TERMS OF BUSINESS
This document, read together with the Plan Details, sets out the Terms of Business where $11 Host Pty Ltd (ABN 31 169 905 159), trading as Eleven Host, of PO Box 248, Doncaster East VIC 3109 (“Company”, “We” or “Us”), is appointed to provide services to its client (“Client” or “You”). An agreement is formed under these Terms of Business when the Client applies to acquire the Services and the Company agrees to supply the Services. The Client acknowledges and agrees that these Terms of Business shall exclusively govern the supply relationship contemplated between the parties for any services provided under these Terms of Business, and shall be deemed to automatically supersede and override any other understandings or agreements, and any of the Client’s own terms and conditions or trading terms.
- 1.1. In these Terms of Business, unless the context requires otherwise:
“Account” means the account in the name of the Client in relation to the provision of Services by the Company;
“Confidential Information” of a party means all information including trade secrets, know-how, ideas, concepts, strategies, and any other information whether in writing or otherwise, relating to products, services, systems, methodologies, affairs, businesses, and test data, compilations of information and data and computer programs, but excluding information that is in the public domain otherwise than as a result of a breach of any obligation of confidentiality;
“Domain” or “Domain Name” means the Internet domain or domain name provided by the Client for use in directing traffic to the Website and/or emails to the email accounts provided by the Company;
“Fees” means the fees payable by the Client to Company for the Services as set out in the Plan Details;
“Intellectual Property Rights” means any and all intellectual property rights throughout the world, subsisting whether now or in the future, including rights of any kind in relation to concepts, ideas, or other expressions (in verbal, written or electronic form), inventions, discoveries and novel designs, patents, trade secrets, copyright, designs, trade marks and service marks (whether registered or unregistered) including names and logos, moral rights, trade, business and company names, and other proprietary rights, and any rights to registration of all such rights;
“Plan” means a plan offered by the Company for the provision of Services as selected by the Client;
“Plan Details” means the details of the selected Plan as set out at Schedule 1;
“Services” include website hosting, email hosting and support services, as set out in the Plan Details;
“Term” means the term of these Terms of Business as determined in accordance with clause 10.1;
“Website” means the Client’s website hosted on a server provided by the Company in connection with the Services.
- 1.2. In these Terms of Business, unless the context requires otherwise:
(a) headings are for ease of reference only and do not affect the meaning of this Agreement;
(b) the singular includes the plural and vice versa;
(c) other grammatical forms of defined words or expressions have corresponding meanings;
(d) a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of, or schedule or annexure to, this Agreement and a reference to this Agreement includes any schedules and annexures;
(e) a reference to a clause, document or agreement, including these Terms of Business, includes a reference to that clause, document or agreement as novated or amended from time to time;
(f) a reference to a statute, ordinance or by-law includes regulations and other instructions under it and consolidations, amendments, re-enactments or replacements of any of them;
(g) a reference to a party includes executors, administrators, permitted assigns and successors of that party;
(h) “including” means “including without limitation”; and
(i) a reference to dollars or currency means Australian dollars.
2. COMPANY’S OBLIGATIONS AND WARRANTIES
- 2.1. The Company will provide the Services associated with the Plan nominated by the Client in accordance with the Plan Details.
- 2.2. The Company will use good faith endeavours to carry out the Services.
- 2.3. The Company will carry out the Services in a professional and businesslike manner, and warrants that the personnel assigned to carry out the Services will have the proper skills and expertise to carry out the Services in a competent manner.
- 2.4. The Company warrants that the Services supplied by Company will be of merchantable quality and of good workmanship.
- 2.5. The Client acknowledges and agrees that:
- (a) the Company does not warrant, and cannot guarantee, that the Services will be continuous; and
- (b) the Services may be disrupted from time to time due to required maintenance or circumstances beyond the Company’s reasonable control.
Nonetheless, the Company will endeavour to minimise any outages and wherever possible to conduct any maintenance with minimal disruption to the Services.
3. CLIENT’S OBLIGATIONS AND WARRANTIES
- 3.1. The Client warrants that information provided to the Company in its application, including identity and contact information, is true and correct in all material respects and the Client acknowledges that the Company will rely on this information.
- 3.2. The Client must provide a Domain Name, at their own cost, for use in connection with the Services.
- 3.3. The Client must provide the Company with any assistance and information as the Company reasonably requires to enable the Company to provide the Services, including Domain Name details and Website content. If the Client does not provide the required assistance or information, the Company may not be able to provide the Services in a timely manner or at all.
- 3.4. The Client agrees that it is solely responsible for all activity conducted on the Account. The Client must keep any access credentials (such as passwords) secret and notify the Company immediately if any such credentials become known to others or the security of the Account is otherwise compromised. The Company recommends that the Client chooses a strong password that is difficult to guess and changes passwords regularly.
- 3.5. The Client must ensure that:
(a) any material, data, information, images or content provided by the Client will be accurate, complete and lawful, and will not be misleading, defamatory, offensive, abusive, in breach of any privacy, Intellectual Property Rights or other third party rights or in breach of any laws;
(b) all third party software and equipment it provides to Company is either owned by or licensed to the Client and that Company is permitted to use such third party software and equipment for the Job;
(c) its use of the Services will comply with all relevant laws, regulations and codes.
- 3.6. The Client must ensure that all safeguards are taken to ensure that any content supplied to the Company and/or uploaded onto the Website or otherwise transmitted using the Services does not contain any viruses or have any impact on the security of Company’s servers.
- 3.7. The Client must not use the Service:
(a) to send unsolicited commercial messages (“spamming”) or bulk electronic messages (“mail bombing”);
(b) to transmit or distribute any virus, worm, trojan or other malicious software;
(c) to engage in denial-of-service attacks;
(d) for any activity that directly or indirectly is (or is likely or intended to be) detrimental to our services or jeopardises the reliability or performance of our systems;
(e) to harass, stalk, intimidate or vilify others;
(f) to publish, distribute or communicate material that is abusive, obscene, offensive, pornographic or illegal;
(g) to illegally access or distribute material that is protected by Intellectual Property Rights, including illegally downloading or streaming movies or music;
(h) to commit or engage in fraud or any fraudulent behaviour;
(i) in a way that causes our services to be blocked or placed on any blacklist;
(j) to gain (or attempt to gain) unauthorised access to other Internet servers or systems; or
(k) engage in any activity that is contrary to any law or regulation.
- 3.8. The Company reserves the right to report any activities using the Services that the Company reasonably believes may be illegal to the relevant authorities.
4. FEES AND PAYMENT
- 4.1. In consideration of the Company providing the Services, the Client will pay the Fees to Company in accordance with this clause.
- 4.2. Fees will be invoiced according to the billing cycle specified in the Plan Details and are payable on the date of invoice, unless otherwise agreed in writing.
- 4.3. Payment may not be withheld because of minor defects or omissions in the Services which do not materially affect use. The Client agrees that it may not make any deductions or set offs against any payments due under these Terms of Business.
- 4.4. The Company may recover on a full indemnity basis any Fees and costs, including legal costs and administrative costs, incurred in recovering any amounts owed by the Client.
- 4.5. By applying for Services, the Client authorises the Company to communicate with credit agencies regarding its credit history, including by disclosing information provided by the Client, prior to approving the application and from time to time during the Term.
5. SERVICE LIMITATIONS
- 5.1. Depending on the limitations outlined in the Plan Details for the relevant Plan:
(a) the Client may purchase additional disk space to be added to their allowance, at a price offered by the Company;
(b) the Client may purchase additional data to be added to their data allowance, at a price offered by the Company.
- 5.2. If, in any given monthly cycle starting on the anniversary of the start of the Term, the Client exceeds the allocated data allowance for the relevant Plan and any additional purchased data, the speed of the bandwidth connection may be reduced (“throttled”) until the end of the monthly cycle.
- 6.1. The Company may sub-contract the whole or any part of its obligations under these Terms of Business at its discretion.
7. CONFIDENTIAL INFORMATION
- 7.1. Each party agrees to keep the Confidential Information of the other party confidential and agrees that it will not use or disclose any Confidential Information other than as strictly required for the purpose of performing its obligations under these Terms of Business.
8. INTELLECTUAL PROPERTY
- 8.1. The Client retains ownership of the Domain Name and all Website content provided and/or uploaded by the Client.
- 8.2. Subject to clause 8.1, Intellectual Property Rights in any Services provided by Company, including any computer software, programs, templates, systems and source code, will be owned by Company and will not be transferred or assigned to the Client.
- 8.3. The Company grants to the Client a licence to use the Intellectual Property Rights specified in clause 8.2 for the sole purpose of operating the Website and using the other Services specified in the Plan Details in the manner intended. Such licence is conditional upon full payment of the relevant Fees and does not include a licence to sub-licence the Services to a third party.
9. LIMITATION OF LIABILITY AND INDEMNITY
- 9.1. The Company does not warrant that the Services are free of computer viruses, tamper proof or immune from or resistant to computer viruses, tampering, hacking or interference by third parties.
- 9.2. The Company shall not be liable for:
(a) any defect in or alteration to the Services provided by Company resulting from a misuse of the Services by the Client and/or any employee or agent thereof;
(b) any content provided and/or uploaded by the Client;
(c) any intervention by a third party;
(d) the use of any incompatible third party software or third party equipment in combination with the Services; or
(e) any consequences of any of the foregoing.
- 9.3. The Client hereby indemnifies and holds harmless the Company, its related bodies corporate and their respective directors, officers, employees and agents, and each of them, in respect of any loss, claim, damage, action, suit or proceeding by any person arising from:
(a) any material or content provided and/or uploaded by the Client pursuant to these Terms of Business or in connection with the Services; and
(b) any act, omission or breach of these Terms of Business by the Client.
- 9.4. To the full extent permitted by law, the Company excludes all liability for costs, loss or damage suffered in connection with these Terms of Business and the Services. Except as expressly provided in these Terms of Business, the Company excludes all terms and conditions, warranties and representations, whether express or implied. In relation to any liability that cannot be lawfully excluded, the liability of Company is limited in its discretion to the replacement or repair of the goods, or re-supply of the services, or payment of the cost of replacement or repair of those goods or re-supply of those services.
- 9.5. Certain legislation such as the Competition and Consumer Act 2010 (Cth) or Australian Securities And Investments Commission Act 2001 (Cth) may provide implied guarantees that cannot be excluded by law. To the extent that any such law apply, nothing in these Terms of Business limits, excludes or modifies or purports to limit, exclude or modify such non-excludable guarantees. Except for any liability that cannot by law be excluded, the Company (including its officers, employees and agents) excludes all liability, including negligence, for any personal injury or any loss or damage, including loss of opportunity, whether direct, indirect, special or consequential, arising in any way out of these Terms of Business or the provision of the Services.
- 9.6. This clause 9 survives termination or expiration of these Terms of Business.
10. TERM AND TERMINATION
- 10.1. These Terms of Business will apply from the date the Company accepts the Client’s application to acquire the Services and continues:
(a) for the minimum term specified in the Plan Details (“Minimum Term”); and
(b) thereafter for continuing periods of the same duration as the billing cycle specified in the Plan Details (“Billing Cycle”), until either party notifies the other that they wish to end the Term at the end of the current billing cycle;
unless terminated sooner in accordance with clause 10.2 or clause 11.2.
- 10.2. Either party may terminate these Terms of Business immediately by giving written notice where:
(a) the other party breaches any of the terms or warranties in these Terms of Business and the breach is not remedied (if it is capable of being remedied) within fourteen (14) days after receipt of a written notice to the other party to remedy the breach;
(b) the other party goes into compulsory or voluntary liquidation or enters into any composition, arrangement with or assignment for the benefit of that party’s creditors or has appointed a manager, administrator, trustee, receiver, receiver and manager, liquidator or similar officer in respect of any of its assets;
(c) an order is made or a resolution is passed for the winding up or the resolution of the other party;
(d) the other party ceases to carry on business;
(e) the Client becomes bankrupt; or
(f) the Company is ordered by a court, police or a regulatory authority to terminate your access to the Services.
- 10.3. The Company may, at its discretion, suspend the Services or terminate these Terms of Business, immediately by giving written notice to the Client in the event that the Service is used in any way that contravenes the terms of clause 3.7. In the case that the Services are suspended:
(a) the Client will not be liable for any Fee for the suspension period;
(b) the Company may elect whether to resume the Services or terminate the Terms of Business at its discretion.
- 10.4. The Company may, at its discretion, immediately suspend the Services or terminate these Terms of Business.
- 10.5. Upon termination for any reason, the Client must:
(a) pay the Company for all Services provided by the Company up to and including the effective date of termination; and
(b) return to Company and not use in any way, all of the Company’s Confidential Information in its possession (if any).
- 11.1. We may amend these Terms of Business in any of the following circumstances:
(a) where You agree to the amendment;
(b) where the change will not adversely affect You and We have given you notice of the change before it takes effect;
(c) where the change is to introduce or vary a fee or charge to pass on a tax or levy imposed by law and, before the changes take effect, We have given You notice of the change.
- 11.2. If We amend these Terms of Business during the Minimum Term and the change is adverse to You, We will provide at least twenty-one (21) days notice of the change to You and you may terminate these Terms of Business by notifying Us in writing before the change takes effect.
- 11.3. We may vary or withdraw any Plans at any time by giving You notice, however, such changes will only take effect:
(a) if made during the Minimum Term, at the end of the Minimum Term;
(b) otherwise, at the end of the current Billing Cycle.
- 11.4. Changes to these Terms of Service will be posted on our website at www.11host.com.au.
- 12.1. Any notice that is required by these Terms of Business must be given in writing, which may be given electronically.
- 12.2. Any notice or other communication sent to a party to these Terms of Business using the contact details provided by that party will be deemed to be received:
(a) if delivered by hand — when delivered;
(b) if sent via pre-paid letter — three (3) business days after it is posted;
(c) if sent via facsimile, email or SMS — on transmission by the sender.
13. FORCE MAJEURE
- 13.1. Notwithstanding any other provision of these Terms of Business, neither party will be liable for any failure to fulfil any condition in these Terms of Business where that fulfilment is delayed, prevented, restricted or interfered with for any reason outside that party’s control, including due to fire, storm, flood, accident, war, labour dispute, materials or labour shortage, law or regulation or act, or omissions of any third person including telecommunications carriers or Internet service providers.
14. RELATIONSHIP OF PARTIES
- 14.1. Nothing in these Terms of Business shall be construed to place the parties in the relationship of partners or joint venturers nor shall any party act as agent of the other party.
- 15.1. If any provision or part of this Deed is void, voidable, unenforceable or illegal but would not be void, voidable, unenforceable or illegal if it were read down with a more limited interpretation (if it is so capable), it shall be read down accordingly.
- 16.1. The Client may not assign any right or obligation under these Terms of Business without Company’s written consent.
- 16.2. The Company may assign its rights and obligations under these Terms of Business without restriction.
17. GOVERNING LAW
- 17.1. These Terms of Business shall be governed by and interpreted under the laws of the State of Victoria. The parties irrevocably submit to the jurisdiction of the courts of Victoria and the Commonwealth of Australia.