Terms and Conditions – Internet Services Provisions

1 Definitions & Interpretation

1.1 Terms capitalised throughout this Agreement have the meanings set out in Clause 21 of this Agreement.

1.2 This Agreement will be interpreted in accordance with the provisions of Clause 21 of this Agreement.

2 General

2.1 The agreement made between us on these Terms commences on the date Safehost accepts Customer’s application for the services.

2.2 Acceptance of Customer’s application for services is deemed to be the date Safehost creates Customer’s account on its servers for use by Customer.

The Service is provided on an “as is, as available” basis. Safehost gives no warranty, express or implied, for the Web Hosting Services provided.

Safehost will not be held liable for reimbursement for losses of income due to disruption of services by Safehost or its providers beyond the fees paid by the customer to Safehost for services.

We may vary these terms, our pricing for any service, or the terms of the operation of the Service, at any time by updating this document on our website, by email or in writing. All changes will become effective upon publication of the changes.

This agreement is governed by the laws in place in the State of Queensland, Australia.

3 Provision of Services

3.1 While Safehost shall make every reasonable effort to protect data stored on our Server(s), Safehost is not responsible for Customer’s data, files or directories residing on Safehost’s equipment. The customer is solely responsible for maintained data, file and directory structure backups.

3.2 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 notify at least 48 hours in advance of the maintenance via email.

3.3 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will notify via email after the maintenance has been completed.

3.4 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. 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 Customer data recovered from our backups.

3.5 You agree to Safehost’s use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.

3.6 The Service is provided by Safehost from its data centres in Australia and Internationally. Safehost will determine in its absolute discretion from time to time the data centre location from which your Service is provided. Safehost reserves the right to migrate your web site to a new operating system platform if our operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in Safehost’s opinion becomes unreliable. Safehost will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility for web site failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your web site post-migration and notified us of any required changes to the web site configuration.

3.7 In contracting with Safehost for the Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by Safehost to deliver the Service.

4. Charges and Payment

4.1 The customer will pay the charges for the provision of the services at the rate and in the manner specified on the Safehost Web Site or as otherwise agreed between the parties in writing.

4.2 The charges will be based on prices specified in the price list located on the Safehost Portal and Web Site, or as provided in the written quotation and current from time to time.

In the event that:

a) Safehost is required to perform the Services in circumstances other than those expressly or reasonably anticipated; or there is a change in the timing or complexity of the Services; and such circumstances are not the result of a breach of this Agreement by Safehost, then Safehost will notify the customer of any additional fees payable by the customer as a result of such changes.

b) Payment of the Charges will be due in advance of provision of the Services unless otherwise agreed by Safehost in writing

4.3 Safehost reserves the right to charge the customer interest on any outstanding amounts under this Agreement.

4.4 Where the Services include domain name registration:

4.5 Safehost will raise an invoice for payment to the appropriate naming authority for the hosting of that name specifying the date by which payment by the customer must be made; and failure for any reason by the customer to make payment before the specified date will entitle Safehost to release the customer ‘s domain name without any liability for loss suffered by the customer howsoever arising.

5. Monitoring of Bandwidth

5.1 The customer ‘s subscription to the Services covers permitted bandwidth (monthly transfer limit) as stated on the customer’s Written Quotation/Agreement.

5.2 Safehost reserves the right to: monitor the customer’s monthly bandwidth usage; implement restrictions on available bandwidth in order to protect all Services using the Safehost Servers from time to time when necessary; and make additional charges for usage above the limit at the prevailing rate as stated in the agreed quotation.

6. Domain Name Registration

6.1 The customer is responsible for checking the accuracy and correct spelling of the customer’s domain name and its ownership entitlement as identified on Safehost documents sent to the customer and will notify Safehost within 24 hours of any corrections required.

6.2 Upon registration of the customer’s domain name, the customer shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority and generally to the terms and conditions of any such authority having similar force and to which the customer may become subject as a result of the provision of the Services by Safehost.

6.3 The customer agrees to indemnify Safehost, its employees and agents and shall hold them harmless from and against all loss, penalties, damages, liability, claims or expenses whatsoever arising from any claims by third parties as to ownership or other rights to use a domain name where one has been registered by or transferred to Safehost or arising in any way by the customer infringing (whether innocently or knowingly) third party rights.

6.4 If you are registering or transferring a domain name you must also agree to the Domain Name Registration Agreement. (https://www.tppwholesale.com.au/legals/domain-terms/)

6.5 Domains shall be renewed at the same price as new registrations. The current pricing is displayed on our website. (https://client.safehost.com.au)

6.6 Domain renewal reminders will be sent in advance of expiration via email to the address stored in your client area.

6.7 Should an expired domain enter the redemption period, the cost of restoring the domain shall be no more than $80 (incl. GST).

7. Unauthorised use by Customer

7.1 Safehost enforces ‘Good Netiquette’ practice and all customers using Services and facilities offered by Safehost are obliged to comply with this Code of Practice and Safehost’s Acceptable Use Policy.

7.2 The customer must comply with any directions regarding the Services given to the customer from time to time by Safehost, including, but not limited to procedures imposed from time to time to prevent unauthorised use of or access to the Services.

7.3 The customer must not engage in or otherwise permit, any unauthorised use of Safehost facilities or Services by the customer, its employees, contractors, customers or third parties and in particular, the customer must not:

a) permit any third party to use or to access any of the Services for any purpose without the prior written consent of Safehost; serve information in the form of text or graphics from Safehost Servers which may: directly or indirectly lead to a contravention of any law; or bring Safehost into disrepute or call into question any action taken by Safehost on the customer’s behalf; use the Safehost Servers to either send bulk unsolicited e-mail, or append a domain name or e-mail address which has its mx record or DNS pointing to the Safehost Servers to such bulk unsolicited e-mail; or use or attempt to use protocols, procedures or scripts which in the unfettered opinion of Safehost have the effect of degrading or the potential to degrade the Services and facilities offered by Safehost.

7.4 The customer agrees to immediately inform Safehost if it becomes aware of any unauthorised use of all or any of the Services by any person.

8. Suspension of Services

8.1 Safehost may suspend access to the Services:

to preserve data and integrity; if there is a security breach; or if there is a malfunction in the Services.

8.2 Safehost reserves the right to terminate or suspend the Services to the customer indefinitely and without refund or compensation in the event that:

a) the Services are used, or appear to Safehost to be intended to be used, by a customer or a customer of the customer in a manner deemed inappropriate by Safehost; the provision of the Services is likely to expose Safehost to any liability as a result of a breach of any law or any third party rights; or the customer otherwise breaches this Agreement.

8.3 Suspension of Services by Safehost will continue until the problem or breach is rectified or until otherwise agreed.

8.4 Safehost will not be liable to the customer, it s employees, contractors, customers or agents as a result of taking the action referred to in this Clause 8 where such action is taken on a view which is formed on a reasonable basis by Safehost.

9. Loss of Data

9.1 Safehost will take all reasonable steps to safeguard the Safehost Servers and the data contained therein, however Safehost will not be responsible for any loss of customer data stored or intended to be stored on the Safehost Servers or back-up devices and the customer will not be entitled to any form of compensation from Safehost in the event of loss of data.

10. Interruptions to Service

10.1 Safehost takes no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services caused by or resulting from any alteration, modifications or amendments due to changes and specifications requested or implemented by the customer whether or not beyond the Services already supplied.

10.2 In the event of total systems failure resulting in the disruption of service to the Internet from Safehost Servers, Safehost will endeavour to repair and reinstate the service within 24 hours of detection depending on the severity of the failure.

10.3 If failure is caused by the customer or any agent or customer of the customer to whom access to Safehost Servers was given, the customer shall pay all costs to reinstate and/or repair the customer server.

11. Customer Deliverables

11.1 The customer will provide Safehost with the Customer Deliverables in accordance with the time frames agreed between the parties.

11.2 Safehost will not be responsible for any deficiency or alleged deficiency in the Services which is attributable to:

incorrect information provided by the customer; or failure by the customer to provide the Customer Deliverables or other relevant information.

11.3 The customer will have no remedy against Safehost in relation to any delay or failure to complete the Services, where such delay or failure is the direct or indirect result of any act or omission of the customer or a breach by the customer of this Agreement.

12. Indemnity

12.1 The customer warrants that:

it owns, or has a licence to use the Intellectual Property Rights in any Customer Deliverables provided to Safehost, including any trade marks; Safehost’s provision of Services to the customer will not infringe any third party’s Intellectual Property Rights.

12.2 The customer indemnifies Safehost against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against Safehost) which Safehost may sustain or incur as a result, whether directly or indirectly, of:

any breach of this Agreement or the warranties contained herein by the customer including, but not limited to, a breach, in respect of which Safehost exercises an express right to terminate this Agreement; andany claim by any person arising out of a breach of any of the warranties contained in Clause

13. Implied Terms

13.1 Subject to Clause 13.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

13.2 In the event that a condition or warranty cannot be excluded by law, the liability of Safehost for any breach of such condition or warranty will be limited, at the option of Safehost, to:

the supplying of the Services again; or the payment of the cost of having the Services supplied again.

14. Limitation of Liability

14.1 Safehost will be under no liability to the customer, or any customers of the customer, in respect of any loss of profits or data, consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of:

goods or Services supplied pursuant to this Agreement; failure or omission on the part of Safehost to comply with its obligations under this Agreement; or supply of Customer Deliverables by the customer which are incomplete, inaccurate, illegible, out of sequence, in the wrong form or arising from late arrival or non-arrival or any other fault by the customer.

14.2 The customer warrants that it has not relied on any representation made by Safehost which has not been stated expressly in this Agreement.

14.3 The customer will at all times indemnify and hold harmless Safehost and its officers, employees and agents (‘those indemnified’) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

a breach by the customer of its obligations under this Agreement; or any wilful, unlawful or negligent act or omission of the customer.

15. Confidential Information

15.1 Each party will use the Confidential Information of the other party only for the purposes of this Agreement.

15.2 Neither party to this agreement will disclose to any third party (other than its employees or contractors in their capacities are such) any Confidential Information of the other party which information is not lawfully in the public domain.

15.3 Any lawfully required disclosure of Confidential Information to any governmental or other controlling body will be limited to essential information only and, if possible, made subject to a confidentiality order.

16. Term

16.1 The minimum contractual period for the provision of the Services by Safehost is 12 months from the first day that the Services are made available to the customer (‘Initial Term’), or as specified as part of individual quotations and/or agreements.

16.2 Subject to Clause 16.3, following the expiry of the Initial Term, this Agreement will continue until terminated by either party pursuant to Clause 17 of this Agreement.

16.3 The customer may elect to terminate this Agreement after the Initial Term by providing Safehost with written notice to that effect one month prior to the expiry of the Initial Term.

17. Termination

17.1 One month minimum notice in writing must be given to terminate this Agreement, unless otherwise specified in either the Quote or subsequent Licensing Agreement.

17.2 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:

the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14 days after receiving notice requiring it to do so; or any event referred to in Clause 17.2 occurs.

17.3 Each party will notify the other immediately if:

it ceases to carry on business; it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business; any step is taken to enter into any arrangement between that party and its creditors; any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.

17.4 Termination of this Agreement will not affect the accrued rights or remedies of either party.

17.5 Deposits paid for the commencement of work are non-refundable.

18. Force Majeure

18.1 Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.

19. General

19.1 Severance If any part of this Agreement is deemed unenforceable then:

if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or in any other case the provision is severed,

then the rest of this Agreement will continue to be legal and enforceable.

19.2 Waiver The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:

to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and at any other time to insist on performance of that or any other obligation of the other party under this Agreement.

19.3 Notices Each party notifying or giving notice under this Agreement will do so: in writing; addressed to the address of the recipient; and hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party’s e-mail address or facsimile number. A notice given in accordance with Clause19.3(a) is deemed received: if hand delivered, on the date of delivery; if sent by prepaid post, 4 days after the date of posting within Australia and 7 days after the date of posting outside Australia; and if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).

Safehost may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.

19.4 Entire Agreement This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.

20. Governing Law

This Agreement is governed by the laws of the State of Queensland.

21. Definitions and Interpretations

21.1 In this Agreement, the following terms will have the following meanings:’Acceptable Use Policy‘ means the policy governing acceptable use of the Safehost Services annexed in this Agreement as updated from time to time and posted on the Safehost Web Site; ‘Agreement’ means this agreement, including the Acceptable Use Policy, governing the provision of the Services by Safehost to the customer as may be varied from time to time by the parties in writing; ’Charges’ means the amount payable for provision of the Services as prior agreed between the parties in writing; ’Customer’ means the party who has entered into this Agreement for Services with Safehost;

‘Customer Deliverables’ means all information and materials to be provided by the customer to Safehost under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the customer to Safehost from time to time;

‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;

‘Safehost Servers’ refers to all Software Processing Units belonging to Safehost that are connected to the Internet;

‘Confidential Information’ of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;

‘Safehost Web Site’ means the web site maintained by Safehost and located at https://www.safehost.com.au or any other URL notified by Safehost to the customer from time to time;

‘Intellectual Property Rights’ means all intellectual property rights including, but not limited to:

patents, copyright, circuit layout rights, designs, trade marks ; and

any application or right to apply for any of the rights referred to in paragraph (a);’Internet’ means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;’Services’ means those Services which the customer and Safehost agree are to be provided to the customerby Safehost in accordance with the package descriptions and payment details set out on the Safehost Web Site, or as provided in the written quotation and current from time to time.

21.2 In this Agreement:

clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement; words importing the singular will include the plural and vice versa; words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;reference to a party to this Agreement includes reference to that party’s successors and assigns.