The terms and conditions of this Terms of Service Agreement ("Agreement") will govern the provision of the Services by IdeaBank Pty Ltd (ABN 71 633 627 077) ("our", "us", and "we") to you.
You will be deemed to have accepted the terms of the Agreement if you:
(a) accept any written proposal provided by us ("Quote") or this Agreement;
(b) if you make payment of any amount to us; or
(c) if you provide us with any instructions in respect of the Services,
after the terms of this Agreement have been brought to your attention (including without limitation where we provide you with a link to this Agreement or notify you of this Agreement).
We reserve the right to update and change this Agreement from time to time without notice. Continued use of the Services after any such changes shall constitute your consent to such changes. You can review the most current version of this Agreement at any time on www.ideabank.ventures ("Website").
(a) "ACL" means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(b) "Additional Services" means those additional services that are not set out in a Quote which we agree to supply in accordance with clause 2.2, this may include support services or changes or updates to the scope;
(c) "Applicable Laws" means all acts, legislation and all orders, by-laws and regulations made thereunder in any way governing or affecting the Services;
(d) "Commencement Date" means the date set out in the Quote;
(e) "Confidential Information" of a party means all information (in any form):
(i) relating to or arising from the Services (as it related to each party);
(ii) that concerns a party's business operations (including without limitation any content or assets) and which any reasonable person would consider to be of a confidential nature;
(iii) that a party claims as confidential and marks as confidential at the time of disclosure; or
(iv) this Agreement;
but does not include information that:
(i) is or becomes independently developed or known by the other party through no breach of this Agreement by that party;
(ii) is disclosed under a statutory duty of disclosure or otherwise at law; or
(iii) becomes publicly available without breach of this Agreement
(f) "Development Services" means any development services including the building of websites as set out in a Quote or as otherwise agreed by us from time to time;
(g) "Fees" means the fees for the Services as specified in a Quote or as otherwise advised by us;
(h) "Force Majeure" means delay or inability to perform or breach of this Agreement or Loss suffered by you which is directly or indirectly caused by circumstances outside of our reasonable control, including but not limited to the following: war, whether declared or not, insurrections, strikes, lockouts or other industrial disturbance, inability to obtain materials, unavailability of equipment, fire, storm or other severe action of the elements, accidents, government or statutory restrictions, inability to access the internet, electricity outage, or your online accounts which we use to provide the Services (such as a Google Adwords account, or a social media account) is banned, hacked/stolen, blocked or barred from trading or otherwise becomes inaccessible or unusable for any reason;
(i) "GST" has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(j) "Hosting Services" means any hosting services set out in a Quote or as otherwise agreed by us from time to time;
(k) "Insolvency Event" means:
(i) a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they fall due, or a person is taken or must be presumed to be insolvent or unable to pay the person's debts under any Applicable Laws;
(ii) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
(iii) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days;
(iv) a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its proposed deregistration is given to the corporation;
(v) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members or a moratorium involving any of them; or
(vi) a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven days or a person presents a petition against himself or herself;
(l) "Intellectual Property" includes the following:
(i) content, including ad copies, landing pages and websites;
(ii) presentations, information or data and other information technology;
(iii) any intellectual property that we owned prior to the Commencement Date;
(iv) any intellectual property which was created independently of the provision of the Services;
(v) technical information, including trade secrets, drawings, plans, strategies;
(vi) hardware accessories and documentation;
(vii) any documentation, strategy, systems, design, materials, methodologies, processes or ideas;
(vii) scripts, CGI applications, software, technology, executable files, scripts, web-page source, PHP files, IdeaBank content management systems, compiled or interpreted code, plugins, libraries, software modules, source/object code, algorithms and layouts;
(ix) and any other materials or rights referred to in clause 9.3,
whether created by or for us, and regardless of the circumstances in which it was created (whether created in connection with or independently of the Services);
(m) "Intellectual Property Rights" means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
(i) all rights in all applications to register those rights;
(ii) all renewals and extensions of those rights; and
(iii) all rights in the nature of those rights, such as moral rights;
(n) "Loss" means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
(o) "Related Entity" has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
(i) the services set out in the Quote, being Development Services, and/or Hosting Services; and
(ii) any other services that we provide to you including any Additional Services;
(p) "Term" means the term of this Agreement, commencing and expiring in accordance with clause 3.
2.1 Provision of Services
(a) We agree to provide you with the Services in the manner as specified in any Quote on the terms set out herein.
(b) In the event of any inconsistency between any term of this Agreement and any Quote, the terms contained in the Quote will prevail to the extent of the inconsistency.
2.2 Scope of Services
(a) The scope of the Services being provided is as set out in the Quote.
(b) You may request us to provide you with Additional Services (including changes or updates to the scope or support services), and we may accept or reject that request at our sole discretion. All requests for Additional Services are to be submitted to us by email to email@example.com.
(c) Please note that once we accept a request to provide Additional Services, those Additional Services will attract additional fees as set out in clause 6.5 and you agree to pay those additional fees. It is solely your responsibility to request a new Quote to view any additional fees payable, as we may not provide a new Quote unless you request it. We will continue to provide those Additional Services requested and you agree to pay those additional fees irrespective of whether we have provided you with a new Quote. For the avoidance of doubt payment of Additional Services is not dependent on receiving a new Quote.
(d) Please review the fees section below for further information of costs of Additional Services.
2.3 Quotes and Estimates
(a) Unless otherwise stated in a Quote or otherwise agreed by us, a Quote is only valid for acceptance for 30 days from the date of the Quote. We reserve the right to withdraw any Quote at any time in our discretion prior to the commencement of the Services (including after you have accepted the Quote).
(b) In the event that we provide an estimate to you, although we endeavour to estimate as close as possible to the price, this is only an estimate and we will not be bound by that estimate.
3.1 The provision of the Services will commence upon payment of the deposit, or receipt of the first payment of Fees and will expire in accordance with the terms of this clause.
3.2 Development Services
If you have ordered Development Services this Agreement will continue until we have completed those Development Services for you, following which the Agreement will automatically continue on a month-to-month basis for Hosting Services unless and until it is terminated in accordance with the terms of this Agreement.
3.3 Hosting Services
If you have only ordered Hosting Services then this Agreement will continue on a month-to-month basis unless and until it is terminated in accordance with the terms of this Agreement.
4. DEVELOPMENT SERVICES
4.1 The following terms set out under this clause 4 apply to any Development Services that we provide to you.
(a) In consideration of your payment of the Fees, we agree to grant you the right to access and use any software or client designed websites or any web-pages we create for you as part of the Services for the duration of the Term.
(b) The scope of access and use is limited as follows:
(i) use of the website is restricted to use in a client-side form (you are not permitted to access the server-side);
(ii) you must not permit any unauthorised person to access the website;
(iii) you have no right to (and will not permit any third party to) directly or indirectly copy, adapt, reverse engineer, decompile, disassemble, modify or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the website or software relevant to the Services or any other software, documentation or data related to the Services;
(iv) you must not modify, translate, or create derivative works based on the website (except and to the extent expressly permitted within the website); and
(v) you must not make any alteration to the server.
(c) We reserve the right to restrict your access to the Services in order to protect our Intellectual Property Rights.
4.3 Hosting of your website or software
Your software or client designed websites or any web-pages are only to be hosted on a server controlled by us. We will not host or support our software or client designed websites or any web-pages on servers not under our control. This is a strict policy of ours. Please review the below clause for hosting terms.
5. HOSTING SERVICES & DOMAINS
5.1 The following terms set out under this clause 5 apply to any Hosting Services that we provide to you.
(a) Please note that if we are only hosting your website and not developing it, the same rights to access to your website as are granted under clause 4.2 will apply to you.
(b) Once your website is live on a server controlled by us, you must choose one of our monthly membership plans. A list of our monthly membership plans as well as the price and the benefits included in the plans are as specified on the Website.
(c) You may switch plans at any time. The plan change will be effective at the start of the following month.
(d) For sites with high bandwidth usage quota restrictions do apply. High bandwidth usage is defined as over 1000MB/month. We will contact you if your website usage is approaching your monthly bandwidth quota. At present, 95% of our websites use under 1,000MB/month.
(e) On your request, we are able to provide you with access to 5 POP3/SMTP mail services on our server. Please note that we are not able to setup your devices for receiving/sending email. POP accounts are limited to 200MB storage per account.
(f) Backups are made of your website on a nightly basis. Note that backups earlier than one week are not archived, so it may not be possible to revert to a version of your website more than one day old.
(g) We provide client websites with a storage space of a maximum of 2GB in total, including email. In the event that you exceed this amount, we will provide you with cost-effective alternatives.
(h) In order to protect our rights and to prevent common hacking vulnerabilities of our server, FTP access will not be given. On our agreement only, SFTP access may be provided to restricted areas of your website.
We reserve the right to perform emergency maintenance without any prior notification, should it be deemed necessary to protect and maintain the security and integrity of the Services.
You acknowledge and agree that:
(a) we are not a domain registrar. Instead, we register domains on your behalf via a third party. The cost of domain name registration is non-refundable and is for a minimum period of 2 years;
(b) we are not responsible for any down-time, loss or damage suffered as a result of non-renewal or expiry of a domain name;
(c) domains may be re-registered on your behalf without prior notification near the expiry date to ensure continuation of services. When you point a domain at our servers, you may make use of our provided or third party DNS service. We are not responsible for any downtime or undelivered emails caused by any failure of our DNS service.
6.1 In consideration of us providing you with the Services, you agree to pay us the Fees in the amount and in the manner as specified in the Quote, or if no payment date is specified, at the time set out in any tax invoice that we issue you in respect of the Fees. The Fees consist of the following:
(a) In the event the Quote requires you to pay an upfront deposit, you must pay this on or before the Commencement Date. You acknowledge that we may not commence the provision of the Services until this Fee is paid.
(b) We will provide you with an invoice for the deposit in most cases. However, payment of any deposit is not dependent on us providing you with an invoice.
6.3 Monthly Membership Fee
(a) You must pay us the monthly membership fee monthly in advance during the duration that your website is hosted on our servers (while we provide Hosting Services). The monthly membership fee is non-refundable.
(b) We will provide you with an invoice for the monthly membership fee in most cases. However, payment of any monthly membership fee is not dependent on us providing you with an invoice.
6.4 General Fees
(a) All other fees will be set out in any Quote we provide you.
(b) We will provide you with an invoice for these fees and you must make payment of the fees before the due date as specified on the invoice.
6.5 Additional Services
(a) In the event we perform Additional Services for you, these will be charged out at our hourly rates as specified below or as advised to you.
(b) Our $80AUD/hr rate applies to graphic design and web marketing services only and may be changed without notice. Services including phone support, commissioned consulting, advanced custom programming, IT support and on site work are charged at custom rates as advised by written notice prior to commencement of work.
(c) All rates are measured in 15 minute units and will be rounded up to the nearest unit. For example if you engage us to provide consultancy for 22 minutes this will be charged as 30 minutes (two units).
(d) We will provide you with a new Quote in most cases. However, payment of any Additional Service is not dependent on us providing you with an invoice or a new Quote.
6.6 Late Payment
If you fail to pay any amount when due under this Agreement, you acknowledge that we may in our discretion:
(a) (if payment is not made within 7 days of the due date) suspend the provision of the Services to you, and we will not be responsible for any Loss you suffer because of this;
(b) (if payment is not made within 7 days of the due date) change your username, password or login details to any account or other account connected with the Services and withhold those details until you have paid all amounts owing; and/or
(c) (immediately) charge you interest calculated at 2% per month or the maximum amount allowed under Applicable Laws, which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.
6.7 Payment Terms
(a) We reserve the right to increase all Fees on providing you with 30 days' written notice. Such notice may be provided by posting the changes to our Website.
(b) If you have agreed to a direct debit arrangement, then you irrevocably authorise us to debit the Fees during the Term from your nominated bank account/credit card/debit card ("Account"), on or around the date that we generate an invoice in respect of the Fees without notice to you. You must ensure that your Account details are up to date at all times and you must notify us in the event that the details are no longer current, and provide replacement details. You also irrevocably authorise us to deduct all other fees and charges payable by you to us under this Agreement from your nominated Account. You warrant that any Account details you provide to us are your own.
(c) Unless otherwise stated, all of our Fees and any other amounts payable by you are to be increased by any goods and services tax payable on the supply of the Services.
(c) You must pay us all fees without set-off or counter claim under any circumstances.
6.8 No Refunds
Upon acceptance of a Quote, we allocate resources to your project and commit a significant amount of time to the provision of the Services, which may result in us rejecting other work. As such, unfortunately to the extent permitted by law all Fees and other amounts paid by you to us are non-refundable, including without limitation any upfront deposit. We may provide you with a refund on a case by case basis, however this is at our sole discretion.
7. YOUR OBLIGATIONS
You acknowledge and agree that you will promptly provide all information (including account passwords), documentation and assistance reasonably required by us in order to provide you with the Services as soon as possible on being requested to do so. Any delays may delay the project and may incur additional charges. Where you fail to supply this information to us, and that prevents the progress of the Services, we have the right to invoice you for any part or parts of the Services already completed as well as any additional fees we consider appropriate in respect of the delay.
Your use of our Services, and the information you provide to us and/or transfer through the Services, must not:
(a) be false, inaccurate or misleading;
(b) be unlawful, harmful, threatening;
(c) be abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, hateful, or racially, ethnically or otherwise objectionable;
(d) be invasive of privacy rights including to collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
(e) interfere with or disrupt the Services or servers or networks or other equipment connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
(f) be fraudulent or deceptive;
(g) contain any viruses, trojan horses, worms, data aggregation tools or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Services;
(h) infringe any third party's copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
(i) breach or violate any of our policies;
(j) use the Services in connection with unsolicited email or spam or advertisements;
(k) use the Services for any purpose that is not permitted under this Agreement, or in any way inconsistent with the purposes of the Services;
(l) create liability for us or cause us to lose (in whole or in part) the Services or custom of our internet service provider, other users or other suppliers; or
(m) violate any Applicable Laws.
We reserve the right to refuse to handle, terminate, remove or incorporate in the Services any material which we consider may be deemed offensive, illegal or in any way controversial, or that may infringe the terms of this Agreement or any third party rights. Verbal, physical, written or other abuse (including threats) of any of our customers, employees, members or officers will result in immediate account termination.
You acknowledge and agree that you are solely responsible for maintaining the confidentiality of your password and your account information. You acknowledge and agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.
Any time frames for delivery of the Services that we provide are an estimate only and begin from the time we receive the deposit/initial payment (if one is payable). Whilst we always endeavour to meet deadlines, sometimes it is not possible for us to meet a deadline and you agree that any deadlines we agree to (including those set out in a Quote) are non-binding on us.
9. INTELLECTUAL PROPERTY
9.1 Prior Intellectual Property Rights
All Intellectual Property Rights in any materials owned by either party prior to the Commencement Date shall remain the property of that party.
9.2 Your Intellectual Property Rights
(a) You shall retain ownership of any content provided by you to us (this includes any text content, graphics, flash animations, images or logos).
(b) You grant to us a non-exclusive, irrevocable, royalty free licence to use any content provided by you to us in order to enable us to provide the Services. Together with the right to sub-licence those rights to our hosting, connectivity and telecommunications service providers to the extent reasonably necessary.
(c) You warrant that any content you provide to us as part of the Services does not infringe the rights of any third party nor give rise to any liability to make royalty or other payments to any third party. Including without limitation in respect of any domain names.
(d) You acknowledge that you are solely responsible for any content you post, provide or make available through the Services.
9.3 Our Intellectual Property Rights
(a) You acknowledge and agree that we shall retain all rights, title and interest (including all Intellectual Property Rights) which subsist in or which may be obtained from:
(i) the Intellectual Property;
(ii) any materials or systems we create specifically for you in the provision of the Services; and
(iii) any works, items, materials or information of whatever nature produced or developed or discovered by us or you in connection with the Services, whether such property is tangible or is in the nature of industrial and intellectual property rights (including copyright and rights of confidential information).
Unless otherwise agreed in writing by us, you will have no rights, title or interest in or to the Intellectual Property other than the right to use it in accordance with the terms of this Agreement. For the avoidance of doubt, unless otherwise agreed in writing by us, no ownership rights or title in or to the Intellectual Property will ever be released to you.
(b) You must do all things and sign all documents necessary to give effect to this clause, including without limitation, doing anything necessary to assist us to obtain and maintain registration or to protect the ownership of any Intellectual Property Rights in the Intellectual Property. If you fail to immediately comply with this clause, you authorise us to do all things and execute all documents necessary on behalf of you to give effect to this clause.
(c) You acknowledge our rights, title and interest (including Intellectual Property Rights) which subsist in or which may be obtained from the Intellectual Property and undertake not to:
(i) take or permit or omit any action which would or might:
A. nvalidate or put in dispute our title to the Intellectual Property or any part of it;
B. oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it (including without limitation a registration of the Intellectual Property as a patent worldwide);
C. support any application to remove or undo our title in the Intellectual Property or any part of it; or
D. assist any other person directly or indirectly in any of the above;
(ii) use, copy, reproduce, distribute, export, adapt, alter, modify, translate, create derivate works, or publicly display any of the Intellectual Property anywhere in the world, without our prior written consent;
(iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Intellectual Property
(d) You acknowledge and agree that:
(i) we do not work for hire and that any works, items, materials or information of whatever nature that we create for you in connection with the Services is not governed by any work made for hire doctrine;
(ii) the website is provided as a service (software as a service) and is not licensed or sold to you. You are granted access on a monthly basis subject to payment of the Fees and the terms contained herein;
(iii) we may develop other websites, applications, software and pages that have a similar look and feel to any websites we develop for you, and provide others with services that are similar to the Services that we provide to you, and you must not object to this;
(iv) we may incorporate images and other representations of the Services that we have provided to you in our advertising, marketing, or competition materials at any time, including following completion of the Services.
9.4 Open Source Software and Third Party Copyright
(a) You acknowledge and agree that:
(i) we may use templates, other third party intellectual property and open source code in providing you with the Services, and the owner of such other property (which may be us or a third party) retains all copyright and ownership in that property. In that case, you will have a non-exclusive licence to use such property to obtain the full benefit of the Services;
(ii) we may incorporate images into the Services which are the property of third parties and which are subject to licence terms, which may include the payment on ongoing licence fees. Where we incorporate these images, you agree to be bound by and comply with all such licence terms and you are solely liable for all obligations thereunder;
(iii) although to the best of our knowledge, the use of any text, images or other content provided by us in the Services will not infringe on any third party, we cannot guarantee this and we provide no warranty in this regards.
You must ensure that your consultants, employees, agents, officers and advisers observe the covenants and obligations created under this Agreement.
10. CONFIDENTIAL INFORMATION
10.1 Other than where:
(a) disclosure is required to provide the Services;
(b) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
(c) expressly agreed by all parties in writing; or
(d) required by law;
each party agrees to at all times to:
(a) treat and keep the other party's Confidential Information confidential;
(b) not use, or allow the use, of the other party's Confidential Information by any third party; and
(c) not disclose or allow the disclosure, of the other party's Confidential Information or the fact of the disclosure of the other party's Confidential Information to any third party.
10.2 If requested, the other party will immediately return all of the first party's Confidential Information, and any copies of the Confidential Information, on completion of the Services.
11. BREACH AND TERMINATION
11.1 Right to terminate without reason
Either party may terminate this Agreement at any time and without reason by giving the other party 30 days' written notice. During the notice period, we will continue to provide you with the Services and you must continue to pay us the Fees.
11.2 Termination prior to the completion of the Development Services
In the event that this Agreement is terminated prior to the completion of the Development Services, you must pay to us on or before the date that the termination becomes effective:
(a) all outstanding Fees;
(b) our Fees in respect of the Services provided by us until the date of termination, which may not have been invoiced or fallen due as at the date you provide us with such notice of termination. We will provide you with an invoice in respect of this amount and such invoice is deemed to be conclusive evidence of the amount payable in this regard;
(c) at our sole discretion, a shut-down and archive fee, calculated for the time needed to prepare the closure of your account (this includes copying your website, the shut-down your website, storing a back-up and handing over domains).
Where a deposit is paid under this Agreement, those items identified in clause 11.2(b) will be applied to the deposit which is non-refundable. For the avoidance of doubt, any excess of the deposit is not to be refunded.
11.3 Our rights to terminate
Without limiting other remedies available to us at law, in equity or under this Agreement, we may, in our sole discretion terminate this Agreement immediately on giving you written notice if:
(a) you fail to pay any of our Fees within 7 days of their due date;
(b) you breach this Agreement and fail to rectify the breach upon being given 7 days written notice to do so;
(c) you suffer an Insolvency Event;
(d) we believe that your actions may cause legal liability for us or other clients of our business; or
(e) in our sole opinion, your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of our Services or us.
11.4 Your rights to terminate
You may terminate this Agreement immediately on giving us written notice if:
(a) we breach this Agreement and fail to rectify the breach upon being given a reasonable time of notice to rectify such breach (being a time not less than 14 days); or
(b) we suffer an Insolvency Event.
Termination of this Agreement shall be without prejudice to the rights and liabilities of the parties which arose prior to the termination.
12. EFFECT OF TERMINATION
12.1 On termination of this Agreement:
(a) you must immediately cease use of the Services;
(b) your access to the Services (including access to servers and any websites) will be immediately revoked with no further access to be provided by us;
(c) we will release the rights to:
(i) any logo or graphics designed specifically for your use;
(ii) any social media accounts we have set up on your behalf.
13.1 We provide our Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. We do not warrant or represent that our Services will result in increased sales, revenues, profits, customers, page views, or any other outcomes. To the extent permitted by law, we specifically disclaim any implied warranties including in relation to title, merchantability, fitness for a particular purpose and non-infringement.
13.2 Without limitation to the other terms in this clause, we specifically do not guarantee or warrant:
(a) the continuous, uninterrupted or secure access to our Services;
(b) that any information provided by us is up to date and accurate;
(c) that the Services will operate in combination with any other hardware, software system or data;
(d) that contact forms and emails are secure;
(e) that your content will be accurate or reliable or not be lost or corrupted;
(f) that it is possible to restore customer content from any back-up media;
(g) that we will be able to prevent unauthorised persons obtaining access to your customer data;
(h) that errors with the Services will be corrected;
(i) that the Services are free of viruses or other harmful components.
13.3 You acknowledge that you bear the full risk of any content you or your users place on the Services and that you are solely responsible for undertaking measures to prevent any loss, damage and security to your content including email. You further acknowledge that you take full responsibility for adding disclaimers and warning to any form that may encourage the transmission of confidential information.
14. LIABILITY AND INDEMNITY
14.1 You hereby indemnify and release us and our Related Entities from all Losses, damages, costs or expenses, including legal costs, in respect of all claims, demands, actions, proceedings or prosecutions which may be bought, commenced or prosecuted against us in consequence or relating to or arising out of:
(a) the provision of the Services;
(b) your use of and/or reliance on the Services;
(c) any breach of this Agreement by you;
(d) any wilful, unlawful or negligent act or omission by you;
(e) any claim made by a third party that any of your content infringed the Intellectual Property Rights of any person;
(f) he enforcement of this Agreement (including recovering any Fees which you fail to pay on time);
(g) any content we provide to you;
(h) any content you provide to us, or make available on the Services;
(i) any interception, dissemination or any other breach of confidential client information transmitted using the Services; and
(j) any lack of function in any component or element of the website or software;
(k) any loss or corruption of data and/or software (including any of your content and emails).
14.2 We shall not be liable to you in respect of any indirect, special, exemplary or consequential losses arising in any way in connection with this Agreement, including loss of profits or anticipated savings or revenue or income, use or production, business, opportunities or contracts, corruption of any data, database or software, special indirect or consequential loss or damage whether such losses are suffered by you or a third party and you hereby indemnify us in respect of same.
14.3 Subject to the above clause, our maximum aggregate liability to you for any loss or damage you suffer arising out of or in connection with this Agreement is limited to the actual Fees paid by you to us under this Agreement in the 1-month period preceding the matter or event giving rise to the claim (if any).
14.4 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of us in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the relevant Services or the payment of the cost of resupply.
15. EVENTS OUTSIDE OF OUR CONTROL
15.1 If we are rendered unable, wholly or in part, by Force Majeure to carry out or observe any of our obligations under this Agreement, we shall give you prompt written notice providing full details of the Force Majeure.
15.2 Our obligations under this Agreement, to the extent affected by Force Majeure, will be suspended and no claim by you will avail by reason of such Force Majeure provided that we, to the extent practicable, take all reasonable steps to remove the Force Majeure as soon as possible. We may require your assistance to overcome the Force Majeure and you must provide all reasonable assistance promptly.
15.3 For the avoidance of doubt, we shall not be liable for any Loss suffered by you as a result of Force Majeure.
16.1 This Agreement is governed by the laws of Western Australia and the Commonwealth of Australia which are in force in Western Australia and the parties submit to the jurisdiction of the Courts of Western Australia, relevant Federal Courts and Courts competent to hear appeals from them.
16.2 This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
16.3 This Agreement may be assigned by us without notice to you. You are not permitted to assign this Agreement without our prior written consent.
16.4 If a clause of this Agreement is void or unenforceable it must be severed or read down (as appropriate) from this Agreement and the clauses that are not void or unenforceable are unaffected by the severance.
16.5 Our failure to act with respect to a breach by you or others does not constitute a waiver of that breach by us
16.6 This Agreement comprises the entire understanding and agreement between you and us with respect to the subject matter hereof and any oral or other written agreements between the parties that are inconsistent with this Agreement shall be negated.
16.7 Nothing in this Agreement establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.
16.8 The Intellectual Property and Confidential Information clauses under this Agreement survive any termination or expiration of this Agreement.