Squiz

Hosting Services Terms and Conditions

1. Definitions and Interpretation

1.1 Definitions

(a) Confidential Information means in relation to a Party, information that:

(i) is by its nature confidential;

(ii) is designated by that Party as confidential; or

(iii) the other Party knows or ought to know is confidential.

(b) Content means any information, material, content or data of any postings, data or transmission utilizing the Hosting Services.

(c) Hosting Services means the services to be provided by Squiz to the Customer in accordance with these Terms and Conditions and as agreed upon between the parties

(d) Tax Invoice has the meaning given under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(e) User means Customer or any person or entity authorized by Customer to access and use the Hosting Services.

2. Term

2.1 Squiz will provide Hosting Services to the Customer in accordance with the Hosting Plan specified in the Work Order.

2.2 The initial term of the Agreement shall begin on the Effective Date as stated in the Agreement Details and continue for the duration of the Term of the Agreement.

2.3 The Agreement shall automatically renew for successive extended terms of three (3) calendar months until Squiz or Customer provides the other with three (3) calendar months advance written Notice of termination.

3. Charges

3.1 Charges

Squiz will invoice Customer in accordance with the Payment Plan specified in the Work Order. Customer must pay each of Squiz's invoices rendered in accordance with the Work Order within 14 days of the date of the invoice.

3.2 Disputed invoices

Where Customer disputes any invoice, Customer must pay the full amount of the invoice, and should the dispute be resolved in Customer's favour Squiz will reimburse the Customer the relevant amount.

3.3 Early termination

In the event this Agreement is terminated other than in accordance with clause 10 (Termination) all amounts which would have become due and payable under this Agreement had it continued in effect until the expiration of the term of this Agreement shall become immediately due and payable and Customer shall immediately pay such amounts.

4. Acceptable Use Policy

4.1 Sole Responsibility

Customer acknowledges and agrees that it is solely responsible for all Content or any other use of the hosting services by Customer or any User of the Hosting Service.

4.2 Acceptable Use Policy

Customer acknowledges that it has read Squiz’s Acceptable Use Policy published on its website at http://www.squiz.net/services/hosting/acceptable-use-policy and agrees and undertakes that it will at all time observe and comply with that Acceptable Use Policy, as amended from time to time by publishing on the website and providing Notice to Customer of amendment. Amendments to the Acceptable Use Policy are effective on the earlier of Squiz’s Notice to Customer that an amendment has been made, or the beginning of any extended term.

4.3 Removal of Offending Content

Customer acknowledges that Squiz has the right to remove without Notice to Customer any Content deemed by it to breach or offend its Acceptable Use Policy, or to suspend Services if in its sole opinion it deems Content to breach or offend its Acceptable Use Policy.

4.4 Indemnity

Customer agrees to and shall hold harmless and indemnify Squiz against any loss, expenses, liability, damages or claim made against it by any party whatsoever which Squiz may suffer directly, indirectly, resulting from or arising out of Customer’s or User’s breach of the Acceptable Use Policy or the misuse or abuse of the Hosting Services by Customer or any User.

5. Technical and Operational Limitations

5.1 System Security

Squiz shall take all reasonable measures required to maintain the integrity of the system and prevent intrusion. Customer acknowledges that such measures cannot be considered to provide a guaranteed security breach prevention solution.

5.2 Operating Systems

Customer acknowledges that the operating system and accompanying software are products of third party vendors and are not guaranteed in any way whatsoever by Squiz.

5.3 Hardware Limitations

Customer acknowledges that Hosting Services are subject to limitations by the hardware configuration agreed upon between Squiz and Customer and that Squiz will not be liable for a degradation in performance due to an increase of traffic or system usage that exceeds the performance threshold of such agreed hardware configuration.

5.4 Internet Traffic Flow

Customer acknowledges that Internet traffic flow from and to Squiz’s servers may be affected by events, including actions or inactions by third parties outside the control of Squiz and/or Customer, which may impair or disrupt Customer’s Internet gateway. Customer acknowledges and agrees that Squiz shall not be liable in any way for such events.

5.5 Backup

Squiz will create a backup copy of the Customer’s file system and database once every 24 hours while providing the Hosting Services. The backup copy is intended for disaster recovery purposes only and is overwritten every 24 hours by the new backup copy. Customer acknowledges that Squiz is not required to maintain any backups beyond this period unless otherwise stated in the Work Order.

5.6 Email

Customer acknowledges that Squiz’s email server is not purposed for use as a mail storage facility. Customer agrees to process and clear all bounce emails within 48 hours of the original email being sent and agrees to Squiz deleting bounce emails automatically after 48 hours of receipt by its servers.

6. Warranties

6.1 Exclusion of Warranties

Except as expressly provided in this Agreement, and to the maximum extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied by legislation, the common law, equity, trade, custom or usage or otherwise relating to the provision of the Hosting Services are hereby expressly excluded. If a warranty or condition implied by law is not effectively excluded by this provision, Squiz’s liability to Customer in respect of any breach of that warranty or condition is limited, at Squiz’s election, either to the resupply of the Hosting Services to Customer or the cost of resupply of the Hosting Services to the Customer.

7. Limitation of Liability

7.1 Limitation of Liability

The total aggregate liability of Squiz for all loss or damage in respect of all claims arising out of or in relation to this Agreement whether arising in tort (including negligence), contract, equity or otherwise shall be limited to five times the value of this Agreement. In no event will Squiz be liable or responsible to Customer for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort, strict liability or otherwise.

8. Confidentiality

8.1 Confidential Information

Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, any of the other party’s Confidential Information and will not disclose the other party’s Confidential Information, except:

(a) to employees, agents, contractors or advisers requiring the information for the purposes of this Agreement;

(b) with the consent of the other party;

(c) if required to do so by law or a stock exchange; or

(d) as strictly required in connection with legal proceedings relating to this Agreement.

9. Release of Information to Authorised Agencies.

9.1 Monitoring Use of Services

In order to comply with, and subject to, any applicable laws, including without limitation the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979, Squiz may at any time:

(a) When required by a warrant issued by an authorised agency or court, intercept or monitor Hosting Services, or enable another person authorised by a warrant issued by an authorised agency or court, to intercept or monitor Hosting Services, including data hosted on or being transmitted through Hosting Services;

(b) Monitor and/or examine use of Hosting Services, including email, records and other data in the course of installation, connection or routine maintenance of the Services, but only to the extent permitted by legislation;

(c) Suspend Hosting Services; and/or

(d) Release information obtained by any of these actions to any authorised governmental or other agency

9.2 Indemnity

Customer agrees to and shall hold harmless and indemnify Squiz against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a user or any party claiming through Customer) which Squiz may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 9.1

10. Termination

10.1 Termination by Customer

The Agreement may be terminated by Customer prior to the expiration of the Term of the Agreement without liability as follows:

(a) Squiz commits a material breach of the terms of this Agreement and fails to cure the breach within fourteen (14) days of written Notice from Customer describing the breach in reasonable detail; or

(b) Squiz commits an act of insolvency, comes under any form of insolvency administration, or assigns or purports to novate its rights otherwise than in accordance with this Agreement.

10.2 Termination by Squiz

The Agreement may be terminated by Squiz prior to the expiration of the Term of the Agreement without liability as follows:

(a) Customer commits a material breach of the terms of this Agreement and fails to cure the breach within fourteen (14) days of written Notice from Squiz describing the breach in reasonable detail;

(b) Upon fourteen (14) day’s written Notice, if the Customer is overdue on the payment of any amount due under the Agreement; or

(c) Upon reasonable Notice if Squiz is threatened with a legal claim for copyright or patent infringement related to the provision of the Hosting Service and is unable to modify the Hosting Service in a way that avoids an ongoing risk of liability.

10.3 Default due to events beyond control of parties

Each party will not be entitled to exercise any rights and remedies upon the default of the other party (whether at common law or pursuant to this Agreement) if that default is caused by any event beyond the reasonable control of the defaulting party and includes an event due to acts of war or terrorism, natural disasters or other events that happen independently of human intervention.

10.4 Ownership of Hardware

Unless otherwise stated in the Work Order, Squiz retains ownership of any hardware supplied for the purposes of providing the Hosting Services.

11. Suspension of Services

11.1 Events of suspension

Squiz may, in its sole discretion and without derogating from its right to terminate this Agreement pursuant to clause 10.2, at any time suspend, restrict or disconnect the supply of Hosting Services to the Customer on the occurrence of any of the following events:

(a) Customer fails to pay any outstanding invoices within seven (7) days of written demand by Squiz;

(b) Squiz is directed by any authorized government administrative, regulatory and/or law enforcement agency to do so; or

(c) Squiz deems it necessary for purposes of scheduled or unscheduled maintenance.

11.2 Indemnity

Customer agrees to and shall hold harmless and indemnify Squiz against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a user or any party claiming through Customer) which Squiz may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 11.1.

12. Indemnification

12.1 Indemnity

Subject to the provisions of this Agreement, each party shall at all times indemnify, hold harmless and defend the other from and against any loss or liability reasonably incurred or suffered by the indemnified arising from any suit, action or proceeding by any person against any of those indemnified where such loss or liability was caused by any wilful, unlawful or negligent act or omission of the other party, its employees, agents or sub-contractors in connection with this Agreement. A party’s liability to indemnify those indemnified under this clause 13.1 shall be reduced proportionately to the extent that any act or omission of those indemnified contributed to the loss.

12.2 Limit on indemnity

Any amounts payable under this clause, or for any other indemnity claim under this Agreement, will not exceed an amount equal to five times the value of this Agreement.

13. Dispute resolution

13.1 Notification

If a dispute arises (including a breach or an alleged breach) under this Agreement which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, a party concerned about the problem may notify the other. Management representatives of each of the parties will then endeavour in good faith to agree upon a resolution.

13.2 Mediation

Should the management representatives fail to reach a solution in accordance with clause 14.1 within five (5) days (or such other time frame agreed between the parties), the parties may agree to mediation. The mediation must be conducted in New South Wales. The Institute of Arbitrators Australia Rules for the Mediation of Commercial Disputes (Edition 2 - September 1995) as amended by this clause apply to the mediation. If the parties have not agreed upon the mediator and the mediator's remuneration within ten (10) Working Days:

(a) the mediator is the person appointed by the Australian Commercial Dispute Centre Limited; and

(b) the remuneration of the mediator is the amount or rate determined by the President of the New South Wales Law Society or the President's nominee, acting on the request of any party to the dispute. The parties must pay the mediator's remuneration in equal shares. Each party must pay its own costs of the mediation.

13.3 Continued Performance

Unless prevented by the nature of the dispute, the parties will continue to perform this Agreement while attempts are made to resolve the dispute. In circumstances where the dispute relates to payment and Squiz is required to continue to perform its obligations under this Agreement, the Customer will continue to pay Squiz any undisputed amounts.

14. General

14.1 Notice

A notice, approval, consent, instruction or other communication in connection with this Agreement:

(a) must be in writing;

(b) must be marked for the attention of the other party as specified in the Work Order; and

(c) must be left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the street address of the addressee or sent by facsimile to the facsimile number of the addressee or by email to the email address of the addressee which is specified in the Agreement Details or if the addressee notifies another street address or facsimile number or email address, then to that street address, facsimile number or email address.

14.2 No agency or partnership

Nothing in this Agreement constitutes either party as the agent, partner or joint venturer of the other.

14.3 Waiver and variation

The terms of this Agreement may not be varied either in law or inequity except in writing signed by both Customer and Squiz. A waiver by either party in respect of a breach of a provision of this Agreement by the other party does not operate as a waiver in respect of any other breach, and the failure of either party to enforce at any time a provision of this Agreement is not to be interpreted as a waiver of the provision.

14.4 Assignment and Novation

Neither party shall assign or novate the whole or part of this Agreement without the prior written consent of the other party which shall not be unreasonably withheld where the proposed assignee is capable of meeting the assignor’s obligations under the Agreement.

14.5 Entire Agreement

This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

14.6 Applicable law

This Agreement is governed by the law in force in the state of New South Wales. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

14.7 Counterparts

This Agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes an original of this Agreement, all of which together constitute one agreement.