Terms & Conditions

WEB HOSTING AGREEMENT - Connectivity Australia PTY. LTD.

1. This agreement

Web hosting is to be provided by Connectivity Australia Pty Ltd.
The Client requests Connectivity Australia to host a web site, on the terms of this agreement.
Connectivity Australia may accept the Application and enter into this agreement with the Client by notice to the Client of its acceptance. Connectivity Australia will notify the Client of the date of acceptance of the Application.

2. Services to the Client

Connectivity Australia will provide the Services to the Client from the Commencement Date until expiry of the Term.
The Client must immediately notify Connectivity Australia of any change in details in the Application, including a change to the proposed Commencement Date.
Connectivity Australia will use all reasonable efforts to ensure the continuity and efficiency of the Services and to achieve acceptable service levels.
Connectivity Australia may vary the technical configuration or the components of the Web Hosting Platform at any time without notice to the Client.
If requested by the Client, Connectivity Australia will as part of the Services and as agent for the Client and at the Client's costs, arrange for the Client's domain name to be registered with the appropriate domain name registries. Connectivity Australia does not guarantee that it will be successful in its application for domain name registration.

3. Hosted Content

The Client will develop, install and maintain the Hosted Content and must either:

purchase and install all necessary Authoring Software to allow the transfer of the Hosted Content to the Web Hosting Platform; or
provide Connectivity Australia with a copy of the Hosted Content on disk or tape, for loading on to the Web Hosting Platform.

The Client must provide and maintain all necessary terminal equipment, telecommunications services and software required to access or use the Services.
The Client must follow all procedures specified by Connectivity Australia in relation to the Hosted Content.
The Client must ensure that the Hosted Content functions within any parameters specified by Connectivity Australia from time to time, including the obligations in clause 7.
The Client must, unless it obtains Connectivity Australia's consent, ensure that the Hosted Content relates solely to the Client and its business or the businesses carried on by the Client's parent company, subsidiaries, or subsidiaries of the parent company.
The Client must ensure that the Hosted Content does not relate to the business of a third party, unless the third party has consented to its use and upon agreement by Connectivity Australia.
The Client must not, unless it obtains Connectivity Australia's consent, sell, resell or provide to third parties any of the Services provided by Connectivity Australia under this agreement.

4. Price and Terms of Payment

The Client must pay Connectivity Australia the Client Charges for the Services.
Connectivity Australia will invoice the Client for the Client Charges and the Client must pay all amounts by the date specified on the invoice.
The Client Charges may not include all taxes. The Client must pay all government taxes, duties, fees and other charges (including GST) payable on:
- this agreement or the performance of this agreement; and
- any payment, receipt or other transaction arising out of this agreement.
Connectivity Australia will use its best endeavours to determine reasonably the extent (if any) to which any Client Charges may be reduced as a direct consequence of the abolition or reduction in any taxes (as part of the imposition of a GST) paid or payable by Connectivity Australia which directly relate to the supply of the Services and the Client Charges shall be reduced only to the extent of the reduction (if any) so determined by Connectivity Australia.

5. Services and Support

The Client must not use the Services in a manner which, in the opinion of Connectivity Australia, may adversely affect the efficiency, security or use by third parties of Connectivity Australia's Web Hosting or the Web Hosting Platform.
The Client must take all reasonable measures to prevent unauthorised access to the Web Hosting Platform.
Connectivity Australia may, if it considers reasonably necessary, direct the Client to take corrective action in relation to its use of the Services.

Connectivity Australia will provide the Support Services, on the Client's request directed to the Customer Support Centre.
The Customer Support Centre will determine the Support Services required by the Client and if necessary direct the Client's request to the relevant additional personnel.

On request, Connectivity Australia may recommend to the Client that it enter into a relationship with one of its Business Partners.
If the Client engages a Business Partner or any third party developer, the Client consents to details of the Client Charges and any other information required to activate the Services being disclosed to the Business Partner.

6. Intellectual Property Rights

Subject to clause 6.2, the Client retains all present and future intellectual property rights in the Hosted Content and the End User Information.
The Client grants to Connectivity Australia a license during the Term:
- to use and reproduce the Hosted Content to fulfill its obligations to the Client under this agreement, and where the Client consents, for publicity and promotional purposes, as it considers necessary;
- unless the Client otherwise directs, to use the Client's name in promotion of activities; and
- to use, reproduce and adapt the End User Information for any Connectivity Australia reporting, marketing and promotional purposes provided that such use is not Client specific.

Subject to clause 6.1, Connectivity Australia retains all present and future intellectual property rights subsisting in Connectivity Australia Material, all material relating to Connectivity Australia Web Hosting and software coding or other material stored on the Web Hosting Platform.

7. Client obligations

The Client must ensure that the Hosted Content and any programming or software code does not contain any defects, viruses or other code that is intended to or is likely to:
- cause the Hosted Content to cease being operational;
- cause any damage to or interfere with the content or information stored on the Web Hosting Platform or the Web Hosting Platform itself;
- interrupt or interfere with the provision of Connectivity Australia's Web Hosting to any person; or
- result in unauthorised access to the Web Hosting Platform.
The Client must ensure that the Hosted Content:

does not infringe any third party intellectual property right or other rights;
does not breach any law, standards, content requirements or applicable codes of conduct;
does not contain material that is defamatory, pornographic, depicts acts of violence, sexual acts or which may perpetuate hatred against any person or group or have the likely effect of causing offence or harm;
does not encourage or involve the collection or harvesting of screen names or e-mail addresses of others for the purpose of sending unsolicited e-mails or exchange;
does not involve the receipt or collection of responses from bulk solicited e-mail;
does not contain any instructions which if implemented might cause damage or injury to any person or property; and
without limiting the generality of the above, will not expose Connectivity Australia to the risk of any claim, legal or administrative action.

The Client must not use or permit the use of the Services or the Client Web Site for any purpose that may:
- menace or harass any person or cause damage or injury to any person or property;
- be regarded by a reasonable person as offensive;
- involve the transmission or distribution of unsolicited bulk email from a domain name hosted by Connectivity Australia;
- involve the publication of any material that is defamatory or obscene; or
- constitute an infringement or commission of an offence against the laws of the Commonwealth or a State or Territory.
If Connectivity Australia considers on reasonable grounds that the Client has breached its obligations in clauses 7.1, 7.2 or 7.3, Connectivity Australia may, (but is not obliged to) and without prejudice to any other right, claim or action it may have against the Client remove the Hosted Content from the Web Hosting Platform.
If Connectivity Australia removes any of the Hosted Content, the Client must pay Connectivity Australia's reasonable costs within 14 days of receipt of an invoice from Connectivity Australia for those costs.
If there is any claim by a third party against Connectivity Australia arising directly or indirectly from a breach of the Client's obligations under clauses 5, 7.1, 7.2, 7.3 or 9 the Client must indemnify Connectivity Australia against all liability, loss, damage, cost and expense (including legal fees and expenses) which may arise directly or indirectly in respect of the claim.
Connectivity Australia will not systematically review the Hosted Content to ensure that the Client has complied with clauses 7.1, 7.2 and 7.3.
Connectivity Australia will refer all complaints in relation to the Hosted Content to the Client. The Client must respond to any complaint in relation to the Hosted Content within 7 days from the date on which the Client is advised of the complaint and advise Connectivity Australia of the outcome.

Connectivity Australia warrants that it will:

use all reasonable efforts to meet or exceed acceptable service levels; and
use all reasonable efforts to repair faults reported by Clients.

Connectivity Australia` maximum liability to the Client for loss or damage arising under clauses 7.9 is limited to the monthly fees and charges for the Services for each month the service levels fall below a reasonable expectation.
Except as provided in clauses 7.9 and 8.2 Connectivity Australia gives no other warranties to the Client, express or implied with respect to Web Hosting or any other services provided to the Client under this agreement, and all such warranties are excluded.

8. Liability

Except as provided in clauses 7.10 and 8.2, Connectivity Australia will not be liable to the Client (whether in contract, tort or otherwise) for any direct, indirect or consequential loss which may arise in relation to the Services provided to the Client under this agreement.
If a term is implied by law into this agreement, and the law prohibits provisions in a contract excluding or modifying Connectivity Australia` liability under that term, then it will be included in this agreement. However, the liability of Connectivity Australia for any breach of such term will, if permitted by that law, be limited at the option of Connectivity Australia, to one or more of the following:
In relation to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment cost of replacing the goods or acquiring equivalent goods; or
- the payment of the cost of having the goods repaired;
- in relation to services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
Connectivity Australia will not be liable to the Client or any other person (whether in contract, tort or otherwise) for any loss or damage resulting from or arising as a consequence of the Client's use of the products and services of Business Partners or third parties or any actions, conduct, material and information provided by the Business Partner or third parties to the Client relating to the subject matter of this agreement.

9. Security and Integrity

If Connectivity Australia considers that the Client Web Site or the Client's use of the Services is a threat to the security or proper functioning of the Web Hosting Platform, Connectivity Australia may immediately discontinue the Client's access to the Services, remove the Hosted Content from the Web Hosting Platform and / or terminate this agreement.
Connectivity Australia may, at the cost of the Client, access or request copies of the Hosted Content or scripting work:
- to confirm that the Hosted Content or scripting work will not threaten the integrity of the Web Hosting Platform; or
- to check for compatibility and viruses.
Connectivity Australia reserves the right not to allow an executable file to become executable on the Web Hosting Platform if Connectivity Australia considers that the file may be a threat to the security or integrity of the Web Hosting Platform.

10. Confidential Information

Subject to clause 10.2, each party agrees to strictly maintain the confidentiality of all Confidential Information of the other party disclosed, exchanged or otherwise provided under this agreement. Neither party may use, copy, or disclose any Confidential Information of the other party except as contemplated by this agreement.
A party may disclose Confidential Information of the other party if:
- the disclosure of that Confidential Information is permitted or required by law, including, without limitation, if the disclosure is required by the rules of any stock exchange;
- the party whose Confidential Information is to be disclosed consents to the disclosure; or
- disclosure to a third party is necessary for the performance of a party's obligations under this agreement, and the third party acknowledges the confidential nature of the Confidential Information and agrees to be bound by the provisions of this clause.

11. Term and Termination

This agreement will commence on the date of acceptance of the Application and continue for the Term.
Either party may terminate this agreement without cause on 60 days notice to the other party.
On expiry of the Term the agreement will be automatically extended for a further term of one year unless either party gives thirty days notice of its intention not to renew the agreement.
A party may terminate this agreement by notice in writing to the other party if the other party breaches any of the terms of this agreement and the breach is not capable of remedy or is not remedied within 30 days of receipt of a notice to do so.
Connectivity Australia may terminate this agreement immediately if the Client:
- becomes insolvent or has a receiver, manager, administrator or liquidator appointed or appears likely to do so; or
- does not pay any of the Client Charges due under this agreement within 30 days from the date that the Client Charges fall due.
Upon the termination of this agreement for any reason:
- each party must promptly deliver to the other party all Confidential Information of the other party, or will otherwise destroy the same if directed by the other party;
- the Client must promptly deliver to Connectivity Australia all the Connectivity Australia Material provided to the Client pursuant to this agreement; and
- Connectivity Australia will remove the Client Web Site and the Hosted Content from the Web Hosting Platform.
Notices pursuant to this agreement must be in writing and sent by prepaid registered post, facsimile or by email to the address of Connectivity Australia and the Client as set out in the Application or to the address last notified.
A notice is taken to be received:

in the case of a letter delivered by prepaid registered post, two days after the date of posting;
in the case of a facsimile, on creation of an entry in a transmission log kept by the facsimile machine from which it was sent; and

In the case of email, on the date of delivery.

13. Miscellaneous Assignment

The Client may not assign its rights and obligations under this agreement without the prior written consent of Connectivity Australia (which consent will not be unreasonably withheld).
Connectivity Australia may assign or novate its rights and obligations under this agreement by notice to the Client.

No right under this agreement will be taken to be waived except by notice in writing signed by the party entitled to waive such right.
A waiver by a party will not prejudice its rights in respect of any subsequent breach of this agreement by the other party.
Any failure by a party to enforce any part of this agreement, or any forbearance, delay or indulgence granted by the party, will not be construed as a waiver of the party's rights under this agreement.

The Client warrants that it has not relied on any representation made by Connectivity Australia which has not been expressly made in this agreement or in any description or specifications contained in any other document supplied by Connectivity Australia.

Neither party may make any press or other announcement or release relating to this agreement or the Hosted Content where such announcement or release relate to or refers directly or indirectly to, Connectivity Australia or the subject matter of this agreement, without the other party's prior consent.
Except as provided in clause 6.2.2, neither party may include the other party in its vendor/client list without the other party's prior written consent.

In addition to clause 2.4, Connectivity Australia may vary these terms and conditions at any time by giving the Client not less than 30 days written notice. If the Client does not agree to the variation, it may terminate this agreement by notice to Connectivity Australia before the date on which the variation is to take effect.

These terms and conditions, the Application and the Service Specifications constitute the entire agreement between the parties with respect to the Connectivity Australia' Web Hosting and supersede all previous agreements, proposals, representations or negotiations, whether written or oral.

Clauses 7 and 8 survive termination of this agreement.

This agreement is governed by the laws in force in Victoria, Australia, and the parties submit to the non exclusive jurisdiction of courts of Victoria.

14. Dictionary

In this agreement these words have the following meaning:
Application means the application form to which these terms and conditions are annexed.

Authoring Software means the software used by the Client to develop the Hosted Content and install the Hosted Content on the Web Hosting Platform.

Connectivity Australia' Web Hosting means the web hosting products and services supplied by Connectivity Australia from time to time.

Connectivity Australia' Web Hosting Web Site means the web site at the URL www.connectivity.com.au

Business Partner means any party recommended to the Client by Connectivity Australia for the provision of services relating to the development of the Hosted Content.

Client Charges means the charges payable under clause 4.

Client Web Site means the web site located at the domain name specified in the Application or as notified by the Client from time to time that is hosted by Connectivity Australia through the provision of the Services, on these terms and conditions.

Commencement Date means the date indicated in the Application as the date on which Connectivity Australia will commence providing the Services following the installation of the Hosted Content on the Client Web Site or the date that Connectivity Australia commences providing the Services.

Confidential Information means all information exchanged between the parties, pursuant to this agreement or in the course of the provision of Connectivity Australia' Web Hosting, but excluding information that:
- is in the public domain; or
- enters into the public domain other than by breach of this agreement.
Customer Support Centre Services means the telephone/fax/email help-desk support provided by Connectivity Australia or a third party to Clients from time to time.

End-User Information means information relating to an end-user including information relating to access of the Client Web Site by third parties.

GST means the tax imposed or to be imposed by the A New Tax System (Goods and Services Tax) Act 1999 (C'th) and the related imposition acts of the Commonwealth.

Hosted Content means the material and software code placed on the Client Web Site and stored on the Web Hosting Platform including any data created by the operation of the Client Web Site and all variations of the Hosted Content but excluding the End-User Information and log files.

Service Specifications means the Connectivity Australia Web Hosting service specifications determined by Connectivity Australia from time to time in relation to the Services and includes the Connectivity Australia Web Hosting Platform Specifications and the Connectivity Australia Web Hosting Product Specifications as amended from time to time.

Services means those Connectivity Australia Web Hosting products and services selected by the Client in relation to the operation of the Client Web Site (as varied or renamed by Connectivity Australia from time to time) and, unless expressly excluded, includes Service Specifications and Support Services.

Support Services means the Customer Support Centre Services and services of third parties relating to the provision of support offered by Connectivity Australia to the Client.

Connectivity Australia means Connectivity Australia Pty Ltd (ABN: 80 106 510 669).

Connectivity Australia Material means all material provided to the Client by Connectivity Australia pursuant to this agreement.

Term means the period from the date on which Connectivity Australia notifies the Client that it accepts the Application until one year from the Commencement Date.

Web means the World Wide Web.
Web Hosting Platform means the integrated system of computer equipment, software and telecommunications services that comprise the infrastructure which allows Connectivity Australia to provide the Services.
In this agreement unless the contrary intention appears:
- terms defined in the Application have the same meanings when used in these terms and conditions;
- a reference to this agreement includes the Application and each of the Schedules and Annexure to these terms and conditions and all information contained or attached to the Schedules.
- Headings are inserted for convenience and do not affect the interpretation of this agreement.