WEB HOSTING AGREEMENT
This Hosting Agreement (the "Agreement") governs your purchase
and use, in any manner, of all hosting services ordered by you ("the Customer") and accepted by Domain
Name Registrar (Australia) Pty Limited, trading as Domain Registration Services
("DNRA"). The hosting
services subject to this Agreement are those services included in the Service
Options selected by you during the ordering process (collectively, the "Services"). The available Service
Options are located at http://www.domainregistration.com.au/webhosting This Agreement describes the terms and
conditions that apply to such purchase and use of the Services. You must accept
the terms of this Agreement to use the Services.
By checking the box that says “I have read and
accepted the terms of service” and registering for and using the Services, you
acknowledge that you have read this Agreement and agree to be bound by the
terms and conditions contained herein as well as all policies and guidelines
incorporated by reference. If you do
not agree to the terms of this agreement or any modification, do not check the
box and do not continue to use the services.
1 Hosting Services
1.1 The Customer has ordered, and DNRA agrees to
provide (upon acceptance of the Customer's purchase request), the Services
pursuant to the Service Options selected by the Customer. As part of the
Services, DNRA will configure, install, house, maintain, upgrade, monitor,
modify and operate the computer equipment, server(s), operating software,
network equipment and components (collectively, "DNRA's Systems") as necessary to host and serve the Customer's
Content (as defined below) via the Internet in accordance with the Service
Options. The Customer acknowledges that, as a part of DNRA's Systems, DNRA may
retain one or more third-party service providers to supply the necessary
facilities, equipment, and connectivity to provide the Services hereunder.
Subject to the specific terms of this Agreement, DNRA retains sole right and
control over the programming, content and conduct on DNRA's Systems. The
Customer is responsible for securing and maintaining its own Internet
connectivity to access DNRA's Systems.
1.2 Domain Name Services
1.2.1 At the election of the Customer
and in accordance with the Service Options selected by the Customer, DNRA may
provide domain name services, including the hosting of one domain name held by
the Customer (or more than one domain name where a multiple domain name hosting
package is ordered) ("DNS Services")
as part of the Services. If the Customer enters into the separate agreement
governing the provision of domain names to the Customer ("the Domain Agreement"), the
Customer shall provide DNRA with one registered domain name (or more than one
registered domain names where a multiple domain name hosting package is
ordered) (each registered domain name, for the purposes of the Agreement, a
"Customer Domain"). DNRA
shall host the Customer Domain(s) during the effective term of this Agreement
(provided that such domain does not violate any of our Policies http://www.domainregistration.com.au/policies
, or any laws or regulations, DNRA agrees to transfer the Customer Domain
at the direction of the Customer, upon termination of this Agreement, or
otherwise in accordance with the Domain Agreement.
1.2.2 Any Customer Domain shall be
hosted and administered in accordance with terms of the Domain Agreement (which
can be found here http://www.domainregistration.com.au/tc.php
).
1.2.3 DNRA may assign IP addresses to
the Customer as part of the Services. Any IP addresses or other network numbers
assigned to the Customer by DNRA are and shall remain the property of DNRA. If
the Customer terminates this Agreement or DNRA ceases to provide domain name
services, DNRA may, in its sole discretion, reassign or reuse the IP addresses.
DNRA has sole discretion as to the Internet routing of any DNRA network
numbers. Upon termination, DNRA will not have, and the Customer hereby releases
DNRA from, any responsibility or liability for any actions or costs related to
the reassignment or reconfiguration of the Customer's system for any new IP
addresses.
1.3 DNRA shall use commercially reasonable efforts to
make DNRA's Systems and the Service available 99.5% of the time (the "Uptime Goal"). The Uptime Goal
shall be measured within DNRA's System on a monthly basis calculated to include
24 hours per day over each month, but excluding from the numerator and
denominator in the calculation the duration in time of any temporary shutdowns
due to scheduled maintenance (which will not exceed in the aggregate 10 hours
per month), telecommunications or power disruptions caused by third parties,
and any other causes beyond DNRA's reasonable control. Any failure of DNRA to
satisfy the Uptime Goal shall not constitute a breach of this Agreement. The Customer further acknowledges and agrees
that its sole and exclusive remedy for any failure of DNRA to provide the
services in accordance with the uptime goal is to terminate this Agreement
pursuant to section 5.1.
1.4 If the Customer uses any bandwidth or storage space
in excess of the Service Options, DNRA may, in its sole discretion, assess the
Customer with additional charges, suspend the performance of the Services, or
terminate this Agreement. In the event that DNRA elects to take any corrective
action, the Customer shall not be entitled to a refund of any unused pre-paid
fees. The Customer’s use of the Services and access to it is the Customer’s
responsibility. The Customer is responsible for any unauthorised access to the
Services resulting in bandwidth and/or storage usage exceeding the limits in
the Order Form and resultant charges. Should shared server Customers exceed the
specified limits, DNRA will ask them to upgrade to a larger plan or purchase
additional bandwidth or storage space.
1.5 DNRA reserves the right to change or modify the Services,
any Service Options, the terms and conditions of this Agreement, or any policy
or guideline applicable to the Services, at any time in its sole discretion.
DNRA will send a notice to the Customer of any such changes and will post a
notice of such changes on DNRA's web site www.domainregistration.com.au.
Changes to this Agreement or Service Options will be effective 15 days after
the notice is posted. Changes to any policy or guidelines governing the
Services, including the Acceptable Use Policy, shall be effective upon posting
to the DNRA site. The Acceptable use
Policy forms part of this Agreement. If
the Customer does not agree to any change to this Agreement, the Service
Options, or any governing policy or guideline, the Customer's sole remedy is to
immediately terminate this Agreement pursuant to Section 5 (notwithstanding any
notice period). The Customer's continued use of the Services following DNRA's
posting of any changes to this Agreement, the Service Options, or any policy or
guideline will constitute the Customer's acceptance of such changes or
modifications.
1.6 The Customer may change Service Options under the
Agreement with appropriate prior notice.
2 VIRUS PROTECTION SOFTWARE/ANTI SPAM
SOFTWARE
2.1 A virus protection service (“Virus
Service”) is automatically activated for Customers holding EMAIL5, HOST10,
HOST20, HOST40 or HOST100 hosting plans with DNRA (“New Servers”)
2.2 A spam filtering service (“Spam Service”)
is available upon election to Customers on New Servers.
2.3 The Virus Service and the Spam Service
(together, “Spam/Virus Services:” are not available to Customers
on hosting plans other than the New Servers. (“Old Servers”) Customers
who are on Old Servers who wish to have access to either or both of the Virus
Service and Spam Service may request a priority transfer by DNRA from the Old
Server to a New Server
2.4 The Customer acknowledges that no anti-virus
software can guarantee to detect 100% of viruses and accepts use of the
Spam/Virus Services at its own risk.
2.5 DNRA reserves the right to remove
attachments from incoming email messages if there is any indication that the
attachment is, or might be, infected with a virus.
2.6 The Customer acknowledge that DNRA cannot
and does not warrant that the Spam/Virus Services installed on DNRA's servers
will detect all viruses present in e-mails scanned by and transmitted via
DNRA's servers.
2.7 DNRA makes no warranty that the Spam/Virus
Services will be error free or free from interruption of failure.
2.8 DNRA expressly disclaims any express or
implied warranty regarding system and/or the Spam/Virus Services availability,
accessibility, or performance.
2.9 The Spam/Virus Services provide a high level
of protection against viruses but the Customer acknowledges and agrees that it
is solely responsible for protecting its property and email accounts from virus
threats hacking or website 'hijacking'.
2.10 DNRA offers no guarantee that the Spam/Virus
Services will capture all unwanted email sent to the Customer, nor that all
wanted email will be passed through the filter.
2.11 The Customer acknowledges that some email may
be made unavailable when using the Spam/Virus Software, and by requesting to
use the filter the Customer assumes all liability for any lost or altered
email.
2.12 By choosing to use the Spam/Virus Software,
the Customer agrees to hold DNRA faultless for any damages resulting from the
use of the filtering service.
2.13 The software installed on DNRA's servers minimises
the risk of receiving SPAM and viruses through email delivered via DNRA’s
servers only and does not mean a computer will not be affected by a virus. DNRA
recommends that Customers also have Anti-virus programs for extra protection
for viruses that may arrive through the Customers use of CD-ROM's, floppy disks
and downloads.
2.14 The Customer waives any claims against DNRA in
connection with access to or use of the Spam/Virus Services installed on DNRA's
servers, including without limitation any claims based upon the deletion,
misdirection or delay of emails and loss of, damage to, records or data. Due to
the volatile nature of the Internet and its offerings, the accuracy of the
performance of the Spam/Virus Services is not guaranteed by the supplier of the
Software, nor is it guaranteed by DNRA.
2.15 Email transmitted from DNRA servers will not
be scanned by the Spam/Virus Services until the Customer has indicated its
willingness to utilise these services by:
(a)
activating the Spam/Virus Services via its web
hosting account Personal Control Panel; or
(b)
sending an email to
support@domainregistration.com.au requesting that all email sent to its domain
be scanned for viruses by the Spam/Virus Services.
2.16 Use of the Spam/Virus Services is subject to
the Spam/Virus Service's Owner's terms and conditions located at http://www.4psa.com/company/terms.php
3 The Customer Content; Acceptable Use
3.1 Customer Content
3.1.1 The Customer hereby grants DNRA
a limited, non-exclusive, royalty-free, non-sublicensable license to host,
reproduce, transmit, cache, store, exhibit, publish, display, distribute,
perform, edit, adapt, modify, create derivative works from, and otherwise use
the Customer Content solely as necessary to provide the Services for the
Customer. "Customer Content"
means all materials, code, data, text (whether or not perceptible by users),
metatags, multimedia information (including, but not limited to sound, data,
audio, video, graphics, photographs, or artwork), the Customer Domain(s),
e-mail, chat room content, bulletin board postings, or any other items or
materials of the Customer or any third party that are provided or permitted by
the Customer to reside on DNRA's Systems. The Customer owns all copyright in
the Customer Content within the scope of the Copyright Act 1968 (Cth).
3.1.2 The Customer shall be solely
responsible for all Customer Content, including, without limitation, any
content or materials of a third party that the Customer permits or enables to
be posted onto or through DNRA's Systems. Subject to the terms of this
Agreement, the Customer shall (a) be solely responsible for the creation,
posting, updating and maintenance of the Customer Content; and (b) manage,
renew, create, delete, edit, maintaining and otherwise control the editorial
content of the Customer Content. DNRA will not be responsible for reviewing the
Customer Content prior to its posting by the Customer. DNRA will not be
responsible for keeping and maintaining a current version of the Customer
Content. The Customer shall be entirely responsible for obtaining any insurance
in relation to any loss or damage caused to the Customer Content, or any other
of the Customer's data held in DNRA's Systems.
3.1.3 The Customer is responsible for
ensuring that the Customer Content will be "server ready" and
otherwise remain fully compatible with DNRA's Systems (including all software
and operating systems). The Customer acknowledges that it is responsible for
having the necessary knowledge and expertise to maintain the Customer Content
on DNRA's Systems. DNRA reserves the right to remove any the Customer Content
that is not compatible with DNRA's Systems. Upon request from the Customer, and
at the Customer's sole expense, DNRA may assist the Customer in resolving any
compatibility problems on a time and materials basis.
3.2 Acceptable Use
3.2.1 The Customer shall at all times adhere
to all applicable laws, rules and regulations and to DNRA'S then current
Acceptable Use Policy as set out herein as Schedule A. Any breach of this Policy by the Customer
will entitle DNRA to elect to terminate this Agreement, without notice to the
Customer.
3.2.2 DNRA may inspect the Customer
Content or investigate any alleged violation of this Agreement, DNRA's policies
or any third-party complaints. DNRA will not access or review the contents of
any e-mail or other stored electronic communications except as required or
permitted by applicable law or legal process. In the event that DNRA determines
in its sole and reasonable discretion that any the Customer Content or conduct
or actions of the Customer (including its employees and users) are
objectionable, unlawful, potentially infringing or otherwise violate this
Agreement, the Acceptable Use Policy, or other applicable policy, DNRA may take
any action that it deems appropriate and reasonable under the circumstance to
protect its systems, facilities, the Customers and/or third parties. Such
corrective action includes, but is not limited to: (a) issuing a warning; (b)
immediately suspending or terminating the Services; (c) restricting or
prohibiting access to any the Customer Content that is objectionable or
otherwise violates this Agreement or applicable policy; and/or (d) disabling or
removing hypertext links, the Customer Content or the content of any third
party from DNRA's Systems. In the event DNRA takes corrective action, DNRA
shall not refund any fees paid in advance of such corrective action. Without
limiting the foregoing, it is DNRA's policy to terminate its services for
repeated violations of DNRA's Acceptable Use Policy. The Customer agrees that
DNRA is not liable for any defamatory or illegal content or any content
contrary to DNRAS' Acceptable Use Policy. The Customer warrants to indemnify
DNRA for any and all liability, damages, awards of costs (on an indemnity basis
or otherwise), legal costs (on a solicitor-client basis) and disbursements
(including barristers' fees) arising by way of the provision of DNRA's Services
and Systems to the Customer resulting in the perpetuation of any defamatory
material, or the infringement of any third parties' intellectual property
rights, or the breach of any other law of Australia or elsewhere (as
applicable) as a result of the Customer Content.
3.2.3 To comply with applicable laws
and lawful governmental requests, to protect DNRA's Systems and DNRA's
Customers, or to ensure the integrity and operation of DNRA's business and
systems, DNRA may access and disclose any information it considers necessary or
appropriate, including, without limitation, user profile information (ie. name,
e-mail address, etc.), IP addressing and traffic information, usage history,
and the Customer Content residing on DNRA's Systems.
4
Fees and Payment Terms
4.1 The Customer agrees to pay to DNRA's then current
set up and service fees in accordance with the Service Options and any and all
costs and expenses incurred by DNRA in connection with the Services provided to
the Customer by DNRA under this Agreement. For billing purposes, the service
start date will be the date of the order. The Customer will be billed for (a)
any setup fees; and (b) the annual fee for the Services at the rates and
charges set out on the DNRA Web site at www.domainregistration.com.au.
Henceforth, the Customer will be sent a renewal notice annually 30 days prior
to the anniversary of the order. If the renewal fee is not paid by the
anniversary of the order, the Services will be cancelled and the Customers web
content and MX records deleted without notice.
4.2 All fees shall be payable within 14 days of issue
of any invoice. All fees, including recurring fees, will be charged to the
Customer's credit card of record unless other arrangements have been
specifically approved by DNRA at DNRA's sole discretion. For billing purposes,
fractions of units shall be rounded up. All charges are considered valid unless
disputed in writing within 30 days of the invoice date. The Customer agrees to
pay all federal, state, and local sales, use, value added, excise, duty and any
other taxes assessed with respect to the Services provided to the Customer,
other than taxes based on DNRA’s net income. The Customer's failure to fully
pay any fees and taxes on the applicable due date will be deemed a breach of
this Agreement, justifying DNRA's suspension of its performance of the Services
(including all e-mail and the deletion of the Customer Content) and, in DNRA's
sole discretion, termination of this Agreement. Accounts in default are subject
to an interest charge on the outstanding balance equal to the lesser of 10% per
month or the maximum rate permitted by law. Any termination by DNRA for the
Customer's failure to pay will not relieve the Customer from paying past due
fees plus interest. In the event of collection enforcement, the Customer shall
be liable for any costs associated with such collection, including, but not
limited to, reasonable attorneys’ fees, court costs and collection agency fees.
5
Term of Service
5.1 The Agreement shall remain in full force and effect
until terminated by either party. Either party may terminate this Agreement for
any reason by providing the other party 7 days prior written notice; provided
that, DNRA may immediately terminate or suspend the Services and this Agreement
upon written notice for the Customer's or its users' violation of the Acceptable Use Policy. Upon any termination of this Agreement, DNRA
will not refund, and the Customer is not eligible for, any remaining portion of
any annual fee that already has been charged.
5.2 Should this Agreement be
terminated for any reason, DNRA will not be liable to the Customer because of
such termination for compensation, reimbursement or damages on account of the
loss of prospective profits, anticipated sales, goodwill or on account of
expenditures, investments, leases or commitments in connection with the
Customer's business, or for any other reason whatsoever flowing from such
termination. The Customer is solely responsible for procuring any new or replacement
service upon termination. Any termination of this Agreement shall not relieve
the Customer of any obligations to pay fees and costs accrued prior to the
termination date and any other amounts owed by the Customer to DNRA as provided
in this Agreement. Upon termination of this Agreement, the following sections
shall survive and remain in effect in accordance with their terms: Sections 5.2
and 6 to 11 inclusive.
6
Reservation of Rights
DNRA is the exclusive
owner of and retains all right, title and interest (including, but not limited
to, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights thereto (collectively, "Proprietary Rights")) to all materials, including but not
limited to any computer software (in object code and source code form), data or
information developed or provided by DNRA or its suppliers pursuant to this
Agreement, and any know-how, methodologies, equipment, or processes used by
DNRA to provide the Services to the Customer. The Customer is the exclusive
owner of and retains all right, title and interest (including all Proprietary
Rights) to the Customer Content. Note that DNRA does not guarantee retention of
the Customer Content beyond 30 days after termination.
7 Warranties and Representations
7.1 The Customer represents, warrants and covenants to
DNRA that: (a) the Customer Content or its use shall not violate,
misappropriate or infringe any Proprietary Rights or any other personal,
privacy or moral right arising under the laws of any jurisdiction of any person
or entity, nor shall same constitute a libel or defamation of any person or
entity; (b) the Customer Content will not contain any harmful components,
including, but not limited to, viruses, trap doors, hidden sequences, hot keys,
or time bombs; (c) the Customer has all right, power and authority necessary to
enter into this Agreement and use the Customer Content as described herein; and
(d) the Customer shall comply with all applicable laws, rules and regulations
(including, but not limited to, export control, decency, privacy and
intellectual property laws).
7.2 DNRA exercises no control over, and accepts no
responsibility for, third-party content of the information passing through
DNRA's System, network hubs and points of presence, or the Internet. The
Customer acknowledges that DNRA's systems (including any software and any other
items used or provided by DNRA in connection with any services hereunder) are
provided as represented at the execution of this Agreement. DNRA does not make
any representations or warranties of any kind, express or implied, with respect
to the performance of the services (including the DNS services therein) or
DNRA's systems, including, but not limited to, any implied warranty of
merchantability, fitness for a particular purpose, or non-infringement or any
implied warranty arising by usage of trade, course of dealing or course of
performance. DNRA makes no representations or warranties whatsoever that the
services and DNRA's systems will be uninterrupted, always accessible, free of
harmful components, accurate or error-free.
8
Limitation of Liability
DNRA shall have no
liability for any consequential, exemplary, special, incidental, or punitive
damages even if DNRA has been advised of the possibility of such damages. In no
event shall DNRA have any liability for unauthorised access to, or alteration,
theft or destruction of information distributed or made available for
distribution via the services through accident, fraudulent means or devices
(including , without limitation, viruses, Trojan horses, worms, time bombs,
cancelbots or any other computer programming routines that may damage,
interfere with, surreptitiously intercept or expropriate any system, program,
data or personal information) . The total liability of DNRA to the Customer for
any reason and upon any cause of action shall be limited to the amount actually
paid to DNRA by the Customer under this Agreement during the 12 months
immediately preceding the date on which such claim arose. This limitation applies
to all causes of action in the aggregate, including, but not limited to, breach
of contract, breach of warranty, negligence, strict liability,
misrepresentations, and other torts. The fees for the services set by DNRA
hereunder have been and will continue to be based upon this allocation of risk.
The Customer will have
access to a variety of third party sources of content through the use of the
Web site and the Internet. DNRA has
made no effort to verify the accuracy of suitability of any information contained
in any such sources, including, without limitation, any other web site that the
Customer can link to from the Web site.
Accordingly DNRA has no liability or responsibility whatsoever for any
content provided by any other person contained on or available through the Web
site. The Customer acknowledges and
agrees that any access, use or reliance on any such third party content is at
the Customer's own risk. The Customer
acknowledges that, except for information, products or services clearly identified
as being supplied by DNRA, DNRA does not operate, control or endorse any
information, products or services of any other person on the Web site or the
Internet in any way. The Customer also
acknowledges and agrees that DNRA does not guarantee or warrant that files
available for downloading from the Web site or through the Internet will be
free of infection or viruses, worms, Trojan horses or other malicious code that
may adversely effect the Customer, the Customer's computer or computer systems
or the customer's data or files.
9
Indemnification
The Customer will
indemnify, hold harmless, and defend DNRA and all employees, officers,
directors and agents of DNRA and any of its affiliates from and against any and
all claims, suits, actions, demands or proceedings (whether threatened,
asserted, or filed) and all related damages, losses, liabilities, cost and
expenses (including, but not limited to, reasonable attorneys' fees) arising
out of or relating to: (a) any violation or breach by the Customer of any term,
representation or warranty, or policy of this Agreement; (b) the Customer's
unlawful or improper use of the Services; (c) any damages caused to DNRA's
Systems by the Customer Content; (d) any actual or alleged violation of any
Proprietary Rights or non-proprietary rights (including, but not limited to,
defamation, libel, rights of privacy or publicity) by the Customer Content.
10
ARCHIVING OF DATA
DNRA will archive the
Customer's data onto backup mechanisms on a regular basis for the purposes of
disaster recovery. In the event of
equipment failure or data corruption, DNRA will restore from the last known
good archive. In the event of
corruption of all of DNRA's archives, or in the event that an old archive is
used to restore data, the Customer should be prepared to upload its data to its
web site. DNRA will not be liable for
incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered
from DNRA backups.
11 Miscellaneous
11.1 This Agreement is
governed by the law applicable in the State of Victoria in Australia. The Customer and DNRA agree to irrevocably
and unconditionally submit to the non-exclusive jurisdiction of the courts of
the State of Victoria.
11.2 The Customer agrees that, unless other
instructions are posted on DNRA’s web site, any notices required to be given
under this Agreement will be deemed to have been given if delivered by email or
fax, or sent by certified mail return receipt requested, in accordance with the
most current contact information the Customer has provided to DNRA and the
contact information for DNRA posted on DNRA’s web site. All notices shall be
effective upon receipt, except that email and fax notices shall be effective
upon transmission. Any failure by the Customer to update the Customer's e-mail
address will not invalidate this provision. The Customer is solely responsible
for ensuring that its Customer's contact details are current and correct, that
its email services is operational and that it checks its emails regularly. The
Customer must inform DNRA of any changes to its contact details by email to
info@domainregistration.com.au as soon as possible. If DNRA sends an email to
the Customer's current email address as listed in the Customer's contact
details, the Customer is deemed to have received that email and DNRA is not
obliged to take any further action to confirm that the Customer has received,
opened and/or read the email unless the Customer promptly notifies DNRA that
the email was not delivered to its email address. If DNRA receives an automated
email non-delivery notification indicating that the Customer has not received
the email that DNRA has sent the Customer regarding the Services, DNRA will use
reasonable endeavours to attempt to contact the Customer using the other
contact details the Customer submitted, including non-electronic means, but
does not guarantee that DNRA will be able to contact the Customer.
11.3 Words or expressions used in this clause 11.3
which are defined in the A New Tax System
(Goods and Services Tax) Act 1999 (Cth) or, if not so defined, then which
are defined in the Trade Practices Act
1974 (Cth), have the same meaning in this clause.
For the purposes of this
Agreement where the expression GST
inclusive is used in relation to an amount payable or other consideration
to be provided for a supply under this Agreement, the amount or consideration
will not be increased on account of any GST payable on that supply.
Any consideration to be paid or
provided for a supply made under or in connection with this Agreement, unless
specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
Despite any other provision in
this Agreement, if DNRA makes a supply under or in connection with this
Agreement on which GST is imposed (not being a supply the consideration for
which is specifically described in this Agreement as GST inclusive):
(a)
the consideration payable or to be provided for
that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased
by, and the Customer must also pay to DNRA, an amount equal to the GST payable
by the DNRA on that supply; and
(b)
the amount by which the GST exclusive consideration
is increased must be paid to DNRA by the Customer without set off, deduction or
requirement for demand, at the same time as the GST exclusive consideration is
payable or to be provided.
If a payment to the Customer
under this Agreement is a reimbursement or indemnification, calculated by
reference to a loss, cost or expense incurred by the Customer, then the payment
will be reduced by the amount of any input tax credit to which the Customer are
entitled for that loss, cost or expense.
DNRA, having regard to Part VB
of the Trade Practices Act 1974
(Cth), may refund to the Customer part or all of any amount paid by the
Customer under this Agreement during the New Tax System transition period, the
amount of the refund to be determined in the sole discretion of DNRA.
DNRA will provide a tax invoice.
If the Customer objects to the
amount of any refund or adjustment determined by DNRA under this clause, the
Customer and DNRA will negotiate in good faith in an attempt to agree on the
amount of the refund or adjustment. If
the Customer and DNRA cannot agree on the amount of the refund or adjustment,
then the refund or adjustment must be determined by a person:
(a)
who has at least 10 years experience as a lawyer;
(b)
who is appointed by the parties but if the parties
cannot agree who to appoint within 28 days after one of them notifies the other
that it requires a person to be appointed for the purposes of this clause, then
that person is to be nominated at the request of either of the parties by the
President of the Victorian Law Society or by the President's nominee;
(c)
who the Customer and DRNA must instruct to give a
written decision with reasons;
(d)
who acts as an expert and not as an arbitrator;
(e)
whose decision except in the case of obvious error
is final and binding; and
(f)
whose cost the Customer and DNRA must bear equally.
Pending that person's
determination, the parties must continue to comply with this Agreement,
including, without limitation, making all payments provided for under this
Agreement.
Any information given to the
expert by DNRA including, without limitation, confidential information, is for
the use of the expert only and under no circumstances (except if required by
law) is the information to be disclosed.
11.4 If the Customer are entitled to obtain an
Australian Business Number (ABN)
under the A New Tax System (Australian
Business Number) Act 1999 (Cth) the Customer:
(a)
warrant that the Customer have an ABN and have
provided the applicable registration number to DNRA; and
(b)
must:
(i) continue
to have an ABN during the term of this Agreement;
(ii) quote
its ABN to DNRA;
(iii) advise
DNRA if its ABN changes or is cancelled; and
(iv) indemnify
DNRA for any loss or damage suffered by DNRA or any tax, charge, fine, penalty
or other impost which DNRA incurs or becomes liable to pay, as a result of its
breach of any of the warranties contained in this clause.
11.5 Increased costs
(a)
To the extent that any supply by DNRA under this
Agreement is input taxed (input tax
supply), DNRA is entitled to increase:
(i) any
amount expressed as payable; and
(ii) anything
else to be provided,
by the Customer for that input
tax supply otherwise under or in connection with this agreement (consideration for the input tax supply)
by:
(iii) such
amount as DNRA determines in its discretion is reasonably necessary for DNRA to
recover from the Customer (in addition to the consideration for the input tax
supply) the amount of the input tax credits in relation to acquisitions made by
DNRA and used by it wholly or partly in making the input tax supply, to which
DNRA would have been entitled had the input tax supply been a taxable supply by
DNRA; or
(iv) such
lesser amount as DNRA determines.
(b)
DNRA may make a determination under clause
11.5(a)(iii) above or 11.5(a)(iv) above by notice in writing to the Customer (DNRA determination) and each DNRA
determination will be conclusive evidence of the making of the
determination. The amount specified in
any DNRA determination must be paid by the Customer immediately on receipt of
the DNRA determination without objection and without any set off or deduction
of any other amount payable under this Agreement.
11.6 Waiver of any provision of or right
under this Agreement:
(a)
must be in writing signed by the party entitled to
the benefit of that provision or right; and
(b)
is effective only to the extent set out in any
written waiver.
11.7 In this agreement, except where the context
otherwise requires:
(a)
the singular includes the plural and vice versa,
and a gender includes other genders;
(b)
another grammatical form of a defined word or
expression has a corresponding meaning;
(c)
a reference to a document or instrument includes
the document or instrument as novated, altered, supplemented or replaced from
time to time;
(d)
a reference to $
is to Australian currency;
(e)
a reference to time is to Australian eastern
standard time;
(f)
a reference to a party is to a party to this
agreement, and a reference to a party to a document includes the party's
executors, administrators, successors and permitted assigns and substitutes;
(g)
a reference to a person includes a natural person,
partnership, body corporate, association, governmental or local authority or
agency or other entity;
(h)
a reference to a statute, ordinance, code or other
law includes regulations and other instruments under it and consolidations,
amendments, re‑enactments or replacements of any of them;
(i)
a word or expression defined in the Corporations
Act has the meaning given to it in the Corporations Act;
(j)
the meaning of general words is not limited by
specific examples introduced by including,
for example or similar expressions;
(k)
any agreement, representation, warranty or
indemnity by two or more parties (including where two or more persons are
included in the same defined term) binds them jointly and severally;
(l)
any agreement, representation, warranty or
indemnity in favour of two or more parties (including where two or more persons
are included in the same defined term) is for the benefit of them jointly and
severally;
(m) a
rule of construction does not apply to the disadvantage of a party because the
party was responsible for the preparation of this agreement or any part of it;
and
(n)
if a day on or by which an obligation must be performed
or an event must occur is not a business day, the obligation must be performed
or the event must occur on or by the next business day.
If the Customer has any
questions relating to this Agreement, it may contact DNRA at
info@domainregistration.com.au.
SCHEDULE
A: ACCEPTABLE USE POLICY
This Acceptable Use Policy (the "Policy") describes the proper
kinds of conduct and prohibited uses of the hosting and e-mail services (the
"Services") provided by
DNRA. The Policy forms part of the
Agreement. This Policy is not exhaustive and DNRA reserves the right to modify
it at any time, effective upon posting of the modified version at http://www.domainregistration.com.au/policies or such other location designated by DNRA.
By using DNRA's Services, you agree to abide by the then current version of
this Policy.
Any violation of this policy may result in the
suspension or termination of the services and such action as DNRA deems
appropriate as further described in the hosting Agreement. Any repeated
violation of this policy will result in the termination of the hosting
Agreement. Indirect or attempted violations of this policy, and actual or
attempted violations by a third party on your behalf, shall be considered
violations of the Policy by you.
General
DNRA's Services enable you to host and serve your
Web site and all related content, including, but not limited to, programs,
program scripts, e-mail, text, bulletin board postings, hypertext links, meta
tags, domain names, pictures, graphics, forums, interactive media, and
audio/visual materials that you or a third party (collectively, "Customer Content") posts on your
Web site or other equipment, servers, software and network of DNRA
(collectively, "DNRA's Systems").
Generally, DNRA does not actively monitor, censor, or directly control any
information that is stored on or transmitted over DNRA's Systems. DNRA cannot
and does not warrant, verify or guarantee the quality, accuracy, safety or
integrity of your Customer Content or other materials or information that you
or a third party may post or access through the Services. You are solely
responsible for all of the Customer Content and your and your users' use of
DNRA's Services and your Web site.
No
Illegal or Harmful Uses
DNRA's Services and Systems may be used only for
lawful purposes. Transmission, distribution or storage of any material or any
activity in violation of any applicable law or regulation, including but not
limited to gambling, are strictly prohibited. The following non-exhaustive list
describes the kinds of illegal or harmful conduct that are prohibited. DNRA
reserves the right to restrict or prohibit any and all uses or content that it
determines in its sole discretion is harmful to its systems, network,
reputation, good will, other DNRA Customers, or any third party.
Excessive Use of Server Resources.
The use of programs and scripts that cause excessive stress to servers
including, without limitation, chat scripts is prohibited on shared server
accounts. This is due to the resultant reduction in resources and deterioration
of service for other the Customers on the same shared server. Such programs and
scripts may only be used with dedicated server accounts. Additionally,
excessive use and/or violation of bandwidth/storage maximums are prohibited on
all web hosting accounts. Determination of excessive use is at DNRA's sole
discretion.
Infringement.
Infringement of intellectual property rights or other proprietary rights
including, without limitation, material protected by copyright, trade mark,
patent, trade secret or other intellectual property right used without proper
authorisation. Infringement may result from the unauthorised copying and
posting of pictures, photographs, logos, registered or unregistered trade
marks, software, articles, musical works, and videos.
Illegal Materials.
Disseminating or hosting material that is, without limitation, unlawful,
obscene, harmful, invasive of privacy or publicity rights, abusive, or otherwise
objectionable, under the laws of any jurisdiction.
Harmful Content.
Disseminating or hosting harmful content or software including, without
limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other
computer programming routines that may damage, interfere with, surreptitiously
intercept or expropriate any system, program, data or personal information
including the Services.
Fraudulent Conduct.
Offering or disseminating fraudulent goods, services, schemes, activities (ie.
gambling) or promotions (ie. make money fast schemes, chain letters, and
pyramid schemes); fraudulent submission or use of personal or financial
information; or engaging in any practice that constitutes an unfair or
deceptive trade practice.
Privacy.
Collecting, using and disclosing any personally identifiable user information
in violation of any applicable law and/or stated privacy policy.
Maintenance
of Security and Integrity
Violations of system or network security are
prohibited, and may result in criminal and civil liability. DNRA will
investigate incidents involving such violations and may involve and will
cooperate with law enforcement if a criminal violation is suspected. Examples
of system or network security violations include, without limitation, the following:
Hacking.
Unauthorised access to or use of data, systems or networks, including any
attempt to probe, scan or test the vulnerability of a system or network or to
breach security or authentication measures without express authorisation of the
owner of the system or network.
Interception.
Unauthorised monitoring of data or traffic on any network or system of DNRA or
any third party.
Intentional Interference.
Interference with service to any user, host or network including, but not
limited to, denial of service attacks, mail bombing, news bombing, other
flooding techniques, deliberate attempts to overload a system and broadcast
attacks.
Falsification of Origin.
Forging of any TCP-IP packet header, e-mail header or any part of a message
header. This prohibition does not include the use of aliases or anonymous
remailers.
Avoiding System Restrictions.
Using manual or electronic means to modify usage details for billing reasons or
to avoid any use limitations placed on the Services such as access and storage
restrictions.
No
E-Mail Abuses
You may not distribute, publish, send or incite
unsolicited mass e-mailings, promotions, advertising, or solicitations (such as
"spam"), including, without limitation, commercial advertising,
informational announcements, and mail bombing. You may not use DNRA's mail
server or a third party mail server to relay mail without the express
permission of the account holder or the third party site. Posting the same or
similar message to one or more newsgroups (including, but not limited to, the
use of chain letters, excessive cross-postings or multiple-postings) is
explicitly prohibited.
No
Service Bureaus
You may not sell, assign, rent, transfer,
distribute, act as a service bureau, or grant rights in the Service to any
other person without the express prior written consent of DNRA.
The Customer shall at all times adhere to all
applicable laws, rules, and regulations and to DNRA's then current Acceptable
Use Policy (or such other location as DNRA may specify). In particular the Customer may not utilise
the Services:
(a)
in connection with any tortious or actionable
activity;
(b)
to publish or disseminate information that:
(i)
constitutes slander, libel or defamation;
(ii)
publicises the personal information or likeness of
a person without that person's consent; or
(iii)
otherwise violates the privacy rights of any
person; or
(c)
to threaten persons with bodily harm, to make
harassing or abusive statements or messages, or to solicit the performance of
acts or services that are illegal under applicable law;
(d)
in connection with any disruptive or abusive
activity;
(e)
to cause denial of service attacks against DNRA or
other network hosts or Internet users or to otherwise degrade or impair the
operation of DNRA's servers and facilities or the servers and facilities other
network hosts or Internet users;
(f)
to post messages or software programs that consume
excessive CPU time or storage space;
(g)
to offer mail services, mail forwarding
capabilities, POP accounts or autorecorders other than for the Customer's own
account;
(h)
to subvert, or assist others in subverting, the
security or integrity of any DNRA system, facility or equipment;
(i)
to gain unauthorised access to the computer
networks of DNRA or any other person;
(j)
to provide passwords or access codes to persons not
authorised to receive such materials by the operator of the system requiring
the password or access code;
(k)
to:
(i)
forge the signature or other identifying mark or
code of any other person;
(ii)
impersonate or assume the identity of any other
person; or
(iii)
engage in any other activity (including 'spoofing')
to attempt to deceive or mislead other persons regarding the true identity of
the Customer (excluding the use of anonymous remailers or Internet nicknames);
(l)
to conduct port scans or other invasive procedures
against any server (except any server for which the Customer is an authorised
system administrator);
(m)
to distribute, advertise or promote software or
services that have the primary purpose of encouraging or facilitating
unsolicited commercial email or spam;
(n)
in any manner that might subject DNRA to
unfavourable regulatory action, subject DNRA to any liability for any reason,
or adversely affect DNRA's public image, reputation or goodwill, including,
without limitation, sending or distributing sexually explicit, hateful, vulgar,
racially, ethnically or otherwise objectionable materials as determined by DNRA
in its sole discretion; or
(o)
in any other manner to interrupt or interfere with
the Internet usage of other persons.
Enforcement
by DNRA
DNRA reserves the right, but does not assume the
obligation, to investigate any violation of this Policy or misuse of DNRA's
Systems. As described in the Hosting Agreement, DNRA reserves the right and has
absolute discretion to (a) enforce this Policy and the terms of the Hosting
Agreement and (b) remove or disable access, screen or edit any Customer Content
that violates these provisions or is otherwise objectionable. Without
limitation, DNRA also reserves the right to report any activity (including the
disclosure of appropriate Customer information) that it suspects violates any
law or regulation to appropriate law enforcement officials, regulators, or
other appropriate third parties. DNRA also may without limitation cooperate
with appropriate law enforcement agencies to assist in the investigation and
prosecution of any illegal conduct or infringement of any third party's legal
rights by providing network and systems information related to allegedly
illegal, harmful, infringing or objectionable content. DNRA reserves all rights to identify the
Customer by its IP address to third parties within the scope of the Privacy Act 1988 (Cth) and the Information Privacy Act 2000 (Vic.).
