Hosting Terms & Conditions
These are the standard terms and conditions of supply of the WWWART Design Services web hosting and certain other services offered from time to time on the WWWART website.
Please read these terms and conditions carefully. It is a condition of your use of the Services that you ("Client" or "you") comply with these terms and conditions.
1. Terms and Amendment Procedure
1.1 You agree that WWWART or its third party service provider ("Supplier") will supply the Services to you on the terms set out in this agreement.
1.2 This agreement commences on the date listed in the Web Host Mission Control panel when your order for Services is accepted by WWWART.
1.3 We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by general notice on our website. Changes other than price changes will become effective upon publication of the notice.
Where we vary the prices for Services, we will give at least 30 days notice of the change by the same means, and the new prices will apply at the end of that period.
1.4 If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.
1.5 These terms constitute the agreement in its entirety and supersede prior agreements.
2. Services
2.1 We will configure various features of your website/email service. We will provide you with Web and Email Services as per the Web Host service level you have selected.
2.2 Scheduled Maintenance - We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will post details of the scheduled maintenance to our website at least 48 hours in advance of the maintenance.
2.3 Unscheduled Maintenance - We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will post details of the event to our website after the maintenance has been completed.
2.4 Archiving of Data - We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
2.5 You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient client data recovered from our backups. You must also ensure that all client data files are accessible at the time that backup is to be carried out which will be between 4pm and 9am Australian Eastern Standard Time daily. You acknowledge that client data files which are not accessible to WWWART or its Supplier will not be backed up.
2.6 In contracting with WWWART for the Services, you acknowledge that you do not obtain any rights to the hardware and other infrastructure and facilities used by WWWART or its Supplier to deliver the Services.
2.7 You must comply with all laws regulations, standards and codes applicable to your use of the Services. You must promptly notify WWWART of any orders or directions issued by a relevant body which may impact on the delivery of Services.
2.8 You agree to grant a non-exclusive royalty-free licence to WWWART and its Supplier to use, transmit, display, adapt and reproduce the client data in order to WWWART's obligation to provide you with the Services as contemplated by this agreement.
3. Payment
3.1 You must pay for the Services in accordance with the prices published by WWWART on its website (as amended from time to time in accordance with this agreement).
3.2 You must pay all Service time charges, minimum charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option selected and in advance.
3.3 Prices published on WWWART’s website are inclusive of any government taxes or charges unless otherwise noted.
3.4 In addition you must provide and pay for:-
(a) the installation and use of telephone lines and all other equipment needed to access the Service; and
(b) all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
3.5 You must pay all amounts billed in accordance with your billing option. No credit terms are given to credit card accounts. Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. Billing period is on a monthly cycle beginning when you register. If you register after the 28th of each month, your billing date becomes the first of the next month.
3.6 You consent to WWWART or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by WWWART of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.
3.7 You may cancel the acquisition of any Service from WWWART within 3 business days of placing an order for such Service with WWWART in accordance with its ordering procedures.
4. Warranties and Liabilities
4.1 We do not warrant that:-
(a) the services provided under this agreement will be uninterrupted or error free;
(b)
the services will meet your requirements, other than as expressly set out in this agreement; or
(c)
the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of
WWWART or its Supplier.
4.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
4.3 Except as provided under clause 4.2, WWWART, its subsidiaries, officers, directors, employees, partners or Supplier will not be liable to you or any third party for:-
(a) any special, punitive, incidental, indirect or consequential damages of any kind;
(i)
loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;
(ii) the statements or actions of any employee or agent of WWWART or its Supplier;
(iii)
any unauthorised access to or alteration of your website, transmissions or data;
(iv)
any information that is sent or received or not sent or received;
(v)
any failure to store or loss of data, files or other content;
(vi)
your fraudulent, negligent or otherwise unlawful behaviour;
(vii) information, data or other material provided to WWWART or its Supplier by you or on your behalf, or the use of such information, data or other material by WWWART or its Supplier;
(viii) cost, loss or liability (including loss of profit or other consequential damage) arising from the supply or failure or delay in supplying the Service;
(ix)
the content, context or confidentiality of any communications made using the Service;
(x)
loss or damage caused by third party software applications forming part of the Service;
(xi)
any loss or damage arising out of an unauthorised attack on or other breach of security of the Services or client data; or
(xii)
any Services that are delayed or interrupted.
4.4 You warrant that:-
(a) at the time of entering into this agreement you are not relying on any representation made by WWWART or its Supplier which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
(b) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
(c) you will keep secure any passwords used to upload data to the Server, or otherwise supplied to you by WWWART or its Supplier in relation to the Services; and,
(d) you hold and will continue to hold the copyright in the client data or that you are licensed and will continue to be licensed to use the client data in the manner contemplated by this agreement, on terms permitting you to sub-licence the client data to WWWART or its Supplier in accordance with your obligations under this agreement.
4.5 You accept responsibility for all information and material you issue over any Service, and indemnify WWWART and its Supplier, and hold WWWART and its Supplier harmless against any liability in relation to such information and material. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that neither WWWART nor its Supplier vet or approve any information or material available through the Service. WWWART and its Supplier do not accept any liability for any loss, claim or damages arising from or relating to information and material made available by you through the Services, to the full extent permitted by law. You acknowledge that you make available, access and use such information and material at your own risk.
4.6 You agree to abide by the Acceptable Use Policy of WWWART’s Supplier, the Privacy Policy of WWWART and you agree that the terms of those policies form part of this agreement between you and WWWART.
4.7 You acknowledge that you are solely responsible for dealing with persons who access the client data, and will not refer complaints or inquiries in relation to such data to WWWART or its Supplier.
5. Suspension and Termination of Services
5.1 WWWART or its Supplier may from time to time without notice to you suspend the Service or disconnect or deny your access to the Service:-
(a) during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
(b) if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
(c) Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
5.2 WWWART may without notice to you remove, amend or alter your data upon being made aware of:-
(a) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights;
(b) if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999, or
(c)
an outside party or outside device disrupts or attempts to disrupt the Services.
5.3 WWWART may end its agreement with you and cease providing Services at any time on 30 days written notice to you. You may close your account and terminate any Service with WWWART on 30 days written notice to WWWWART. Where you terminate any Service with WWWART under this clause 5.3, WWWART will not refund you for any payments previously paid to WWWART in respect of the Service/s being terminated. Where the payment terms for the Service being terminated require monthly payments to be made to WWWART, you will be liable to pay WWWART for such Service up to and including the termination date for such Service. This means that you must pay the full monthly fee due for the last month in which the Services were provided to you by WWWART or its Supplier.
5.4 Where WWWART supplies a Service to you through a Supplier, WWWART may terminate and replace such Supplier at any time without notice to you. WWWART will, however, endeavour to replace such Supplier:
(a) with no or minimal disruption to the supply of the Services, and
(b) on substantially the same terms as are set out in this agreement.
5.5 Where WWWART is unable to comply with clause 5.4(b), you may close your account with WWWART within 30 days of being notified of the new terms on which WWWART intends to supply the relevant Service/s to you. Where you close your account under this clause 5.5 WWWART will refund you any fees previously paid by you for Service/s not received from WWWART as a result of the closure of the account on a pro rata basis.
5.6 If your account is closed under this agreement:
(a) you must pay all outstanding charges to WWWART immediately,
(b) any licence issued to or by you in relation to the Services will cease from the date of termination, and
(c) WWWART or its Supplier may delete all client data from any storage media.
6. Miscellaneous
6.1 You grant to WWWART and its Supplier a license to use and reproduce all client data in order to fulfil WWWART’s obligations under this agreement. In this agreement "client data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the client's websites or emails.
6.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
6.3 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.
6.4 You may not resell Services or assign your rights and obligations under this agreement without the prior written consent of WWWART.
