Web Hosting Terms and Conditions

Please read these Terms and Conditions carefully. These Terms and Conditions are the terms on which we agree to provide services to you. By purchasing any service from us, you are agreeing to be bound by these Terms and Conditions (including any other agreements or policies that are expressly incorporated into them). Any substantive terms and conditions contained in your purchase order, order confirmation, notice of receipt, vendor registration portal, or any other transactional document, form or notice provided by you shall be void and without effect, even where your customary business practices require us to show assent to such terms and conditions such as by signature or reference in an invoice.

Last Updated 23/12/2020

1. Definitions

1.1  Except to the extent expressly provided otherwise, in these Terms and Conditions:

Acceptable Use Policy” or “AUP” means our Acceptable Use Policy available at https://conetix.com.au/terms, as amended from time to time in accordance with Clause 34;

Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

Business Day” means any weekday other than a bank or public holiday in Brisbane, Queensland;

Business Hours” means the hours of 09:00 to 17:00 AEST on a Business Day;

Charges” means the following amounts:

(a)  the amounts specified in the Order as amended from time to time in accordance with Clause 12.3; and

(b)  such amounts as may be agreed by the parties in writing from time to time;

Conetix”, “we”, “our”, or “us means Conetix Pty Ltd ABN 47 126 365 268 of 142 Brisbane Street Ipswich Queensland;

Conetix Confidential Information” means:

(a)  any information disclosed by us or on our behalf to you at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by you (acting reasonably) to be confidential; and

(b)  the terms of the Contract;

Confidential Information” means the Conetix Confidential Information and the Customer Confidential Information;

Contract” means a contract between you and us made under these Terms and Conditions;

Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

Customer”, “you” or “your” means the person or entity which has entered into a Contract for supply of services whether via our website or otherwise;

Customer Confidential Information” means:

(a)  any information disclosed by you or on your behalf to us at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by us (acting reasonably) to be confidential; and

(b)  the terms of the Contract;

Data Privacy Addendum” means our Data Privacy Addendum located at https://conetix.com.au/terms, as amended from time to time in accordance with Clause 34;

Effective Date” means the date upon which we activate your Hosting Account;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, pandemics, riots, terrorist attacks and wars);

GST means:

(a)   the same as in the GST Law;

(b)   any other goods and services tax, or any tax applying to the Contract in a similar way; and

(c)   any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;

GST Law” means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Hosted Data” means all data, works and materials:

(d)   uploaded to or stored on the Hosting Platform by you, or by any third party using any software made available by means of the Hosting Platform;

(e)   transmitted by the Hosting Platform at your instigation, or at the instigation of any third party using any software made available by means of the Hosting Platform; or

(f)        supplied by you to us for uploading to, transmission by or storage on the Hosting Platform;

Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;

Hosting Platform” means the platform managed by us and used by us to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

Hosting Services” means those web hosting services specified in the Order which will be made available by us to you as a service via the internet in accordance with these Terms and Conditions;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Order” means an online order form published by us and completed and submitted by you, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, or an email or other electronic exchange between you and us where you order services from us, in each case incorporating these Terms and Conditions by reference;

Privacy Policy” means the Privacy Policy located at https://conetix.com.au/terms, as amended from time to time in accordance with Clause 34;

Service Level Agreement” or “SLA” means the Service Legal Agreement located athttps://conetix.com.au/terms, as amended from time to time in accordance with Clause 34;

Service Level Credits” means service level credits provided for in the SLA;

Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, the Acceptable Use Policy, the Service Level Agreement, the Privacy Policy, the Data Privacy Addendum and the Order, including any amendments to that documentation from time to time; and

Third Party Software” means software, widgets or other applications developed, owned or licensed by a third party.

    2. Term

    2.1  The Contract shall come into force upon the Effective Date.

    2.2  The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 24.

    2.3  Unless the parties expressly agree otherwise in writing, each Order shall create a distinct contract under these Terms and Conditions.

    3. Hosting Services

    3.1  On the Effective Date, either:

    (a)           the Hosting Platform will automatically generate a Hosting Account for you and will provide you with or confirm your login details for that Hosting Account; or

    (b)           we will create a Hosting Account for you and will provide you with or confirm your login details for that Hosting Account

    3.2  We hereby grant to you a right to use the Hosting Services for the purposes of your business in accordance with any relevant documentation supplied by us to you during the Term.

    3.3  The right granted to you under Clause 3.2 is subject to the following limitations:

    (a)  the Hosting Account may only be used by your officers, employees, agents and subcontractors or your Affiliates;

    (b)  the Hosting Account may only be used by the named users nominated by you in the Hosting Account or notified to us by email sent from the nominated email address for the Hosting Account to our email address in Clause 27.2 (or as otherwise notified).

    3.4  Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted to you under Clause 3.2 is subject to the following prohibitions:

    (a)  you must not sub-license your right to access and use the Hosting Account;

    (b)  you must not permit any unauthorised person to access or use the Hosting Account; and

    (c)  you must not make any alteration to the Hosting Platform, except as expressly permitted by the documentation supplied by us to you.

    3.5  You shall use reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

    3.6  You must notify us immediately if any unauthorised person gains access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

    3.7  We will not be liable to you in respect of any losses arising out of any unauthorised person gaining access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

    3.8  You shall have no administrative access or administration rights in relation to the Hosting Platform.

    3.9  The parties acknowledge and agree that the SLA shall govern the availability of the Hosting Services.

    3.10 You must comply with the AUP, and must ensure that all persons you authorise to use the Hosting Services comply with the AUP.

    3.11 For the avoidance of doubt, you have no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform, either during or after the Term.

    4. Customer Obligations

    4.1  Save to the extent that the parties have agreed otherwise in writing, you must provide us with, or procure for us, such:

    (a)  co-operation, support and advice;

    (b)  information and documentation,

           as are reasonably necessary to enable us to perform our obligations under the Contract.

    4.2  You must provide us with, or procure for us, such access to your computer hardware, software, networks and systems as may be reasonably required by us for us to perform our obligations under the Contract.

    5. Hosted Data

    5.1  You hereby grant to us, our Affiliates, our subcontractors, our Affiliates’ subcontractors, and providers of Third Party Software a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of our obligations and the exercise of our rights under the Contract.

    5.2  You warrant to us that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

    5.3  If we reasonably suspect that any element of the Hosted Data breaches Clause 5.2, or breaches any provision of the AUP, we may edit or delete the relevant Hosted Data to the extent reasonably necessary to ensure that it no longer breaches that provision (but we are under no obligation to do so).

    6. Back-ups

    6.1  If the Order expressly includes the creation of back-up copies of the Hosted Data:

    (a)           We will create a back-up copy of the Hosted Data at least daily, will ensure that each such copy is sufficient to enable us to restore the Hosting Services to the state they were in at the time the back-up was taken, and will retain and securely store each such copy for a minimum period of 30 days.

    (b)           Within the period of 1 Business Day following receipt of a written request from you, we shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by us in accordance with Clause 6.1(a). You acknowledge that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.

    (c)           Save to the extent expressly provided otherwise in these Terms and Conditions, you shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

    (d)           Upon the date of effective termination of the Contract, we will make available to you for download an electronic copy of the Hosted Data (as constituted upon that date). We will however have no obligations under this Clause 6.1(d) to make available such Hosted Data if any amounts payable by you to us under the Contract are due but unpaid upon that date. You acknowledge that whilst we may delete the Hosted Data from our computer systems following termination, we may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.

    6.2  In all other circumstances:

    (a)    You shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

    (b)    Upon request from you, we will use commercially reasonable efforts to provide support to you and to troubleshoot issues relating to your back-ups and you agree to pay for such services at our then current hourly rate, but you acknowledge we do not guarantee that we will be able to resolve those issues.

    (c)    We may, in our discretion, create and maintain back-ups of the Hosted Data. You acknowledge that whilst we may delete the Hosted Data from our computer systems following termination, we may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.

    7. Bandwidth and Disk Usage

    7.1  You agree that bandwidth and disk usage shall not exceed the data usage per month for the Hosting Services the subject of the Contract (the ‘Contracted Usage’).

    7.2  If your bandwidth and disk usage exceeds the Contracted Usage, we may:

    (a)       increase the Charges to the minimum charges currently charged by us for the usage you have used; and

    (b)       suspend the Hosting Services if in our opinion your usage puts at risk continued service provision to other customers.

    8. Third Party Software

    8.1  As part of the Hosting Services, you may be allowed to use Third Party Software.  The Third Party Software is neither sold nor distributed to you, and you may use the Third Party Software solely as part of the Hosting Services. You may not use the Third Party Software outside the Hosting Services.

    8.2  Your use of the Third Party Software may be subject to additional terms. If the Third Party Software is accompanied by or requires a licence agreement from the third party provider, your use of the Third Party Software is subject to that licence agreement, in addition to the Contract, and if necessary for us to provide the Hosting Services you authorise us to accept the terms of that licence agreement on your behalf.

    8.3  We may provide your personal information to third party providers as required to provide the Third Party Software.

    8.4  We reserve the right to modify, change or discontinue any Third Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third Party Software.

    8.5  We make no representation or warranties whatsoever about any Third Party Software offered in connection with the Hosting Services.

    1.   No assignment of Intellectual Property Rights

    9.1  Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from us to you, or from you to us.

    9. No assignment of Intellectual Property Rights

    9.1  Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from us to you, or from you to us.

    10. IP Addresses

    10.1 If we assign to you an Internet Protocol (IP) address, you accept that the IP address is licensed to you, is not your property and is not portable if and when the Contract ends.

    10.2 We reserve the right to change or remove any IP address assigned to you in our sole discretion.

    11. SSH Access

    11.1 You shall have no SSH access in relation to your Hosting Account, save to the extent that we have expressly agreed otherwise in writing.

    11.2 If we agree to grant you SSH access, you acknowledge that you are solely responsible for any changes you make while using such access and we may not be able to correct any changes, recover data, or reverse any damage you do when using SSH access.

    11.3 Upon request from you, we will use commercially reasonable efforts to provide support to you and to troubleshoot issues and you agree to pay for such services at our then current hourly rate, but you acknowledge that we do not guarantee that we will be able to resolve those issues.

    12. Charges

    12.1 You shall pay the Charges to us in accordance with these Terms and Conditions.

    12.2 All amounts stated in an Order or otherwise in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST.

    12.3 We may elect to vary any element of the Charges by giving you written notice of the variation.

    12.4 For Clause 12.3, the period of notice required to be given depends on the nature of the variation, such that:

    (a)        if the variation will benefit you or have a neutral impact on you, we may make the variation effective immediately and without advance notice by posting a general notice on our website or in your Hosting Account;

    (b)        for any other variation, we will give you not less than 30 days’ written notice of the variation, expiring at the end of any calendar month.

    12.5 Your continued use of the Hosting Services following such variation constitutes your acceptance of the variation. If you do not agree to the variation to the Charges you may terminate the Contract in accordance with Clause 24.7.

    12.6 If you wish to dispute an invoice or Charge, then you agree to do so in good faith and within 30 days of the date of the invoice or the Charge.

    13. Service Level Credits

    13.1 Service Level Credits must be claimed and will be applied in accordance with the SLA.

    13.2 Service Level Credits are your sole remedies for downtime, unavailability or other SLA failures.

    14. Payments

    14.1 Subject to clause 14.2, we shall issue invoices for the Charges to you:

    (a)  for Charges relating to the provision of Hosting Services to you – on the Effective Date and then monthly thereafter

    (b)  for Charges relating to excess traffic or additional services – on the last day of the calendar month for that calendar month.

    14.2 If our provision of Hosting Services to you includes the use of certain Third Party Software (e.g. Microsoft software), we shall issue invoices for the Charges to you:

    (a)  on the Effective Date for the provision of Hosting Services during the period from the Effective Date to the last day of the calendar month

    (b)  thereafter, on the last day of the calendar month for the provision of Hosting Services during the immediately following month

    (c)  for Charges relating to excess traffic or additional services, on the last day of the calendar month for that calendar month.

     14.2   You must pay the Charges to us:

    (a)  upon issue of any invoices issued in accordance with Clause 14.1(a) or 14.2(a)

    (b)  on the first day of the immediately following month for an invoice issued in accordance with Clause 14.2(b)

    (c)  within the period of 30 days following the issue of any other invoice.

    14.3 You must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by us to you from time to time).      

    14.4 If you do not pay any amount properly due to us under these Terms and Conditions, we may charge you interest on the overdue amount at the rate of 2% per annum above the Commonwealth Bank base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

    14.5 In the event any collection action is taken by us to recover any overdue amount, any costs incurred by us in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred) are payable by you and shall be recoverable by us as a separate debt.

    15. Confidentiality obligation

    15.1 We must:

    (a)  keep the Customer Confidential Information strictly confidential;

    (b)  not disclose the Customer Confidential Information to any person without your prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

    (c)  use the same degree of care to protect the confidentiality of the Customer Confidential Information as we use to protect our own confidential information of a similar nature, being at least a reasonable degree of care;

    (d)  act in good faith at all times in relation to the Customer Confidential Information; and

    (e)  not use any of the Customer Confidential Information for any purpose other than for the performance of our obligations and the exercise of our rights under the Contract.

    15.2 You must:

    (a)  keep the Conetix Confidential Information strictly confidential;

    (b)  not disclose the Conetix Confidential Information to any person without our prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

    (c)  use the same degree of care to protect the confidentiality of the Conetix Confidential Information as you use to protect your own confidential information of a similar nature, being at least a reasonable degree of care;

    (d)  act in good faith at all times in relation to the Conetix Confidential Information; and

    (e)  not use any of the Conetix Confidential Information for any purpose other than the performance of your obligations and exercise of your rights under the Contract.

    15.3 Notwithstanding Clauses 15.1 and 15.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

    15.4 No obligations are imposed by this Clause 15 with respect to a party’s Confidential Information if that Confidential Information:

    (a)  is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

    (b)  is or becomes publicly known through no act or default of the other party; or

    (c)  is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

    15.5 The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

    15.6 Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

    15.7 Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

    15.8 The provisions of this Clause 15 shall continue in force indefinitely following the termination of the Contract.

    16. Security

    16.1 You agree that you will not, and will not allow any other person to, violate or attempt to violate any aspect of the security of our systems or networks.

    16.2 Examples of violations are:

    (a)           accessing data unlawfully or without consent;

    (b)           attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

    (c)           attempting to interfere with service to any user, host or network including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”;

    (d)           forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting; and

    (e)           taking any action in order to obtain services to which you are not entitled.

    16.3   Should we determine that our systems or networks have been accessed in an unauthorised manner, and that unauthorised access impacts the Hosting Services, we agree to notify you as soon as reasonably practicable after we have investigated the unauthorised access and fulfilled our legal obligations.

    16.4   Should you determine that the Hosting Services have been accessed in an unauthorised manner, you agree to notify us as soon as reasonably practicable after becoming aware of the unauthorised access.

    17. Interruption to Hosting Services

    17.1 Where possible we will notify you of any interruption to the Hosting Services by posting a notice on our Conetix Online service.

    17.2 You are responsible for subscribing to our Conetix Online service and informing yourself of any interruptions notified to you using that service.

    17.3 Other than as expressly provided for in the SLA, we will not be liable to you in respect of any losses arising out of any interruption to the Hosting Services or any failure to give you notice of any interruption to the Hosting Services or your failure to subscribe to Conetix Online and inform yourself of any interruption to the Hosting Services.

    18. Privacy and Data Protection

    18.1 Each party acknowledges and agrees to be bound by the Privacy Policy and, where applicable, the Data Privacy Addendum.

    18.2 Where applicable under the data privacy laws of the European Union and its member states, we are the data controller for the personal data belonging to you and any named user of the Hosting Services which is provided to or made available to us.

    18.3 For all other personal data collected by you from your employees, customers or end users or otherwise stored, transferred or processed by any part of the Hosting Services, we are the data processor.

    18.4 Where we are the data processor, we will use such personal data only as instructed by you or required by law, and not for any other purpose.

    19. Warranties

    19.1 We shall provide the Hosting Services with reasonable skill and care.

    19.2 We warrant to you that:

    (a)  we have the legal right and authority to enter into the Contract and to perform our obligations under these Terms and Conditions;

    (b)  we will comply with all applicable legal and regulatory requirements applying to the exercise of our rights and the fulfilment of our obligations under these Terms and Conditions; and

    (c)  we have or have access to all necessary know-how, expertise and experience to perform our obligations under these Terms and Conditions.

    19.3 You warrant to us that:

    (a)  you have the legal right and authority to enter into the Contract and to perform your obligations under these Terms and Conditions;

    (b)  you will comply with all applicable legal and regulatory requirements applying to the exercise of your rights and the fulfillment of your obligations under these Terms and Conditions;

    (c)  you are purchasing the Hosting Services as a business and not as a consumer;

    (d)  you have satisfied yourself that the Hosting Services are suitable and satisfactory for your requirements;

    (e)  in entering into the Contract you have not relied on any representation or information from any source except the definition of the Hosting Services and the Charges given on our website; and

    (f)   in entering into the Contract you have not relied on us as being “experts” in any area.

    19.4 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

    20. Indemnities

    20.1 You shall indemnify us and shall keep us indemnified against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by us and arising directly or indirectly as a result of:

    (a)  any breach by you of these Terms and Conditions or the Contract;

    (b)  any failure by you to comply with any laws;

    (c)  any infringement by you of any Intellectual Property Rights of any third person;

    (c)  the posting by you of any content on your website;

    (d)  the posting by any third person whether with or without your knowledge of any content on your website;

    (e)  any action taken or omitted to be taken by any third person in relation to your website;

    (f)  your use or misuse of any Third Party Software.

    21. Limitations and exclusions of liability

    21.1 Nothing in these Terms and Conditions will:

    (a)  limit or exclude any liability for death or personal injury resulting from negligence;

    (b)  limit or exclude any liability for fraud or fraudulent misrepresentation;

    (c)  limit any liabilities in any way that is not permitted under applicable law; or

    (d)  exclude any liabilities that may not be excluded under applicable law.

    21.2 The limitations and exclusions of liability set out in this Clause 21 and elsewhere in these Terms and Conditions:

    (a)  are subject to Clause 21.1; and

    (b)  govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

    21.3 We shall not be liable to you in respect of any losses arising out:

    (a)  any malfunction in hardware provided by you;

    (b)  any firewall provision not specified in the Hosting Services;

    (c)  any malfunction in any software whether provided by you or by us;

    (d)  any aspect whatsoever of the content of your website;

    (e)  any action reasonably taken by us in implementing the AUP; or

    (f)   your use or misuse of any Third Party Software.

    21.4 We shall not be liable to you in respect of any losses arising out of a Force Majeure Event, any loss of profits or anticipated savings, any loss of revenue or income, any loss of use or production, any loss of business, contracts or opportunities, or any special, indirect or consequential loss or damage.

    21.5 We shall not be liable to you in respect of any loss or corruption of any data, database or software; providing that if Clause 6.1 applies then this Clause 21.5 shall not protect us unless we have fully complied with our obligations under Clause 6.1.

    21.6 Our liability to you in respect of any event or series of related events shall not exceed the total amount paid and payable by the you to us in the 12 month period preceding the commencement of the event or events.

    21.7 The aggregate liability of us to you shall not exceed the total amount paid and payable by you to us under the Contract.

    22. Force Majeure Event

    22.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

    22.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:

    (a)  promptly notify the other; and

    (b)  inform the other of the period for which it is estimated that such failure or delay will continue.

    22.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

    23. Suspension

    23.1 We may suspend the provision of the Hosting Services:

    (a)  if any amount due to be paid by you to us under the Contract is overdue, and we have given you at least 7 days’ written notice, following the amount becoming overdue, of our intention to suspend the Hosting Services on this basis;

    (b)  if you have breached any term of the Contract and we have given you at least 7 days’ written notice of our intention to suspend the Hosting Services on this basis;

    (c)  without notice if in our absolute discretion we believe that you have violated the AUP;

    (d)  without notice if we reasonably believe that you use of the Hosting Services may compromise or have an adverse effect on our systems or networks; or

    (e)  without notice if we reasonably believe the circumstances justify suspending the Hosting Services in order to protect us or others or to comply with any law.

    23.2 You will not be entitled to any refund in respect of any period during which the provision of the Hosting Services is suspended.

    23.3 We will not be liable to you in respect of any losses arising out of the suspension of the provision of the Hosting Services.

    24. Termination

    24.1 We may terminate the Contract by giving you not less than 30 days’ written notice of termination, expiring at the end of any calendar month.

    24.2 You may terminate the Contract by:

    (a)  terminating the Hosting Services via the Hosting Account; or

           (b) providing us with written notice by email sent from the nominated email address for the Hosting Account to our email address in Clause 27.2 (or as otherwise notified).

    24.3 If you terminate the Contract in accordance with Clause 24.2, the termination will be effective on the last day of the calendar month that occurs following the date which is 30 days’ after you terminate the Contract in accordance with Clause 24.2.

    24.4 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

    (a)  the other party commits any material breach of the Contract, and the breach is not remediable;

    (b)  the other party commits a material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

    (c)  the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).

    24.5 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

    (a)  the other party:

    (i)   is dissolved;

    (ii)   ceases to conduct all (or substantially all) of its business;

    (iii)  is or becomes unable to pay its debts as they fall due;

    (iv)  is or becomes insolvent or is declared insolvent; or

    (v)  convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

    (b)  an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

    (c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

    (d)  if that other party is an individual:

    (i)   that other party dies;

    (ii)   as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

    (iii)  that other party is the subject of a bankruptcy petition or order.

    24.6 We may terminate the Contract immediately by giving written notice to you if:

    (a)  any amount due to be paid by you to us under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

    (b)  we have given you at least 30 days’ written notice, following the failure to pay, of our intention to terminate the Contract in accordance with this Clause 24.6.

    24.7 You may terminate the Contract by giving us not less than 30 days’ written notice of termination, expiring at the end of any calendar month if:

    (a)  we give you a notice under Clause 12.3 varying any element of the Charges (other than a notice referred to in Clause 12.4(a)); or

    (b)  we give you a notice under Clause 34.3 varying the Terms and Conditions, Acceptable Use Policy, Privacy Policy, Data Privacy Addendum or Service Level Agreement (other than a notice referred to in Clause 34.4(a)).

    24.8 Any notice given under Clause 24.7 must be given within 14 days of your receipt of the notice of variation.

    24.9 The rights of termination set out in the Contract shall not exclude any rights of termination available at law.

    25. Effects of termination

    25.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.7, 3.11, 5.1, 6(d), 14.2, 14.3, 14.4, 14.5, 15, 18, 20, 21, 25, 26, 27, 28, 30, 31, 32, 33, 34.1, 34.2, 35, 36 and 37.

    25.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

    25.3 Within 30 days following the termination of the Contract:

    (a)  you must pay to us any Charges in respect of Hosting Services provided to you before the termination of the Contract; and

    (b)  if we terminated the Contract under Clause 24.1 or if you terminated the Contract under Clause 24.3, 24.4 or 24.5, we will not refund to you any Charges paid by you to us in respect of Hosting Services that were to be provided to you after the termination of the Contract, without prejudice to the parties’ other legal rights.

    26. Dispute resolution

    26.1 If a dispute arises between the parties in relation to a Contract, the dispute must be dealt with in accordance with this clause.

    26.2 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.

    26.3 If the dispute is not resolved by agreement within five working days of the Second Party receiving the notice referred to in Clause 26.2 above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.

    26.4 If the parties have not mediated a resolution of the dispute within 20 working days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.

    27. Notices

    27.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Clause 27.2 (for us) and the Hosting Account (for you)):  

    (a)  delivered by email, in which case the notice shall be deemed to be received upon delivery;

    (b)  delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

    (c)  sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

    27.2 Our contact details for notices under this Clause 27 are as follows:

    Conetix Pty Ltd
    142 Brisbane Street
    Ipswich QLD 4305