Hosting AgreementPublish date: 14 Oct 2021
Table of contents
1 About this Agreement
Thanks for visiting our Hosting and Maintenance Services Agreement (Agreement), we are Ikora Rey Pty Ltd t/a Technology Coach ACN 632 132 177 of 1/8B Centenary Ave, Kingscote, SA 5223 (Technology Coach, we, our, us and other similar terms). We are committed to providing quality services and this Agreement outlines the terms and conditions related to the services we provide to you.
By subscribing to our Services, you agree to the terms of this Agreement. If you are agreeing to these terms on behalf of an organisation, you represent and warrant you have the power and authority to enter into and bind such organisation.
Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 18. They aid to clarify the terms and conditions. Please feel free to email us at [email protected] if you have any questions.
2 The duration and automatic renewal of this Agreement
This Agreement will commence when you create an account for a Hosting Plan and will continue for the Subscription Period. On expiry of each Subscription Period, this Agreement will automatically renew for a period equal to the Subscription Period until the date of termination in accordance with clause 15.
3 How we provide the Services
We will use reasonable endeavours to supply the Services pursuant to the terms of this Agreement until termination in accordance with clause 15.
You acknowledge and agree we use third party suppliers and sub-contractors to provide any part of the Services to you. We may change these suppliers at any time in our sole and absolute discretion. Should a change in provider occur, you acknowledge and agree we are fully authorised to move, alter or delete your data as reasonably necessary.
4 Payment of Fees to us
You are liable for payment of the Fees set out on the Hosting Plan or any other service selected by you. We may amend the Fees for our Services by giving you at least 30 days’ notice prior to the end of the then current Subscription Period. The new Fees will come in effect from the end of the current Subscription Period.
We will provide you with an annual tax invoice for the Fees. You must pay the invoice within 14 days of the date of the invoice.
Unless expressed otherwise, all Fees are quoted in Australian Dollars and are inclusive of GST, withholding taxes, duties and charges, imposed or levied, in Australia or overseas.
5 Important limitations and obligations related to your use of the Services
5.1 Your obligations in relation to the Services
You must provide us with such co-operation and support as we may reasonably request to perform the Services.
Where you or another user authorised by you requires an account to access your website, we will provide you with that account upon reasonable notice from you. You are solely responsible for the activities and the security of any website account you request.
5.2 Limits on your website’s resource use
All Hosting Plans have allocated bandwidth, storage, technology resources and other facilities which vary depending on the plan you have selected. If you exceed your plan limits, you may purchase additional bandwidth and/or storage, by upgrading your plan. If no advertised Hosting Plan meets your needs, please contact us regarding a custom Hosting Plan.
Any action or process that unreasonably consumes resources degrading the shared environment for other users is subject to review. This includes but is not limited to execution of scripts and the operation of any third party Plugins.
5.3 Conduct which is prohibited
We prohibit the use of our service for illegal activities, and you agree we may disclose any and all of your information, including assigned IP numbers, account history, account use, etc. to any law enforcement or government agency who makes a written request without further consent or notification to you. We reserve the right to immediately terminate the Service provided to you if, you are found to be hosting content or performing activities of an illegal nature or, unless otherwise agreed in writing, you:
(a) attempt to gain unauthorised access to or impair any aspect of our Service;
(b) execute any program which results in the rapid creation of large volumes of files;
(c) operate any form of mass email service;
(d) host streaming services;
(e) knowingly transmit any viruses or other disabling features to or via the Service;
(f) intentionally disable or circumvent any protection or disabling mechanism related to the Service;
(g) use the Service in any way which could be reasonably expected to interfere with or damage our systems or another user’s use of the services we provide;
(h) host Prohibited Content; or
(i) attempt any of the above acts or facilitate or assist another person to do any of the above acts.
5.4 Content which is prohibited
In respect of any content, you warrant your will not submit, host or store on the Service, anything:
(a) which is false, misleading or otherwise deceptive in any way;
(b) which promotes unlicensed or illegal financial products;
(c) which is improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(d) used for or in connection with cybercrimes;
(e) which includes nudity, sex, pornography or adult-oriented content;
(f) containing any computer virus or malicious code;
(g) which infringes any third party Intellectual Property rights;
(h) that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age or sexual orientation;
(i) in breach of any law in Australia or the jurisdiction in which you operate; or
(j) any other content deemed inappropriate in our sole discretion.
We reserve the right to take down and destroy any content which you submit without notice. It is entirely your responsibility to keep copies of any content uploaded to the service and you must not rely on us storing copies for you.
6. When we may suspend access to your website
We reserve the right to suspend your use of the Service at any time if you consume excessive resources, engage in Prohibited Conduct or you submit, host or store Prohibited Content.
If any Fees remain unpaid more than 14 days past their due date, we may, without limiting our other rights and remedies, suspend your access to the Services until such amounts are paid in full. We will provide you with at least 7 days prior notice that Fees are overdue before any such suspension.
Suspending your access will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Fees.
7. Important provisions related to Domain Names
If we procure a domain name on your behalf you acknowledge and agree we do so as an agent for you and you are solely responsible for complying with the domain name policies, including but not limited to the ICANN and .auDA domain name policies.
Unless otherwise agreed in writing our Fees for domain names do not include the price of Premium Domain Names and you are solely responsible for your domain name including managing, transferring, renewing or otherwise maintaining the domain name, as required by you.
8. How we provide Maintenance Services
Where our Hosting Plan includes Maintenance Services, we will undertake those Maintenance Services in accordance with that plan. Where we offer to update WordPress or other Plugins we do so in accordance with the software vendor’s recommendations. We are not liable for any faults, bugs errors or changes in functionality of updates provided by third party software vendors.
Where we offer Maintenance Services in relation to Plugins, we do so only for those Plugins which form part of our standard website install. Unless otherwise agreed in writing we do not update Plugins which are unique to your website or are industry specific.
Where we offer backups in relation to the Maintenance Services, we will perform backups of your website in accordance with the inclusions in the Hosting Plan. However, we do not guarantee there will be no loss or corruption of data. We will support you and attempt to recover your website from the backups, but you acknowledge and agree we are not liable for the integrity of your backups or the failure to successfully restore the website. You agree to keep a copy of the content on your website at a location distinct from the Services we provide.
9. Warranties which we provide in relation to the Services
We warrant that for the Subscription Period our Service will perform substantially in compliance with the description of the Service contained on our website.
While we aim to provide the best possible user experience, subject to the Non-excludable Conditions, we make no warranties or guarantees:
(a) the Services are fault free;
(b) regarding our Service’s fitness for any particular purpose which we have not expressed; or
(c) regarding your access to, or the results of your access to, the Services.
10. How we provide Support and limitations
You acknowledge and agree the infrastructure which hosts your website is operated by third parties (Third Party Infrastructure). From time to time the Third Party Infrastructure may become inaccessible or unavailable. We neither control nor are we liable for faults in Third Party Infrastructure, the telecommunication services needed to access it, nor the consequences which arise from faults in either.
We will provide support in respect of our Services via our support desk, contacted via [email protected].
We may, acting reasonably, alter aspects of the Services or cease supporting them from time to time. No end of life decisions for such Services will result in a breach of the Agreement.
11. Provisions relating to privacy and confidentiality
We may disclose information, including, but not limited to, your personal information, a transmission made using our network, or a website, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of our Services (Permitted Disclosures).
You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made.
12. About Intellectual Property
We warrant we own or have a licence to use the Intellectual Property in the Services we provide.
You are solely responsible for obtaining any and all necessary Intellectual Property rights, clearances, consents and authorisations (Authorities), including but not limited to, Authorities to use any materials you give to us and any content that you upload to the Service. You warrant you will obtain all necessary Authorities before you use any third party Intellectual Property in connection with the Services.
You grant to us (and our suppliers) a licence to host, cache, modify, publicly display, reproduce, prepare derivative works of, and distribute the entirety of your website, including data and content supplied by you and/or third parties. You warrant that you hold any agreements or consents required of any third party in connection with the grant of this licence.
Nothing in this Agreement transfers to you any rights to the hardware, software or other infrastructure and facilities used by us or our suppliers to deliver the Services. All Intellectual Property in any materials provided by us in connection with the Services (including websites, designs, information, reports and data) other than your pre-existing Intellectual Property, remains ours. We grant you a revocable, non-exclusive, royalty-free licence to use those materials for the purpose of using our Services.
13. Limitation of Liability
You acknowledge and agree you are entering into and acquiring services under this Agreement for commercial purposes and not for domestic, personal or household use.
We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
Subject to the Non-excludable Conditions, we exclude all other liability for any costs, suffered or incurred directly or indirectly by you in connection with this Agreement, including:
(a) any WordPress or Plugin updates which cause your website to present bugs or otherwise fail to perform as anticipated, whether or not we were responsible for the installation of WordPress or the Plugins;
(b) Consequential Loss;
(c) the Services being inaccessible for any reason;
(d) for any delay or failure to perform our obligations under this Agreement if such delay or failure is due to termination of access to the Service by the supplier of the Service or as a result of a change to the conditions of supply by that supplier;
(e) incorrect or corrupt data, lost data, or any inputs or outputs associated with the Services;
(f) computer virus, trojan and other malware in connection with the Services;
(g) security vulnerabilities in the Services or any breach of security that results in unauthorised access to, or corruption of data;
(h) negligence arising from our activities or that of our suppliers;
(i) any unauthorised activity in relation to the Services;
(j) the occurrence of an Event of Force Majeure;
(k) your breach of this Agreement; or
(l) any act or omission by you, your personnel, your associates or any related body corporate of yours.
Where a Non-excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:
(a) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(b) in the case of services: the resupply of the services; or the payment of the cost of having the services resupplied.
To the maximum extent permitted by law, our aggregate liability for any loss or damage in connection with the provision of the Service or in connection with this Agreement, which is not excluded or limited under this clause 13, is limited to the total of the Fees paid by you for the Services over the preceding month.
A party’s liability for any loss or damage under this Agreement will be reduced proportionately to the extent the relevant loss or damage was caused or contributed to by the acts or omissions of the other party, including any failure by that other party to mitigate its loss.
14. Indemnity against your use of the Services and breach of this contract
You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of the Services including any costs arising from your breach of any term of this Agreement; a dispute between you and a customer or user of your website arising from your use of the Services; your infringement of any third party Intellectual Property rights associated with this Agreement; or your breach of any laws, including the Spam Act 2003 (Cth), the Privacy Act 1988 (Cth) and similar laws in other jurisdictions.
15. How this Agreement may be terminated
Either party may terminate this Agreement by providing the other with notice in writing at least 30 days prior to the end of any Subscription Period, and upon doing so this Agreement will terminate at the end of the Subscription Period.
Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 30 days after the receipt of notice to remedy. If we terminate a service for a breach, we may immediately cease any of our other services which we provide to you.
(a) your account will remain active for 7 days during which you may transfer your data off our platform;
(b) we reserve the right to permanently erase any data associated with your account 7 days after termination; and
(c) you must immediately pay any outstanding Fees owed to us (your obligation to pay outstanding Fees survives termination).
16. How we resolve disputes if they arise
A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 16 before commencing any legal proceedings.
If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, in Adelaide, Australia, and unless otherwise agreed between the parties using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
Each party must pay its own internal and legal costs in relation to complying with this clause 16. The mediator’s costs are to be shared equally.
The parties acknowledge and agree this clause 16 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.
17. General provisions
Assignment – We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent. You must not assign, encumber, declare a trust over or otherwise create an interest in your rights in this Agreement without our consent, which must not be unreasonably withheld.
Entire Agreement – This document and the policies incorporated by reference contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
Force Majeure – If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties’ obligations under this Agreement, other than an obligation to pay the Fees, are suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may end this Agreement if the Force Majeure continues to affect the rights and obligations of the parties, under this Agreement, for more than 60 days.
Governing law – The laws of South Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
Severability – Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.
Sub–contracting – We may sub-contract any of our obligations under this Agreement, but such sub-contracting will not release us from our liabilities.
Variations to this Agreement – We may vary this Agreement, including by making changes to our Fees, by giving notice to you at least 45 days prior to the end of the Subscription Period. If you do not accept the terms of the variation you may terminate your subscription in accordance with clause 15. By continuing to access or use the Services after any variations to this Agreement, you agree to be bound by the amended Agreement.
18. Definitions and interpretation
Agreement means this Hosting and Maintenance Services Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages The parties acknowledge and agree that your obligation to pay us the Fees and any other amounts due and payable by you to us under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Fees mean all subscription fees associated with Hosting Plans, domain name registrations and any other fees associated with the Services you procure from us.
Hosting Plans means the hosting package setting out the inclusions, either on our website or as otherwise agreed in writing between the parties.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Maintenance Services means any maintenance, update or backup services offered as part of a Hosting Plan.
Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Plugin means any third party software used to provide website features as updated by the third party software vendor from time to time.
Premium Domain Names means domain names ending in anything other than .com, .net, .org and the country code specific domain versions of each of these for Australia (.au).
Prohibited Conduct takes its meaning from clause 5.3.
Prohibited Content takes its meaning from clause 5.4.
Services means the Hosting Plans, Maintenance Services and other related services which you subscribe to or otherwise obtain from us.
Subscription Period means the duration you signed up for when requesting a Hosting Plan and in the absence of any stated term, then Subscription Period means 1 year.
Third Party Infrastructure takes its meaning from clause 9.
WordPress means the third party content management system used to operate the website.
In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement