These subscriber terms and conditions ("Terms") apply to all provision of services by Flint Interactive PTY Limited, ACN: 127 159 620 of 17 Marine Pde, Abbotsford, Victoria 3067 to the SUBSCRIBER such as Website Hosting and other online services.
1. Provision of services
In return for the Subscriber paying the Charges, We will provide the Services to the Subscriber.
The Subscriber acknowledges that it has independently determined and verified, using its own skill and judgment, that the Services to be supplied under these Terms will meet the Subscriber's requirements, and that the Subscriber has not relied in any representation made by Us or on Our behalf.
We will provide the Subscriber with access to the services, as agreed in writing by Us and the Subscriber from time to time, and contained in a written Service Schedule (the "Services").
2. Charges and payment
The Subscriber will pay Us the Charges for the provision of the Services, for the minimum Term, at the rate and in the manner specified in the Service Schedule, or as otherwise agreed between the Subscriber and Us in writing.
The Charges after the Minimum Term will be based on prices that We provide to the Subscriber from time to time. We may change Our price list at any time after the Minimum term by giving the Subscriber at least one month's written notice.
Payment of the Charges for Services must be made in advance of the provision of the Services unless We otherwise agree in writing. Any other invoices that We issue are payable within 7 days of issue.
Unless otherwise expressly indicated in the Service Schedule, all amounts payable under this Agreement do not include any applicable GST, which will be payable in addition to those amounts.
(a) We are required to perform the Services in circumstances other than those expressly or reasonably anticipated; or
(b) there is a change in the timing or complexity of the Services; and
those circumstances are not the result of Our breach of this Agreement, then We will notify the Subscriber of any additional fees payable by the Subscriber as a result of such changes. Those additional fees will be payable at the times and in the manner specified in Our notice.
If the Subscriber fails to pay Us any amount by the due date for payment, then without prejudice to any other right We may have, We may:
(a) charge the Subscriber interest on the amount in default (compounding daily) at the rate specified from time to time pursuant to the Penalty Interest Rates Act 1985 (Vic), which is payable at the same time as the amount in default;
(b) suspend the provision of any Services until payment in full (including interest) has been received; and/or
(c) terminate the Agreement and the provision of further Services.
Where the Services include domain name registration:
We will raise an invoice for payment to the appropriate naming authority for the registration of that name, specifying the date by which payment by the Subscriber must be received by Us; and/or
if We do not receive payment before the specified date, We may release the Subscriber's domain name without any liability for losses suffered by the Subscriber or anyone else regardless of how it may arise.
3. Monitoring of bandwidth
As part of the Subscriber's subscription to the Services, the Subscriber will be allocated a permitted monthly transfer limit as stated in the Service Schedule.
We reserve the right to:
(a) monitor the Subscriber's monthly transfer usage;
(b) implement restrictions on available bandwidth in order to protect all Services using Our Servers from time to time when necessary; and/or
(c) impose additional charges for usage above the monthly transfer limit at the prevailing rate;
(d) throttle back the capacity available to the Subscriber if the Subscriber's usage extends or threaten to extend the monthly transfer limit (although nothing in these Terms obliges Us to do so).
4. Domain name registration
The Subscriber is responsible for checking the accuracy and correct spelling of the Subscriber's domain name and its ownership entitlement, as identified on documents that We send to the Subscriber. The Subscriber must will notify Us within 24 hours of any corrections required.
Upon registration of the Subscriber's domain name, the Subscriber must at all times comply with the terms and conditions applicable to the registration of domain names, as published by the relevant naming authority, and generally comply with the terms and conditions of any such authority having similar force to which the Subscriber may become subject as a result of the provision of the Services by Us.
The Subscriber will indemnify Us, Our employees, contractors, servants and agents (collectively "the indemnified parties" and each of them an "indemnified party") and shall hold the indemnified parties harmless from and against all loss, penalties, damages, liability, claims or expenses of any nature arising directly or indirectly from any claims by third parties as to ownership or other rights to use a domain name, where one has been registered by or transferred to Us in the course of Our providing any Services, or arising in any way by the Subscriber infringing any third party rights.
5. Unauthorised use by Subscriber or its customers
We enforce an Acceptable Use Policy, and all Subscribers using Services and facilities offered by Us are obliged to comply with that Acceptable Use Policy. Copies of Our Acceptable Use Policy are available on Our website. We may change those documents at any time and the Subscriber is required to check them from time to time. The Subscriber's continuing use of the Services after such changes will constitute the Subscriber's acceptance of those changed documents. The Acceptable Use Policy forms part of the Subscriber's agreement with Us in relation to the Services.
The Subscriber must comply with any directions that We give regarding the Services from time to time, including as to procedures imposed from time to time to prevent unauthorised use of or access to the Services.
The Subscriber must not engage in or otherwise permit, any unauthorised use of Our facilities or Services by any person, including the Subscriber, its employees, contractors, customers or third parties. Without limiting the foregoing the Subscriber must not:
(a) serve more than one discrete destination website from a single hosting package;
(b) permit any third party to use or to access any of the Services for any purpose without Our prior written consent;
(c) serve information in the form of text or graphics from Our Servers which may:
(i) amount to, or directly or indirectly lead to a contravention of any law; or
(ii) bring Us into disrepute or call into question any action taken by Us;
(d) use Our Servers to send bulk unsolicited e-mail, or append to any bulk unsolicited e-mail, a domain name or e-mail address which has its MXrecord or DNS pointing to Our Servers; or
(e) use or attempt to use protocols, procedures or scripts which in Our opinion have the effect of degrading or the potential to degrade the Services and facilities offered by Us.
The Subscriber agrees to immediately inform Us if it becomes aware of any unauthorised use of any of the Services by any person, and to cooperate with Us in any steps that We wish to take to prevent such unauthorised use or reduce its likelihood or effect.
Where the Subscriber is itself providing services to third party customers, the Subscriber must ensure that its customers agree to be bound by contractual provisions consistent with the Agreement and Our Acceptable Use Policy. Any act or omission by a customer of the Subscriber will be taken to be an act or omission of the Subscriber, for the purposes of the Agreement and Our Acceptable Use Policy.
6. Suspension of services
We may suspend access to the Services without notice:
(a) to preserve data and integrity;
(b) if there is a security breach;
(c) to comply with any law or any direction of a regulator;
(d) if directed to do so by any of Our service providers; or
(e) if there is a malfunction in the Services.
We reserve the right to terminate or suspend the Services to the Subscriber indefinitely and without refund or compensation if:
(a) the Services are being used, or appear intended to be used, by a Subscriber or a customer of the Subscriber in a manner deemed inappropriate by Us;
(b) the provision of the Services is likely to expose Us to any liability as a result of a breach of any law, any contract, or third party rights; or
(c) the Subscriber otherwise breaches these Terms (including the Acceptable Use Policy).
Our Suspension of Services may continue until the problem or breach is rectified or until We otherwise agree.
We will not be liable to the Subscriber's, its employees, contractors, customers or agents or any other person as a result of taking the action referred to in this Clause.
7. Loss of data
We will take the reasonable steps to safeguard Our Servers and the data contained on them. However We will not be responsible for any loss of Subscriber or other data stored or intended to be stored on Our Servers or back-up devices, and the Subscriber will not be entitled to any form of compensation from Us in the event of loss of data for any reason.
8. Interruptions to service
We take no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services for any reason (including any alteration, modifications or amendments due to changes and specifications requested or implemented by the Subscriber - whether or not beyond the Services already supplied).
In the event of total systems failure resulting in the disruption of service to the Internet from Our Servers, We will endeavour to repair and reinstate the service within 24hours of detection depending on the severity of the failure.
If failure is caused by the Subscriber or any agent or customer of the Subscriber to whom access to Our Servers was given, the Subscriber must pay all costs required to repair the damage or replace the relevant equipment, and to recover all software and data.
9. Subscriber deliverables
The Subscriber will provide Us with the Subscriber Deliverables described in the Service Schedule in accordance with the time frames agreed between the parties.
We will not be responsible for any deficiency or alleged deficiency in the Services which is attributable to:
(a) incorrect or incomplete information or Client Deliverables provided by or on behalf of the Subscriber; or
(b) failure by the Subscriber to provide the Subscriber Deliverables or other relevant information.
The Subscriber will have no remedy against Us in relation to any delay or failure to complete the Services, where such delay or failure is a result (direct or indirect ) of any act or omission by the Subscriber or anyone on the Subscriber's behalf, or a breach by the Subscriber of these Terms (including the Acceptable Use Policy).
10. Warranty and Indemnity
The Subscriber warrants that:
(a) it owns, or has a licence to use the Subscriber Deliverables (including any Intellectual Property Rights in them) provided to Us, including any trade marks;
(b) Our provision of Services to the Subscriber in accordance with these Terms will not infringe any third party's Intellectual Property Rights.
The Subscriber indemnifies Us and Our parties, service providers, servants and agents and each of them (collectively "the indemnified parties" and each of them an "indemnified party") from and against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against the indemnified party) which an indemnified party may sustain or incur as a result, whether directly or indirectly, of:
(a) a breach by the Subscriber of any of these Terms (including the Acceptable Use Policy) or any of the warranties contained in these Terms; or
(b) any claim by any person arising out of a breach of any of the warranties contained in Clause; or
(c) a breach by the subscriber of any obligations under these Terms (including the Code of Practice and Acceptable Use Policy); or
(d) any wilful, negligent or other wrongful act or omission by the Subscriber.
11. Implied terms
Subject to Clause, any condition or warranty which would otherwise be implied is hereby excluded.
If a condition or warranty cannot be excluded by law, Our liability for any breach of that condition or warranty will be limited, at Our option, to:
(a) the supplying of the Services again; or
(b) paying the cost of having the Services supplied again.
12. Limitation of liability
We have no liability to the Subscriber, any customer of the Subscriber, or to any other person in respect of any loss of profits or data, consequential loss or damage which may arise directly or indirectly in respect of:
(a) Services or other things supplied pursuant to these Terms;
(b) failure or omission on Our part to comply with Our obligations under this Agreement;
(c) supply of Subscriber Deliverables by the Subscriber which are incomplete, inaccurate, illegible, out of sequence, in the wrong form or arising from late arrival or non-arrival or any other fault by the Subscriber; or
13. Confidential information
Each party will use the Confidential Information of the other party only for the purposes of this Agreement.
Neither party will disclose to any third party (other than its employees or contractors in their capacities are such) any Confidential Information of the other party which information is not lawfully in the public domain.
If a party is required by law to disclose the other party's Confidential Information, the it will take reasonable steps to limit that disclosure to only that information required to comply with that law. If reasonably possible, the party will apply to have that disclosure made subject to a confidentiality order.
The minimum contractual period for the provision of the Services is set out in the Service Schedule ('Initial Term').
Subject to Clause, following the expiry of the Initial Term, this agreement will continue until terminated by either party pursuant to Clause.
Either party may elect to terminate this agreement or any Services after the Initial Term by providing the other party with written notice to that effect at least 3month's prior written notice.
If during the Initial Term the Subscriber wishes to receive a higher level of Services than those specified in the Service Schedule, We may (but are not obliged to) provide a quotation for the additional fees payable to Us for providing that higher level of Service for the remainder of the Initial Term. If the Subscriber accepts that quotation, We will deliver an invoice to the Subscriber for that additional amount and prepare a replacement Service Schedule. On payment of that invoiced additional amount, We will take steps to implement that higher level of Service in accordance with that replacement Service Schedule.
After the Initial Term, We may reach a written agreement with the Subscriber from time to time, to change the levels of Services (and the applicable Charges).
Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
(a) the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14days after receiving notice requiring it to do so; or
(b) any event referred to in Clause occurs.
Each party will notify the other immediately if:
(a) it ceases to carry on business;
(b) it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(c) any step is taken to enter into any arrangement between that party and its creditors;
(d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
(e) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.
Termination of this Agreement will not affect the accrued rights or remedies of either party.
16. Force majeure
Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.
In the event of any dispute between the parties arising out of or in connection with this Agreement ('Dispute'), the parties will use their best endeavours to settle such dispute amicably by negotiation after issuing a 'Dispute Notice' indicating that there is a serious dispute to be resolved.
If the Dispute cannot be settled within 21 days of issuance of the Dispute Notice, the parties will attempt to settle the Dispute by mediation in Melbourne, Victoria (or at Our option in Perth, Western Australia) to be conducted by a mediator independent of the parties or, failing agreement, by a person appointed by the Chair of LEADR or his or her nominee.
If the Dispute is not settled pursuant to Clause 18.2, then any party involved in the Dispute may, within 28 days of the Dispute Notice, give notice ('Arbitration Notice') to the other party requiring that the Dispute be dealt with pursuant to Clause 18.4.
If the Dispute is not resolved through the procedures set out above, it will be referred to a single arbitrator if the parties agree upon one, or otherwise to two arbitrators to be appointed by the parties.
An award of the arbitrator will be binding on the parties and may be entered in any Court having competent jurisdiction.
If any part of this Agreement is deemed unenforceable then:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or
(b) in any other case the provision is severed;
(c) then the rest of this Agreement will continue to be legal and enforceable.
The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
(b) at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
(a) Each party notifying or giving notice under this Agreement will do so:
(i) in writing;
(ii) addressed to the address of the recipient; and
(iii) hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party's e-mail address or facsimile number.
(b) A notice given in accordance with Clause is taken to be received:
(i) if hand delivered, on the date of delivery;
(ii) if sent by prepaid post, 4 business days after the date of posting within Australia and 7 business days after the date of posting outside Australia; and
(iii) if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).
We may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of Our obligations under this Agreement.
These Terms (including the Acceptable Use Policy) forms the entire agreement between the parties in respect of the subject matter of that agreement.
The Subscriber may not assign any of its rights or obligations under these Terms without Our prior written consent. The Subscriber consents to Our assigning or novating those Terms to Our service providers or partners.
19. Governing law
This Agreement is governed by the laws of the State of Victoria.
20. Definitions and interpretations
In this Agreement, the following terms will have the following meanings:
Acceptable Use Policy means the policy governing acceptable use of Our Services annexed this Agreement as updated from time to time and posted on the Our Web Site;
Terms means this document, including the Acceptable Use Policy, governing Our provision of Services to the Subscriber;
Charges means the amount payable for provision of the Services;
Subscriber means the party named in the Service Schedule who has entered into this Agreement for Services;
Subscriber Deliverables means all information and materials to be provided to Us by the Subscriber under these Terms as specified in the Service Schedule, or as otherwise provided by the Subscriber to Us from time to time;
Confidential Information of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;
GST means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;
Our Servers refers to all Software Processing Units utilised by Us that are connected to the Internet;
Our Web Site means the web site maintained by Us and located at http://www.flintinteractive.com.au/ or any other that We notify to the Subscriber from time to time;
Intellectual Property means all intellectual property rights including:
(a) patents, copyright, circuit layout rights, designs, trade marks; and
(b) any application or right to apply for any of the rights referred to in paragraph (a);
Internet means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
Services means those Services that are specified in the Schedule, and such other services as We agree with the Subscriber from time to time;
In these Terms:
(a) clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
(b) words importing the singular will include the plural and vice versa;
(c) words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
(d) reference to a party to this Agreement includes reference to that party's successors and assigns.