement

This is WEBPC(tm)'s Hosting Services Agreement. This document details the terms that hosting services are provided. If you have any questions, please contact us.

This Services Agreement (the "Agreement") between Web & PC Services Pty Ltd t/as WEBPC ("WEBPC(tm)") and the customer ("Customer") is made effective as of the date the services are first provided by WEBPC(tm) or indicated on the initial Service Order Form ("Order Form") submitted by Customer and accepted by WEBPC(tm).

TOPICS
  1. Overview
  2. Delivery of Services
  3. Term
  4. Fees and Payment Terms
  5. Intellectual Property Ownership
  6. Limited Warranties
  7. Customer Obligations
  8. Limitations of Liability
  9. Indemnification
  10. Termination
  11. Definitions
  12. Use of Customer's Name for Marketing and Promotion
  13. Miscellaneous Provisions
TOP 1. Overview.
This Agreement states the terms and conditions by which WEBPC(tm) will deliver and Customer will receive any or all of the services provided by WEBPC(tm), including bandwidth, managed services, professional/support services and content delivery. Each Order Form (with exhibits attached) submitted and accepted and executed by both parties is hereby incorporated by reference herein. This Agreement is intended to cover any and all Hosting Services ordered by Customer and provided by WEBPC(tm). Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
TOP 2. Delivery of Services.

By submitting an Order Forms(s), Customer agrees to take and pay for

(i) the Service(s) during the Initial Term and for any Renewal Term, and

(ii) certain limited services and equipment needed by Customer on a "one-off" or emergency basis ("Supplemental Services") where such services are not included within the scope of the Services as described in the Order Forms(s). Customer agrees to pay WEBPC(tm) the fees charged by WEBPC(tm) for Supplemental Services, and hereby authorizes WEBPC(tm) to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with WEBPC(tm)'s current policies and prices.

TOP 3. Term.

The term ("Initial Term") for each Service will commence on the Service Commencement Date.

Upon expiration of the Initial Term, the term shall be extended either automatically for a period of thirty (30) days or for a term stated in an Invoice or other Notice issued by WEBPC(tm) ("Renewal Term"), unless and until either party gives the other no less than thirty (30) days' written notice of a termination. The termination of any Service will not affect Customer's obligations to pay for other Service(s).

TOP 4. Fees and Payment Terms.

Customer will pay all fees due according to the prices and terms listed in the Order Form(s) and all other fees incurred by Customer related to Supplemental Services, Professional Services, reinstatement of service fees and fees for switching or upgrading services, all in accordance with then current WEBPC prices and policies.

WEBPC(tm) will issue an invoice, detailing the fees paid/payable. Payment for all amounts shown on the Invoice will be due by the payment date shown on the invoice.

Non-recurring (setup) charges together with ongoing reccuring regular charges will be billed in advance of the provision of Services. All other charges for Services received and expenses incurred for Supplemental or Professional Services during a month (e.g., bandwidth usage fees) will be billed immediately or at the end of the month or Term in which the Services were provided.

Notwithstanding anything to the contrary in this Agreement, WEBPC(tm) expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.

Any payment not received within the payment terms stated on any invoice (a Payment Default) will accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer also shall pay to WEBPC(tm) all expenses incurred by WEBPC(tm) in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by WEBPC(tm).

Customer will be responsible for and will pay in full, except for taxes on WEBPC(tm) net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.

TOP 5. Intellectual Property Ownership.
This Agreement does not transfer from WEBPC(tm) to Customer any WEBPC(tm) Technology, and all right, title and interest in and to WEBPC(tm) Technology will remain solely with WEBPC(tm). This Agreement does not transfer from Customer to WEBPC(tm) any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with Customer. WEBPC(tm) and Customer each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
TOP 6. Limited Warranties.

Any guarantees in the Order Form(s) are null and void if Customer fails to follow WEBPC(tm)'s Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.

WEBPC(tm) DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CUSTOMER'S OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN THE ORDER FORM(S), WEBPC(tm) DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WEBPC(tm) DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

WEBPC(tm) DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM WEBPC(tm)'s NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). WEBPC(tm) CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY WEBPC(tm) DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

TOP 7. Customer Obligations.

Customer represents and warrants that:

(i) Customer is at least eighteen (18) years of age;

(ii) Customer possesses the legal right and ability to enter into this Agreement, and

(iii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other WEBPC(tm) customers' use of WEBPC(tm) services. Customer assumes all risks related to processing of transactions related to electronic commerce.

In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, WEBPC(tm) will have the right, in its sole discretion, to suspend or terminate immediately any Services.

Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by WEBPC(tm) from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. WEBPC(tm) may change the Rules and Regulations upon fifteen (15) days' notice to Customer, which notice may be provided by posting such new Rules and Regulations at the WEBPC(tm) Site http://www.webpc.biz/site/aup.asp. Customer may request a current copy of the Rules and Regulations by sending or faxing a request to WEBPC(tm). Customer agrees that it has received, read and understands the current version of the Rules and Regulations.

Customer shall not:

(i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or

(ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

TOP 8. Limitations of Liability.

WEBPC(tm) SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND WEBPC(tm) SHALL HAVE NO LIABILITY THEREFOR. EXCEPT TO THE EXTENT OF WEBPC(tm)'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER WEBPC(tm) NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO WEBPC(tm)'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF WEBPC(tm)'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE.

EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.

Notwithstanding anything else to the contrary contained in this Agreement, WEBPC(tm)'s maximum aggregate liability to Customer for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Customer to WEBPC(tm) for the prior three (3) months.

WEBPC(tm) may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships WEBPC(tm) has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by WEBPC(tm) and not by the Third Party Vendor. Neither WEBPC(tm) nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM WEBPC(tm) OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WEBPC(tm) NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND WEBPC(tm) WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.

TOP 9. Indemnification.

Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of:

(i) any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributorily caused by the other party) and

(ii) any violation of or failure to comply with the Rules and Regulations. Customer further agrees to indemnify WEBPC(tm) and its affiliates against any Losses which arise out of, or relate to any content provided by Customer or the customers/clients of Customer, and Customer will reimburse WEBPC(tm) and its affiliates for all legal expenses, including reasonable attorneys' fees, incurred by WEBPC(tm) and its affiliates in connection with any such Losses.

TOP 10. Termination.

This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days' prior written notice of termination.

In addition to any other rights it may have under this Agreement or applicable law, WEBPC(tm) may immediately terminate this Agreement or suspend service, effective without notice, in the event of

(i) a Payment Default, or

(ii) Customer's breach or failure to comply with any other obligation of Customer under this Agreement including, but not limited to, its failure to comply with any of the terms of the Rules and Regulations or other policies of WEBPC(tm).

If this Agreement is terminated by WEBPC(tm) for a reason detailed in (i) or (ii) in the preceding paragraph all remaining monthly recurring and other charges specified on the applicable Order Form(s) for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, WEBPC(tm) reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules and Regulations or which WEBPC(tm) believes in its sole discretion to be illegal or potentially harmful to others or may expose WEBPC(tm) to harm or liability.

Customer may terminate this Agreement if WEBPC(tm) breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated due to this reason all payment obligations of Customer under this agreement up to the date of termination immediately fall due.

Customer can also terminate this agreement for no reason by providing WEBPC(tm) 30 days written notice.

If this Agreement is terminated by Customer, any and all payment obligations of Customer under this Agreement for Service(s) provided through the expiry date of the current term will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for.

Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.

The following provisions will survive any expiration or termination of the Agreement: Sections 4. Fees and Payment Terms, 5. Intellectual Property Ownership, 6. Limited Warranties, 8. Limitations of Liability, 9. Indemnification, 10. Termination, 11. Definitions and 11. Definitions.

Upon expiration, cancellation or termination of this Agreement, Customer shall relinquish any Internet protocol ("IP") numbers, addresses or address blocks assigned to Customer by WEBPC(tm) or its network services supplier (but not the URL or top level domain connected therewith, unless that domain is registered to WEBPC(tm) its affiliates or suppliers). WEBPC(tm) reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.

TOP 11. Definitions.

"Customer Technology" means Customer's proprietary technology, including Customer's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.

"Initial Term" means the minimum term for which WEBPC(tm) will provide the Service(s) to Customer, as indicated on the Order Form(s)

"Professional Services" means any non-standard professional, consulting or support service provided by WEBPC(tm) to Customer

"WEBPC(tm) Technology" means WEBPC(tm)'s proprietary technology, including WEBPC(tm) Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by WEBPC(tm) or licensed to WEBPC(tm) from a third party) and also including any derivatives, improvements, enhancements or extensions of WEBPC(tm) Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art.

"Renewal Term" means any service term following the Initial Term, as specified in Section 3. Term

"Rules and Regulations" means the WEBPC(tm) general rules and regulations governing Customer's use of Services, including, but not limited to, online conduct and WEBPC(tm)'s Acceptable Use Policy, which can be found at www.webpc.biz/custom/aup.asp.

"Service(s)" means the specific service(s) provided by WEBPC(tm) pursuant to this Agreement.

"Service Commencement Date" means the date WEBPC(tm) will begin providing the Service(s) to Customer as indicated on the Order Form(s).

TOP 12. Use of Customer's Name for Marketing and Promotion.
WEBPC(tm) agrees that during the term of this agreement it will not publicly refer to Customer, orally and in writing, as a Customer of WEBPC(tm) in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages. Unless agreed to by Customer in writing.
TOP 13. Miscellaneous Provisions.

WEBPC(tm) shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer resulting, directly or indirectly, from any unforeseen or force majeure event. WEBPC(tm) and Customer agree that, except as otherwise expressly provided in this Agreement, the Order Form(s)/Invoices or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW SOUTH WALES, AUSTRALIA (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN NEW SOUTH WALES, AUSTRALIA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of WEBPC(tm), and any attempted assignment or delegation without such consent will be void. WEBPC(tm) may assign this Agreement in whole or part. WEBPC(tm) also may delegate the performance of certain Services to third parties, including WEBPC(tm)'s wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. WEBPC(tm) and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between WEBPC(tm) and Customer. Neither WEBPC(tm) nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of WEBPC(tm) and Customer in accordance with this Section 13.

Authorized representatives of Customer and WEBPC(tm) have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date the services are first provided by WEBPC(tm) or indicated on the initial Service Order Form ("Order Form") submitted by Customer and accepted by WEBPC(tm).

Updated: 1 June 2008