- Services.
Subject to the terms of this Agreement, and contingent on Customer's
satisfaction of Web Dev Plus's credit approval requirements, Web Dev Plus agrees to
provide the web hosting services described in the Order for the fees
stated in the Order.
- Term.
The initial service term of the Agreement shall begin on
the date that Web Dev Plus generates an e-mail message to Customer
announcing the activation of the Customer's account (the "Service
Commencement Date") and shall continue for 12 months stated in the Order (the
"Initial Term"). Upon expiration of the Initial Term, this Agreement
shall automatically renew for the renewal terms of the same length as
the Initial Term (each a "Renewal Term") unless the Customer provides
Web Dev Plus with written notice of non-renewal at least fifteen (15) days
prior to the expiration of the Initial Term or then-current Renewal
Term, as applicable. The Initial Term and any Renewal Term may be
referred to collectively in this Agreement as the "Term."
- Payments.
Fees are payable in advance for the coming 12
month period.
- Funds.
Payments must be made in Australian dollars. Customer is
responsible for providing Web Dev Plus with changes to billing information
(such as credit card expiration, change in billing address) At its
option, Web Dev Plus may accrue charges to be made to a credit/debit card
until such charges exceed $10.00. Web Dev Plus may charge interest on
overdue amounts at the lesser of 1.5% per month or the maximum
non-usurious rate under applicable law. Web Dev Plus may suspend the service
without notice if payment for the service is overdue. Fees not
disputed within seven (7) days of due date are conclusively deemed
accurate. Customer agrees to pay Web Dev Plus's reasonable reinstatement fee
following a suspension of service for non-payment, and to pay Web Dev Plus's
reasonable costs of collection of overdue amounts, including
collection agency fees, attorney fees and court costs.
- Fee Increases.
Web Dev Plus may increase its fees for services effective the first day
of a Renewal Term by giving notice to Customer of the new fees at
least seven (7) days prior to the beginning of the Renewal Term, and
if Customer does not give a notice of non-renewal as provided in
Section 2 above, the Customer shall be deemed to have accepted the new
fee for that Renewal Term and any subsequent Renewal Terms (unless the
fees are increased in the same manner for a subsequent Renewal
Term).
- Taxes.
At Web Dev Plus's request Customer shall remit to Web Dev Plus all sales, GST
or similar tax imposed on the provision of the services (but not in
the nature of an income tax on Web Dev Plus), regardless of whether Web Dev Plus
fails to collect the tax at the time the related services are
provided.
- Early Termination.
Customer acknowledges that the amount of the fee for the service is
based on Customer's agreement to pay the fee for the entire Initial
Term, or Renewal Term, as applicable. In the event Web Dev Plus terminates
the Agreement for Customer's breach of the Agreement in accordance
with Section 9 (Termination), or Customer terminates the service other
than in accordance with Section 9 (Termination) for Web Dev Plus's breach,
the unpaid fees for each billing cycle remaining in the Initial Term
or then-current Renewal Term, as applicable, are due on the business
day following termination of the Agreement.
- Law/AUP.
Customer agrees to use the service in compliance
with applicable law and Web Dev Plus's Acceptable
Usage Policy (the "AUP"),
which is hereby incorporated by reference in this
Agreement. Customer agrees that Web Dev Plus may, in its reasonable commercial
judgment consistent with industry standards, amend the AUP from time to
time to further detail or describe reasonable restrictions and
conditions on Customer's use of the Services. Amendments to the AUP are
effective on the earlier of Web Dev Plus's notice to Customer that an
amendment has been made, or the first day of any Renewal Term that
begins subsequent to the amendment. Customer agrees to cooperate with
Web Dev Plus's reasonable investigation of any suspected violation of the AUP.
In the event of a dispute between Web Dev Plus and Customer regarding the
interpretation of the AUP, Web Dev Plus's commercially reasonable
interpretation of the AUP shall govern.
- Customer Information.
Customer represents and warrants to Web Dev Plus that the information he,
she or it has provided and will provide to Web Dev Plus for purposes of
establishing and maintaining the service is accurate. If Customer is an
individual, Customer represents and warrants to Web Dev Plus that he or she is
at least 18 years of age. Web Dev Plus may ONLY rely on the instructions of
the person listed as the Primary Customer Contact on the Order with
regard to Customer's account until Customer has provided a written
notice changing the Primary Customer Contact.
- Indemnification.
Customer agrees to indemnify and hold harmless Web Dev Plus, Web Dev Plus's
affiliates, and each of their respective officers, directors, agents,
and employees from and against any and all claims, demands, liabilities,
obligations, losses, damages, penalties, fines, punitive damages,
amounts in interest, expenses and disbursements of any kind and nature
whatsoever (including reasonable attorneys fees) brought by a third
party under any theory of legal liability arising out of or related to
the actual or alleged use of Customer's services in violation of
applicable law or the AUP by Customer or any person using Customer's log
on information, regardless of whether such person has been authorized to
use the services by Customer.
- Disclaimer of Warranties.
Web Dev Plus does not warrant or represent that the services will be
uniterrupted, error-free or completly secure. To the extent permitted by
applicable law Web Dev Plus disclaims and all warranties incuding the implied
warranties of merchantability, fitness ofr a particular purpose and
noninfringment. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES
ARE PROVIDED ON AN "AS IS" BASIS.
- Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR
DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE
USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT,
EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY
OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE
MAXIMUM AGGREGATE LIABILITY OF Web Dev Plus AND ANY OF ITS EMPLOYEES, AGENTS
OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT,
TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY
NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF
SERVICE.
- Suspension/Termination.
- Suspension of Service.
Customer agrees that Web Dev Plus may suspend services to Customer
without notice and without liability if: (i) Web Dev Plus reasonably
believes that the services are being used in violation of the AUP;
(ii) Customer fails to cooperate with any reasonable investigation of
any suspected violation of the AUP; (iii) Web Dev Plus reasonably believes
that the suspension of service is necessary to protect its network or
its other customers, or (iv) as requested by a law enforcement or
regulatory agency. Customer shall pay Web Dev Plus's reasonable
reinstatement fee if service is reinstituted following a suspension of
service under this subsection.
- Termination.
The Agreement may be terminated by Customer
prior to the expiration of the Initial Term or any Renewal Term
without further notice and without liability if Web Dev Plus fails
in a material way to provide the service in accordance with the
terms of the Agreement and does not cure the failure within seven (7) days
of Customer's written notice describing the failure in reasonable detail. The Agreement
may be terminated by Web Dev Plus prior to the expiration
of the Initial Term or any Renewal Term without further
notice and without liability as follows: (i) upon ten (10) days notice if Customer
is overdue on the payment of any amount due under
the Agreement; (ii) Customer materially violates any other provision of the Agreement, including
the AUP, and fails to cure the violation within thirty
(30) days of a written notice from Web Dev
Plus describing the violation in reasonable detail; (iii) upon one (1) days notice if
Customer's Service is used in violation of a material term of
the AUP more than once, or (iv) upon one (1) days notice
if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate
this agreement upon ten (10) days advance notice if the other
party admits insolvency, makes an assignment for the benefit
of its creditors, files for bankruptcy or similar protection, is unable to
pay debts as they become due, has a trustee or
receiver appointed over all or a substantial portion of its assets, or
enters into an agreement for the extension or readjustment of all or substantially
all of its obligations. No credits will be issued for services billed
if the customer cancels service within the 12 months billing
period.
- Requests for Customer Information.
Customer agrees that Web Dev Plus may, without notice to Customer, (i)
report to the appropriate authorities any conduct by Customer or any of
Customer's customers or end users that Web Dev Plus believes violates
applicable law, and (ii) provide any information that it has about
Customer or any of its customers or end users in response to a formal or
informal request from a law enforcement or regulatory agency or in
response to a formal request in a civil action that on its face meets
the requirements for such a request.
- Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by
Web Dev Plus nothwithstanding any agreement by Web Dev Plus to provide back up
services.
- Changes to the Web Dev Plus Network.
Upgrades and other changes in Web Dev Plus's network, including, but not
limited to changes in its software, hardware, and service providers, may
affect the display or operation of Customer's hosted content and/or
applications. Web Dev Plus reserves the right to change its network in its
commercially reasonable discretion, and Web Dev Plus shall not be liable for
any resulting harm to Customer.
- Notices.
Notices to Web Dev Plus under the Agreement
shall be given via electronic mail to the e-mail address posted for
customer support on http://www.webdevplus.com.au/contact.htm
Notices to Customer shall be given via
electronic mail to the individual listed as the Primary Customer Contact
on the Order. Notices are deemed received on the day transmitted, or if
that day is not a business day, on the first business day following the
day delivered. Customer may change his, her or its notice address by a
notice given in accordance with this Section.
- Obligations.
Web Dev Plus shall not be in default of any obligation under the Agreement
if the failure to perform the obligation is due to any event beyond
Web Dev Plus's control, including, without limitation, significant failure of
a portion of the power grid, significant failure of the Internet,
natural disaster, war, riot, insurrection, epidemic, strikes or other
organized labor action, terrorist activity, or other events of a
magnitude or type for which precautions are not generally taken in the
industry.
- Governing Law/Disputes.
The Agreement shall be governed by the laws of NSW, exclusive of its
choice of law principles, and the laws of Australia, as applicable. The
Agreement shall not be governed by the United Nations Convention on the
International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING
OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL
COURTS of Sydney/NSW AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL
JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
- Miscellaneous.
Each party acknowledges and agrees that the other party retains
exclusive ownership and rights in its trademarks, service marks, trade
secrets, inventions, copyrights, and other intellectual property.
Neither party may use the other party's name or trade mark without the
other party's prior written consent. The parties intend for their
relationship to be that of independent contractors and not a
partnership, joint venture, or employer/employee. Neither party will
represent itself to be agent of the other. Each party acknowledges that
it has no power or authority to bind the other on any agreement and that
it will not represent to any person that it has such power or authority.
This Agreement may be amended only by a formal written agreement signed
by both parties. The terms on Customer's purchase order or other
business forms are not binding on Web Dev Plus unless they are expressly
incorporated into a formal written agreement signed by both parties. A
party's failure or delay in enforcing any provision of the Agreement
will not be deemed a waiver of that party's rights with respect to that
provision or any other provision of the Agreement. A party's waiver of
any of its right under the Agreement is not a waiver of any of its other
rights with respect to a prior, contemporaneous or future occurrence,
whether similar in nature or not. The captions in the Agreement are not
part of the Agreement, but are for the convenience of the parties. The
following provisions will survive expiration or termination of the
Agreement: Fees, indemnity obligations, provisions limiting liability
and disclaiming warranties, provisions regarding ownership of
intellectual property, these miscellaneous provisions, and other
provisions that by their nature are intended to survive termination of
the Agreement. There are no third party beneficiaries to the Agreement.
Neither insurers nor the customers of resellers are third party
beneficiaries to the Agreement. Customer may not transfer the Agreement
without Web Dev Plus's prior written consent. Web Dev Plus's approval for assignment
is contingent on the assignee meeting Web Dev Plus's credit approval criteria.
Web Dev Plus may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP
constitutes the complete and exclusive agreement between the parties
regarding its subject matter and supercedes and replace any prior
understanding or communication, written or
oral. |