Unless otherwise agreed in writing, the following terms apply to all services provided by Hostway Corporation Pty Ltd ACN 103 777 420 (we, us or our).


1. Services and Server

1.1 Service Level Policy
We will provide the Services in accordance with our Service Level Policy.

1.2 Continuing availability
We will use reasonable endeavours to provide continuing availability of the Services and the Server, but will not be liable for interruptions or down time of the Server.

1.3 No warranty
We do not warrant that the Services or the Server will be error free, virus free, uninterrupted or free from unauthorised use or hackers.

1.4 Website monitoring and technical support
We will not provide website monitoring and technical support unless:
(a) the relevant Services are Managed Services; or
(b) you expressly request that we do so (in which case charges may apply).

1.5 Unscheduled maintenance
You acknowledge that from time to time it may be necessary for us to perform unscheduled maintenance on the Server.

1.6 Scheduled maintenance
We will notify you by email of any scheduled maintenance that will require the Server to be offline for more than 30 minutes.

1.7 Passwords
You must keep secure any passwords we provide to you and notify us as soon as possible of any known or suspected unauthorised use of the Services or the Server.


2. Website content and compliance

2.1 Content
You must not publish on any website hosted by us any information or material which:
(a) is threatening, abusive, harmful, malicious, defamatory, violent, obscene, pornographic, profane or otherwise objectionable in any way; or
(b) infringes the Intellectual Property Rights of any third party.

2.2 Compliance with laws and Acceptable Use Policy
You must comply with:
(a) all relevant laws and regulations, including those laws and regulations relating to unsolicited commercial electronic messages and address-harvesting software; and
(b) our Acceptable Use Policy.

2.3 Compliance with directions
You must comply with our reasonable and lawful directions from time to time concerning the content of any website hosted by us, and matters of technology and software.

2.4 Failure to comply
If you fail to comply with any part of this clause 2, we may suspend the provision of the Services, including any Services in respect of which you are a reseller, until such time as you are fully compliant.


3. Co-location Services

3.1 Applicability
This clause 3 only applies if we provide you with Co-location Services.

3.2 Access to data centre
You must comply with:
(a) our Data Centre Access Policy; and
(b) all reasonable and lawful directions given by the staff of the Data Centre in relation to your activities within the Data Centre.

3.3 Electricity and internet connectivity
We will provide you with power and internet connectivity within our Data Centre.

3.4 Maintenance and support
Unless otherwise agreed in writing, you are solely responsible for the maintenance and support of any server you install in the Data Centre.


4. Domain Name Registration

4.1 Applicability
This clause 4 only applies if we provide you with Domain Name Registration Services.

4.2 Selection of a Domain Name
We do not warrant or guarantee that the Domain Name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your Domain Name until you have been notified that it has been registered.

4.3 Representation
You represent that, to the best of the your knowledge and belief, neither the registration of the Domain Name nor the manner in which it is or will be directly or indirectly used infringes the rights of a third party and that the Domain Name is not being registered for any unlawful purpose.

4.4 No proprietary rights
You acknowledge that neither you, nor we, have any proprietary right arising from the registered Domain Name.

4.5 Cancellation by you
You may cancel your Domain Name Licence at any time by notifying us in writing. Your cancellation does not entitle you to a refund of any money paid.

4.6 Cancellation by us
We may cancel your Domain Name Licence if you breach any part of these terms.

4.7 Domain Name Dispute Policy
You agree to be bound by the Dispute Policy, and the Dispute Policy is incorporated into these terms by reference.

4.8 Third party challenge
If the registration or reservation of your Domain Name is challenged by a third party, you agree that the challenge will conducted in accordance with the Dispute Policy.

4.9 Other policies
You agree that your registration of the Domain Name shall be subject to suspension, cancellation, or transfer pursuant to any ICANN or auDA adopted policy, or pursuant to any registrar or registry procedure not inconsistent with an ICANN or auDA adopted policy to correct mistakes by a registrar or registry in registering a Domain Name.

4.10 Domain Name Licence Transfers
If a Domain Name Licence is granted you agree to be bound by the Transfers (Change of Registrant) Policy.

4.11 Warranties on registration or renewal of Domain Name
You give the following warranties, when applying to register or renew the registration of a Domain Name:
(a) all information provided to register or renew the registration of the Domain Name (including all supporting documents, if any) is true, complete and correct, and is not misleading in any way, and the application is made in good faith;
(b) you meet, and will continue to meet, the eligibility criteria prescribed in auDA’s published policies for the duration of the Domain Name licence available at http://www.auda.org.au/policies/current-policies/ as amended from time to time;
(c) you have not previously submitted an application to apply for the same Domain Name with another registrar using the same eligibility criteria, and the other registrar has rejected the application;
(d) you are aware that even if the Domain Name is accepted for registration, your entitlement to register the Domain Name may be challenged by others who claim to have an entitlement to the Domain Name; and
(e) you are aware we can cancel the registration of the Domain Name (that is, the Domain Name Licence) if any of the warranties set out above is found to be untrue, incomplete, incorrect or misleading.


5. Resellers

5.1 Applicability
This clause 5 only applies if you are a reseller of our Services.

5.2 Your customers bound
You must ensure that you bind your customers to contractual terms the same as clause 2 and 4 of these terms.

5.3 No ability to bind us
You must not incur any liability, pledge our credit or make any contract binding on us.

5.4 Liability or default of your customers
The liability or default of your customers will not affect or limit your obligations under these terms.

5.5 Representations
Any promotional, advertising or other material distributed by you to your customers (whether in paper form or electronically):
(a) must not contain any misrepresentation relating to us or the nature of your relationship with us;
(b) must comply with applicable advertising standards; and
(c) must not contravene any law of the relevant jurisdiction.

5.6 Cessation
You must cease distribution of any advertising, promotional or other material which in our view is unacceptable by reference to the criteria referred to in paragraph 5.5 above.


6. Payment

6.1 Charges
Unless otherwise agreed in writing, we will charge you in accordance with the schedule of prices published from time to time on our Website.

6.2 Time for payment
Unless otherwise agreed in writing, you must pay the amount due to us within 14 days after the date of our tax invoice.

6.3 Default
If you fail to comply with clause 6.2, we may:
(a) suspend the provision of the Services, including Services in respect of which you are a reseller, until all outstanding amounts have been paid; and
(b) charge interest on the outstanding amounts at the Prescribed Rate.

6.4 Security deposit
We may require the payment of a security deposit before providing the Services, or as a condition of continuing the Services, and may apply the security deposit to any money due and payable under these terms.


7. Liability

7.1 Limitations on liability
To the maximum extent permitted by law, we will not be liable to you or to any other person for:
(a) any Claim directly or indirectly caused by any wrongful, wilful or negligent act or omission by us or any of our officers, employees, agents or contractors;
(b) any Claim directly or indirectly caused by any wrongful, wilful or negligent act or omission by you or any of your officers, employees, agents or contractors; or
(c) any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
(i) the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
(ii) we were, or any other person was, previously notified of the possibility of the loss or damage.

7.2 Maximum liability
If we are liable to you for any reason other than a breach of a non-excludable condition or warranty, our maximum aggregate liability for all proven losses, damages and claims arising out of these terms, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by you in the first year of the agreement.

7.3 Exclusion of implied warranties
To the maximum extent permitted by law, any representation, warranty, condition or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage is excluded.

7.4 Non excludable rights implied by statute
Nothing in these terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on us by the Trade Practices Act 1974 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.

7.5 Liability for breach of non excludable rights
To the maximum extent permitted by law, our liability for a breach of a non excludable condition or warranty referred to in clause 7.4 is limited, at our option, to:
(a) supplying the Services again; or
(b) payment of the cost of having the Services supplied again.

7.6 Survival of clause
Notwithstanding any other provision of these terms, this clause 7 survives the expiry or termination of these terms.


8. Indemnity

8.1 Indemnity
You indemnify us and must keep us indemnified against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against us or which we may pay, sustain or incur as a direct or indirect result of any one or more of the following:
(a) any breach or non performance of these terms by you; and
(b) any wrongful, wilful or negligent act or omission by you or any of your employees, agents or contractors.

8.2 Operation
Unless these terms expressly provides otherwise:
(a) each indemnity in these terms survives the expiry or termination of these terms; and
(b) a party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.


9. Termination

9.1 By notice
We may, by notice to you, terminate these terms if you:
(a) fail to pay any amount due and payable to us within 1 month after the due date for payment;
(b) fail, within 14 days after receipt of notice, to remedy any breach of your obligations under these terms which is capable of remedy;
(c) breach any of your obligations under these terms which is not capable of remedy;
(d) persistently breach your obligations under these terms; or
(e) go into liquidation, have a receiver or receiver and manager appointed, enter into a scheme or arrangement with creditors or suffer any other form of external administration.

9.2 Effect on termination
On termination of these terms:
(a) we may immediately cease providing the Services, including any Services in respect of which you are a reseller; and
(b) subject to the provision of a tax invoice, all charges incurred under these terms will become immediately due and payable.


10. GST

10.1 Definitions
In this clause 10:
(a) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
(b) Supplier means any party treated by the GST Act as making a Supply under these terms.

10.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these terms are exclusive of GST.

10.3 Payment of GST
(a) If GST is imposed on any Supply made under or in accordance with these terms, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
(b) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with these terms.

10.4 Reimbursement of expenses
If these terms require a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(b) if the Other Party's recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,
(c) such that after the Other Party meets the GST liability, it retains the Net Amount.


11. Dispute resolution

11.1 Delivering a dispute notice
If any dispute arises between the parties relating to or arising out of these terms, including its construction, effect, the rights and obligations of the parties, the performance, breach, rescission or termination of these terms, the entitlement of any party to damages or compensation (whether for breach of contract, tort or any other cause of action) or the amount of that entitlement (Dispute), the party claiming that a Dispute has arisen must deliver to the other party a notice containing particulars of the Dispute (Dispute Notice).

11.2 Parties must negotiate
During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), each of the parties must use its reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation.

11.3 Referral to third party
If the parties have been unable to resolve the Dispute within the period stated in clause 11.2, then the parties must refer the Dispute to a Mediator. For the purposes of this clause 11, the Mediator is a person:
(a) having appropriate qualifications and experience relevant to determining the Dispute;
(b) who is agreed by the parties or, failing agreement within 5 Business Days, is nominated at the request of any party by the Institute of Arbitrators and Mediators Australia in accordance with its Mediation and Conciliation Rules; and
(c) who does not act, or whose firm does not act, for any party.

11.4 Role of Mediator
The role of the Mediator is to assist in negotiating a resolution of the Dispute. The Mediator may not make a decision that is binding unless the parties otherwise agree in writing.

11.5 Powers of Mediator
If a Mediator is appointed under clause 11.3, the Mediator:
(a) may determine the time, place and procedures (which will be as informal as is consistent with the proper conduct of the matter) for the mediation, having regard to the nature of the Dispute and the provisions of these terms;
(b) may communicate privately with the parties or with their lawyers;
(c) may allow the appearance of lawyers on behalf of the parties;
(d) may accept written submissions from a party in relation to the Dispute, provided a copy of the submission is also given to all other parties;
(e) may co opt other expert assistance;
(f) must have regard to the fairness and reasonableness of any matters pertaining to the Dispute; and
(g) must deal with any matter as expeditiously as possible and by no later than 20 Business Days after referral to the Mediator.

11.6 Obligations of parties
If a Mediator is appointed under clause 11.3:
(a) the parties must attend the mediation and make a determined and genuine effort to resolve the Dispute as soon as reasonably possible;
(b) without limiting clause 11.6(a), the parties must use their best endeavours to make available to the Mediator all information relevant to the Dispute and which the Mediator reasonably requires in order to resolve the Dispute;
(c) everything that occurs before the Mediator must be in confidence and in closed session;
(d) any information or documents disclosed by a party under this clause 11 must be kept confidential and cannot be used (and cannot be called into evidence in any subsequent litigation by any party) except to attempt to resolve the Dispute in circumstances where the parties have consented to such disclosure;
(e) all discussions must be without prejudice;
(f) each party must pay its own costs of complying with this clause 11 and the costs of the Mediator and any other costs of complying with this clause 11 must be shared equally by the parties; and
(g) the parties must continue performing their obligations under these terms while the Dispute is being resolved.

11.7 Other proceedings
A party may not commence court proceedings in respect of a Dispute unless it has complied with this clause 11 and until the procedures in this clause 11 have been followed in full, except where:
(a) the party seeks injunctive relief in relation to a Dispute from an appropriate court where failure to obtain such relief would cause irreparable damage to the party concerned; or
(b) following those procedures would mean that a limitation period for a cause of action relevant to the issues in dispute will expire.


12. General

12.1 Notices
Any notice or other communication to or by a party under these terms:
(a) may be given by personal service, post, facsimile or email;
(b) must be in writing, legible and in English addressed to the last known address of the addressee;
(c) in the case of a corporation, must be signed by an officer or authorised representative of the sender or in accordance with section 127 of the Corporations Act; and
(d) is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, when delivered to the addressee;
(ii) if posted, 2 Business Days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not;
(iii) if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or
(iv) if sent by email, on the date and time at which the email was sent,
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time), it is deemed to have been received at 9.00 am on the next Business Day.

12.2 No assignment
You cannot assign or otherwise transfer the benefit of these terms without our prior written consent.

12.3 Obligations of confidentiality
Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 12.4, the Receiving Party must:
(a) keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Disclosing Party's Confidential Information coming into its possession or control; and
(c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these terms.
12.4 Exceptions to obligations of confidentiality
The obligations of confidentiality under clause 12.3 do not apply to any information that:
(a) is generally available to the public (other than by reason of a breach of these terms); or
(b) is required to be disclosed by any applicable law.

12.5 Severability
Any provision of these terms which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from these terms in any other case,
without invalidating or affecting the remaining provisions of these terms or the validity of that provision in any other jurisdiction.

12.6 Entire understanding
(a) These terms contains the entire understanding between the parties concerning the subject matter of these terms and supersedes all prior communications between the parties.
(b) Each party acknowledges that, except as expressly stated in these terms, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of these terms.

12.7 Governing law and jurisdiction
These terms are governed by and must be construed in accordance with the laws in force in New South Wales. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these terms, its performance or subject matter.


13. Definitions and interpretation

13.1 Definitions
In these terms:
auDA means the Australian Domain Name Administrator;
Acceptable Use Policy means the acceptable use policy published on our Website from time to time;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales;
Claim means any demand, claim, proceeding or cause of action made or brought and any costs (including costs on a solicitor client basis) incurred, damages or liability suffered or orders made in respect of the demand, claim, proceeding or cause of action;
Co-location Services means the provision of space in our data centre for the installation of a Server owned by you and includes the provision of electricity and internet connectivity;
Confidential Information means:
(a) these terms;
(b) information that at the time of disclosure by either you or us is identified by either you or us as being confidential; and
(c) all other information belonging or relating to either you or us, or any related entity of yours or ours, that is not generally available to the public at the time of disclosure other than by reason of a breach of these terms or which either you or we know, or ought reasonably to be expected to know, is confidential; Corporations Act means the Corporations Act 2001 (Cth);
Data Centre means any data centre owned or operated by us;
Data Centre Access Policy means the data centre policy published on our Website from time to time;
Dedicated Hosting Services means the provision of a Server owned by us, in respect of which you have exclusive use, and includes the provision of electricity and internet connectivity;
Dispute Policy means either:
(a) the ICAAN Uniform Dispute Resolution Policy available at http://www.icann.org/en/udrp/udrp-policy-24oct99.htm and as amended from time to time; or
(b) the .au Dispute Resolution Policy available at http://www.auda.org.au/policies/auda-2008-01/ and as amended from time to time,
whichever is relevant in the particular circumstances.
Domain Name means the Domain Name registered by us on your behalf;
Domain Name Licence means your licence to use the Domain Name which is the subject an application made by you;
Domain Name Registration Services means services related to the registration of Domain Names;
Email Services means the provision of email accounts and area on the Server allocated by us for the storage of associated data;
ICAAN means the Internet Corporation for Assigned Names and Numbers;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(c) patents, designs, copyright, rights in circuit layouts, plant breeder's rights, trade marks, know how, brand names, Domain Names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(d) any application or right to apply for registration of any of these rights;
(e) any registration of any of those rights or any registration of any application referred to in paragraph (d); and
all renewals and extensions of these rights;
Managed Services means our management of the Domain Name, the website located at the Domain Name, the hosting of the website or any other management services we provide to you;
Prescribed Rate means the interest rate for overdrafts of $100,000 or more charged by the Commonwealth Bank of Australia plus 2% calculated on daily rests from the due date to the date of payment;
Secure Web Page means the area on the Server allocated by us to you which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded because it is encrypted;
Server means one or more computer servers operated by us and used in connection with the provision of the Services;
Service Level Policy means the service level policy published on our Website from time to time;
Services means the Co-location Services, Dedicated Hosting Services, Domain Name Registration Services, Email Services, Managed Services, Secure Web Page Services, Shared Hosting Services and any other services we may provide to you from time to time;
Shared Hosting Services means the provision of space on a Server owned by us, in respect of which you do not have exclusive use, and includes the provision of electricity and internet connectivity;
Third Party Claim means a Claim brought against us by a person not a party to these terms;
Transfers (Change of Registrant) Policy means the policy of auDA regarding the transfer of a Domain Name Licence to another registrant;
Website means our website located at <www.Hostway Corporation.com.au>.

13.2 Interpretation
In this Deed, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenience only and do not affect the interpretation of this Deed;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(g) the word "person" includes a natural person and any body or entity whether incorporated or not;
(h) the word "month" means calendar month and the word "year" means 12 months;
(i) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(j) a reference to a thing includes a part of that thing;
(k) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
(l) wherever "include" or any form of that word is used, it must be construed as if it were followed by "(without being limited to)";
(m) money amounts are stated in Australian currency unless otherwise specified; and
(n) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body.